Proposed digital copy protection legislation (MANY USEFUL LINKS) (1 Viewer)

[Thomas Newton]

Exactly. And copies for personal use are not "unauthorized" but in fact have been declared perfectly legal by the courts.

Not quite. Time-shifting is perfectly legal, but that does not make the copy "authorized" by the copyright holder.

It doesn't matter whether the copyright holder "authorizes" a copy if the copyright DOESN'T grant an exclusive right to that type of copying. Fair Use is all about limitations on exclusive rights.

 

[Rachael B]

Thomas, , so, you're suggesting that companies like, say, Sony that sold us Mindisc recorders and CD recorders, and also is a software vendor sold us this stuff to make unauthorized copies? You're on the wrong path. Sony, and the rest of the "big 5" want to change the business model of the music biz to not include any kind of digital recording for consumers, maybe not any kind of recording?
They've made beaucoups of money off of the current market, but they think they can make more money by changing the market to one of their choosing. That's what they're trying to do.
The digital war is coming on multiple fronts. Tivo, mutant CD's, D-VHS, DVI, ect. The big 5 thinks this is the time to strike, apparently.

 

[Thomas Newton]

Rachael,

I'm talking about the definitions of words and the law, not about what the content vendors have planned.

Universal and Disney sued Sony to block or to tax the VCR. They clearly didn't "authorize" timeshifting of the shows to which they held copyrights. Fred Rogers testified that he had no problem with people taping his shows; he clearly was "authorizing" timeshifting of Mr. Rogers Neighborhood, with his testimony.

The Supreme Court ruled that timeshifting was legal Fair Use, whether "unauthorized" or not.

For all we know, the studios that sued over the VCR might still consider timeshifting to be "unauthorized". Doesn't mean they have a legal right to stop it, or that there is anything wrong with someone selling you a VCR designed to aid you in this "unauthorized" activity.

The content industries aren't the Government, as much as they might like to be.

 

[Rachael B]

Oh Thomas, that' a horse of another, other colour. So, like, you are totally into "unauthourized lending" too, coool! Can, you dig it? I knew that you could. I get a sarcastic mood going when I talk about the big five. As one of their best customers, I get tired of being insulted by them. It's like we're all video pirates on this bus, or boot-leggers, or hackers, or like, worse yet, informed consumers.
Me, I'm too busy lately to boot-leg any because I'm busy working on a new computer virus I call MAC. When implemented it will cause everybody's computer to stop for a two minute break and give the user M-ilk A-nd C-ookies, thus MAC. It's a devious plan. I got the idea from Dr. Evil.
I do feel particularly silly 2-day and I may be walking funny again too? Best wishes!

 

[Thomas Newton]

Rachael,

I'm not talking about bootlegging, or about phrases out of an Austin Powers film.

The Supreme Court drew a clear distinction between unauthorized use and infringing use in their ruling in the Betamax case. All infringing use is unauthorized, but only some unauthorized use is infringing.

Mom and Pop video stores engage in one legal form of "unauthorized lending," but there's another, much older variant that enjoys even stronger support. It's practiced by an institution known as the public library.

If you were trying to demonize public libraries, you might say that U.S. copyright law allows public libraries to "promisciously" engage in "unauthorized lending" of "valuable copyrighted books." Notice how the sentence is technically accurate, and yet manages to falsely imply (to people not familiar with copyright law) that (a) libraries are shady, and (b) publishers ought to have the final say over whether libraries are allowed to exist.

 

[Rachael B]

Thomas, I caught on to your drift. It's just that I love reading disclaimers and unauothorized lending tickles my fancy. Who am I allowd to lend to? My mom, blood relatives, my dog, the Green Bay Packers, neighbhors who live within 200 feet...? It's a burning question! Best wishes!

 

[Thomas Newton]

If you like silly claims, consider how Hillary Rosen reacted to Senator Hatch's question (the other year) as to whether making a tape of a CD to give to a spouse constituted Fair Use.
According to a Wired article, Rosen refused to answer and "replied that Hatch was 'leading me down the Napster path.'" (This is after Hatch had to tell her that making a tape for his car of a CD that he had purchased was Fair Use.)
I listened to an audio recording of the Senate hearing, and a little bit later, Rosen claimed that "none of these things are Fair Use."
Senator Hatch said that if he bought a CD and made a copy for Senator Leahy, his friend, that would probably be Fair Use.
Looks like Mrs. Hatch 1, Hillary 0.

 

[Rachael B]

That was fun Thomas! Thank you sir can I have another? Best wishes!

 

[Bob_J_M]

I concur with Thomas on the legal issues.

As you all probably know, Sonic Blue has just recently been ordered by the court to monitor the usage patterns of their customers to determine whether or not people are skipping the commercials and/or sending programs to other people (apparently, the Sonic Blue PVR has a networking feature that allows you to send out 15 copies of a program over the internet).

