Fast-forward... directly to jail

If you must break only one law today, may I humbly suggest letting today’s Aimster decision be your guide:

[C]ommercial-skipping, amounted to creat-
ing an unauthorized derivative work, see WGN Continental
Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 625
(7th Cir. 1982); Gilliam v. American Broadcasting Cos., 538
F.2d 14, 17–19, 23 (2d Cir. 1976); cf. Ty, Inc. v. GMA Accesso-
ries, Inc., 132 F.3d 1167, 1173 (7th Cir. 1997), namely a
commercial-free copy that would reduce the copyright
owner’s income from his original program, since “free”
television programs are financed by the purchase of com-
mercials by advertisers.

(The full text of the decision is here. See also Professor Felten’s comments here. It should be noted that this absurdity is not the responsibility of the Aimster judge, Richard Posner, but is in fact part of the original Sony case that established the legality of the VCR. Posner is just noting it.)

The illogic of this is almost beyond description. Is it similarly a violation to walk out of a movie theater in the middle of the film? How about to walk out and demand a refund? How about to show up late and miss the previews? How about to go to the movies, but not buy any popcorn—since the theater is financed by the purchase of popcorn by movie goers?

Back at home, is it also illegal to press the ‘mute’ button during commercials? Or to get up and go to the bathroom? What if your house is on fire—is it illegal to flee before the end ‘Golden Girls’? How about to deride the commercials as they air, and persuade your family and friends not to buy the products advertised? If the advertisers are boycotted, they might stop advertising, which would reduce the copyright owner’s income rather dramatically. What about channel surfing—am I creating an illegal derviative work when I flip from a bad Simpson’s rerun to the BBC world news? How about watching the first few episodes of a program with a ‘story arc’, but not the rest; isn’t that just as much a ‘derivative work’? Once I’ve seen five seconds of ‘24’, am I legally obligated to watch the rest?

How about blinking? Clearly, one blink per hour is not copyright infringement. But if you close your eyes through the entire duration of a commercial, you are deriving and reducing, just as much as if you fail to watch the commericial by fast-forwarding—maybe more! So, there must be a maximum ratio of eyes-closed to eyes-open that is legal while watching TV. Maybe the networks should add an “allowed blinks per minute” graphic to the ubiquitous branding bug in the lower righthand corner of the screen.

But, these violations only count for taped or otherwise recorded shows, you say. Ok, then: once I’ve taped 5 seconds of ‘24’, am I legally obligated to tape, and watch, the rest? Is it illegal to record 15 minutes of a late-night informercial over the beginning of a good Simpson’s rerun? Is it only illegal if you do it on purpose—but legal if you accidentally misprogram your VCR? (And what if the guy in the informerical looks just like Troy McClure, and the Simpson’s rerun features a Troy McClure infomercial?) Is the electric company liable for millions of dollars in copyright violations if the power goes out all over the city, preventing thousands of VCRs from recording the last commercial break in an episode of ‘Friends’?

Where is the line? Appeals to common sense are obviously moot, so, Hollywood, Judges, Congress people—where is the line? Assuming I want to tape shows at home and somehow stay on the good side of copyright law, how can I possibly do it? Where is the guidebook that tells me which apparently-innocuous behavior is ok, and which is illegal?

Filed under: copyright