The Tivo Question: Does Skipping Commercials Violate Copyright Law?
57 Pages Posted: 10 May 2006
The digital video recorder (DVR) has introduced the most convenient way of watching television - without commercials. Its popularity has caused television networks to lose advertising revenues. Incentives for creative programming are on the decline. But the policy of copyright law is to provide and protect such incentives. Copyright law should therefore intervene to protect creative incentives that DVR manufacturers are stripping away from television networks. This conclusion is consistent with copyright jurisprudence. Although the Supreme Court decision in Sony v. Universal Studios seems to shield distributors of television-recording devices from liability, a close examination of Sony reveals that its facts are dispositively distinct from the DVR context in three ways. First, in Sony users of the video cassette recorder ("VCR") did not use it to skip commercials. This fact was necessary for the Court to reach its holding that VCR usage constituted a protected fair use. In contrast to this fact, DVR users skip over 90 percent of recorded commercials. Second, in Sony the VCR manufacturers did not encourage users to reproduce copyrighted broadcasts. DVR manufacturers do. This factual distinction is particularly relevant in light of the recent Supreme Court decision in MGM v. Grokster. The Grokster Court declared that a device's capability to perform noninfringing uses is of no consequence where the distributor encourages infringement. Third, in Sony the VCR was apparently not used to prepare altered versions of copyrighted programming. The DVR, however, is widely used to prepare such altered versions, i.e., commercial-free broadcasts, which are arguably infringing derivative works. Based on these three distinctions, Sony should not prohibit copyright law from protecting the creativity underlying television broadcasts. DVR manufacturers should be contributorily liable.
Keywords: Copyright, TiVo, DVR, Sony, Grokster, Intellectual Property, time-shifting, contributory infringement, digital video recorder, VCR
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