The commercial skipping issue is serious, no matter how silly we may think it is. The advertisers pay to get their commercial message delivered to our eyes. If technology makes the traditional commercial spot obsolete, then the only real alternative, aside from abandoning or encrypting broadcast TV, is to alter the way advertising is delivered (i.e. to outfox the technology). I'm not sure the people who make and use these handy commercial-avoidance features realize that they are hastening the demise of the relatively-benign, easily-ignored commercial. Perhaps the best thing that could happen is to have the courts rule against Commercial Skip, Advance, Obliterate, etc. and protect ye olde commercial spot, such that we can continue to ignore the ads as we always have.

 

[Scooter]

http://www.hometheaterforum.com/htfo...threadid=68545

 

[Ryan Wright]

If technology makes the traditional commercial spot obsolete

... then broadcasters will have to find a more appropriate revenue stream. It's not up to congress or the courts to protect an obsolete business model. If it were, the automobile would have been declared illegal long ago to protect horse breeders and buggy manufacturers.

 

[JohnRice]

It's not up to congress or the courts to protect an obsolete business model.

In theory, you are right. The world often doesn't end up working that way, though. Congress and the courts have done far more bizarre things.

 

[Bob_J_M]

I agree with John. From the consumer's selfish viewpoint, it is counter-productive for the courts to protect an obsolete business model. However, the courts have to uphold the law and the law has to balance the concerns of each party to the benefit of society as a whole. The law gives the copyright holder some freedom and control over their business model. The court cannot say: "Mr. Plaintiff, you are using the wrong business model -- if you switch to this other business model, the copying activity we're ruling on wouldn't be infringing and you'd be better off anyhow." It may only be a matter of timing. The copying activity in question may be harmless ten years from now, but at the moment, it may devalue the work in its existing markets. The courts probably won't ignore that. Plus, the courts are not myopic consumer advocates. They understand that switching business models takes time and money. Hurrying the process may create an unmanageable burden on the industry. Congress may want to put pressure on industry to make changes, but the courts shouldn't have this responsibility.

 

[Ryan Wright]

The court cannot say: "Mr. Plaintiff, you are using the wrong business model -- if you switch to this other business model, the copying activity we're ruling on wouldn't be infringing and you'd be better off anyhow."

We're not talking about infringing behavior here. We're talking about skipping commercials, which is absolutely not infringement. The fact is that the broadcast industry's business model is to make money by selling commercials to advertisers with the hope that we will watch those commercials and buy their products. Technology has caught up, however, and we can now skip past the commercials instantly. I have the right to record television for later viewing, and I also have the right to refuse to watch any part of that recording.

Unfortunately for the industry, less people are watching commercials now. Therefore, they ARE going to have to find a new business model, and yes, the court CAN say, "We're sorry. You can't force people to watch commercials and we're not going to help you. Looks like you'll have to find a new business model."

Imagine I am an author. I write thousands of books and they are read by nearly everyone in the country. I give the books away for free to anyone who wants one - indeed, I ship them to every household via carrier pigeon. If you want my book, all you have to do is put a special antenna on your roof with a box on top of it and my pigeons will automatically place the books into that box for you.

Now, I can't make any money giving these books away like this - or can I? Let's say I hatch a plan to place a handful of advertisements right there in my book. A quarter of the pages in any given book contain advertisements, and advertisers pay me to do this. Somehow, I am able to set a timer on the book that will not allow you to turn a page containing advertisements until you have looked at it for 3 minutes. So, some people actually sit there and stare at the page until the timer elapses, while others simply put the book down and do something else (use the restroom, fix a snack, see what's written on other books).

All is well for decades until one day, somebody develops the scissors and people begin cutting the pages containing advertisements out of my books. Now, they don't have to wait to flip those pages - they can just pull out their scissors, cut the page off, and be reading the next page in just a few seconds.

Do I have the right to cry and scream bloody murder because my business model is no longer viable?

Should congress pass a law restricting the sale of scissors?

Should a judge mandate that all users of scissors must be monitored every time they use their scissors and the resulting data given to me?

Or should I conclude that my business model was stupid in the first place, that I'm lucky it worked as long as it did, and that it's high time to figure out a better way to make my money?

 

[Bob_J_M]

If you need me to be more precise, I would restate "The law gives the copyright holder some freedom and control over their business model" like so:
The copyright holder relies on the copyright laws to protect their business model, but the copyright laws are blind to the wisdom or effectiveness of the business model. So if the TV people want to persist in using archaic commercial spots, the law will blindly protect their right to do so.

We're not talking about infringing behavior here. We're talking about skipping commercials, which is absolutely not infringement.

No, we're talking about making a copy of a work for the primary purpose of conveniently skipping the commercials, which is infringement. Pure time shifting on it's own is considered fair use. However, if you partake in a copying activity that, if repeated by many others on a large scale, would harm the value of the copied work in any potential market, this is infringement.
The court could decide that the potential harm from the infringing activity is minimal, because people can ignore commercials in a variety of ways. The plaintiffs must prove that the technology results in substantially reduced attention to commercial messages and, secondarily, that this reduced attention would most likely have an effect on advertising rates if these devices became wildly popular.
Regarding your wild and wacky analogy: You have not made a copy, so you have not infringed the copyright. Scissors have substantial non-infringing uses, so even if they could be used to, say, cut a copyrighted article out of a paper which you then paste into a book and sell, the scissor, glue and paper makers would not be dragged into court for contributory infringement.
I hear what you're saying, but remember that we pay to share another person's organized words, images and sounds because the copyright law says we must. In a sense, the business model for all copyright holders is the same: Use the copyright law to generate income; Lather; Rinse; Repeat. If a company crosses the line and makes a device that contributes to unlawful activity, they stand to lose in court. It doesn't matter if they've invented the most useful thing since the remote control.
All of what I say is well-documented in the most famous "fair use" court cases -- the Sony, Rio and Napster cases. Read these cases if you dare to understand the bizarre world of copyright law.

 

[Thomas Newton]

The basic functions of the PVR are clearly protected by the Betamax decision, but suppose, for the sake of argument, that the courts banned the commercial-skip feature. There are two checks and balances:

1. The courts can't ban the FAST-FORWARD button.

2. Congress and the President could amend the copyright law tomorrow, to state unambigously that you have a legal right to use technology to skip commercials.

 

[Bob_J_M]

Right, the FF button has substantial non-infringing uses, whereas commercial skip exists only to support infringement. They can make the claim that fast-forwarding in 30-second or 1-minute chunks has substantial non-infringing uses, but I'm not sure that will fly (especially when you've named the thing "Commercial Skip" or "Commercial Advance").

And yes, a law could be written, clarifying that it is fair use to make a personal copy of a work for the purpose of extricating advertising messages. Stranger things have happened. I expect any such law would not disallow the use of technology to deliver the advertising messages. Obviously, then, this would start a technology war (or, I should say, heat up the existing war), where those who depend on advertising revenue use technology to make it more and more difficult for the consumer's technology to remove the advertising. This is one way of solving the issue. It gets the issue out of the courts and onto the technological battlefield but I have to wonder: Is this what we want? Maybe, but I need a little more convincing.

 

[Matt Perkins]

Here's another take on the commercial-skipping issue, from FindLaw.

 

[Bob_J_M]

Allow me to climb on the soapbox for another related issue(how far off topic am I now, I wonder?). Labeling. If a video cassette or DVD includes x minutes of product advertising at the beginning that I am forced to play in its entirety (DVD) or fast forward over (VHS), I want the product to state this on the box. I will then avoid products that have excessive advertising. The same goes for movie theaters. I'd like to know in advance how many coming attractions I will have to endure. More importantly, I want to know if there will be commercials before the movie. To me, this practically ruins the movie experience. I will gladly seek out theaters that don't run TV-like commercials. Product labeling is also extremely important where copy protection is used. All content should be labeled, stating the nature of the copy restrictions, output restrictions, etc. Proper labeling is something we can and should demand as consumers.

 

[Bob_J_M]

Chris Sprigman (writer of the FindLaw article) has a valid opinion. He has a deeper understanding of the facts and legal issues than the average person. However, I think he is wrong on a couple of important points:

Most importantly, he misses the historical context of the Sony decision. VCRs were new, then. The courts didn't fully consider whether ad-skipping might devalue the copied work in the broadcast market. Four members of the Supreme Court, in their dissenting opinion, allowed that it might be a problem and their recommendation would have been to have the lower courts investigate it further. The District Court apparently was of the opinion that people would be "too lazy" to skip the ads - or something like that. The Supreme Court's majority opinion failed to address the issue specifically. Perhaps that was because the only feature that allowed ad skipping at the time was the FF button and it had obvious substantial non-infringing uses - and it also was difficult to envision any way to implement a FF button without allowing possibly-infringing uses. But this is only conjecture on my part. It could also be that they simply didn't look at the issue because they were busy looking at bigger issues - like time shifting, space shifting and librarying.

One thing is clear from Sony vs. Universal: Pure time-shifting for personal convenience is fair. By "pure," I mean time-shifting whose sole purpose is to delay the broadcast to a more convenient time, with the copy being overwritten or otherwise discarded after it is viewed. In my opinion, no other controversial copying purposes were clearly deemed "fair" by this case.

However, if skipping an ad with Replay is infringement, then skipping one with a VCR is too...

Here, Sprigman seems to be insinuating that, because the plaintiffs did not sue over the commercial-zapping features in VCRs, these features must be legal. I don't recall any law that copyright holders must assert their rights whenever they are aware of infringement. Regardless, the machines are not equivalent and the PVR presents a new issue for the court to decide.

With the aid of the commercial skipping feature, the PVR can be used to watch commercial-stripped TV without any substantial time shift. This is a different application (i.e. there is a different purpose) than the pure time-shifting that was previously ruled fair by the courts. I'll be shocked if the courts don't rule this as an infringing use. ...Not to say that they'll necessarily find for the plaintiffs.