Comments on: Commercial free TV

By: JRoth

JRoth — Thu, 10 Jul 2003 20:49:51 +0000

Well, this once again confirms my long-standing opinion that Richard Posner is a freaking idiot – and a dangerous one, at that. What boggles my mind about Posner – this goes for Scalia as well – is that he continually spews these specious arguments, some of which tortuously follow from precedent, others of which flatly contradict both the legal and plain senses of precedent (Bush v. Gore, most obviously), and all the while, people laud his brilliance. It’s the brilliance of a confidence man. What’s the line – if you can’t dazzle them with brilliance, baffle them with bullshit? Regarding this absurd issue (and I must immediately insist that, legalism aside, Posner’s opinion fails the laugh test), it seems to me that the flaw lies in the notion that there exists a contract between viewer and broadcaster. The contract’s between the advertiser and the broadcaster. The broadcaster has gotten access to a transmitter; the advertiser thinks that broadcasting his message will benefit him, and so he pays the broadcaster. The broadcaster transmits that message (along with some fluff to encourage people to pay attention) into the ether. Contract completed. Now, what happens to that message once it’s broadcast is noncontractual. I’m not obliged to put a coin in a busker’s hat, nor am I obliged to put in earplugs if I choose not to toss a coin. That’s the risk the busker undertakes when broadcasting his music. Now, if I tape the busker and sell copies, I have infringed on his (all together now) COPYright (assuming it’s all original material, or public domain). Do I need to finish this analogy? I would no more be allowed to sell copies of Friends with commercials than without. The transaction between advertiser and broadcaster is complete, and was finalized at 8:30 last Thursday. Anything that happens after, as long as no money changes hands, is fair use. Presumably, Posner also opposes not only public libraries, but also the piratical practice of yard sales of used books, leave alone the disgusting practice of (avert your eyes, gentle readers!) giving a book you’ve finished to a friend.

By: Matt Weiner

Matt Weiner — Thu, 10 Jul 2003 19:40:03 +0000

Poop. This thread is guaranteed to be stale by the time Posner feels at liberty to post. Thanks for your enterprise, though.

By: jhp

jhp — Thu, 10 Jul 2003 19:33:52 +0000

All of my ha-ha arguments pale—no, beyond pale, they vaporise—beside Derek Slater’s well-researched and -reasoned nuclear obliteration of Posner, which you can find here: http://blogs.law.harvard.edu/cmusings/2003/07/10#a258 (opens in new window) Now I’m really really done beating the horse.

By: ogged

ogged — Thu, 10 Jul 2003 16:21:02 +0000

Matt, I emailed Posner’s assistant asking if he would enlighten us. She just wrote back. “I’m sorry, but because the Aimster case is still pending, Judge Posner has said that he cannot comment on the opinion.”

By: Matt Weiner

Matt Weiner — Thu, 10 Jul 2003 14:29:31 +0000

Do folks think that the remote-control mute button is infringing? (Boy, I wish we could get Posner to answer these comments. He probably spends all his blogging time reading Insty and Volokh, though.) Seriously, arguably its main purpose is to make the commercials much less prominent, and a program with no sound some of the time is an alteration in the same way as a program with bits fast-forwarded out. I also wonder whether, by Posner’s lights, it is infringing of me to cut out the ads from a magazine. Perhaps there the issue is that I’ve paid for the magazine—but of course the cover price doesn’t cover the costs. Well, I’m sure that it’s pretty easy to draw a bright line here; something like, if you own a copy of something, it’s legal for you to do what you like with your copy as long as you don’t disseminate it.

By: kog

kog — Thu, 10 Jul 2003 05:57:07 +0000

In Posner’s view the property right to your eyeballs is possesed by the producers of TV programming. They have a right for you to see the commercials they air. You have a duty to watch. Well, with all due respect, f**k Posner. I say I have the right to ignore commercials. And they have a duty to make me want to watch. Posner’s view favors those with lots of time and not much money. (They want their “free” TV.) There is no “social contract” compelling me to waste my valuable time on free commercials. There is only a norm, arising by happenstance, and eroded for years, to which TV producers and some viewers have grown accustomed. If “free” TV unravels as eyeballs disappear, so be it. I can and will pay for my right to skip commercials. So far my cost is the cost of my TIVO. The “special interest group” of unimaginative TV producers and cash poor viewers would like to reimpose the costs of commercial watching on me so that they don’t have to go to the trouble of changing their business plans or viewing habits.

By: aelph

aelph — Thu, 10 Jul 2003 05:47:05 +0000

But if there are advertisements in the recorded program, you must watch them. Otherwise, you are failing to “pay” for it, which you do by watching ads. Hmm… The agreement I entered into with my cable TV provider when I contracted for cable service tells me I am required to pay them a set amount of money each month for service. It says nothing about me being required to watch certain segments that they choose to show which I am not interested in, be they ads or TV shows I dislike. As for the actual networks themselves, I’ve never entered into any contract with them, so I’m only bound by standard copyright law, which seems to say nothing about advertising at all. And besides all that, we’re really missing the point here. A television program is a copyrighted work. A commercial is a seperate copyrighted work. Calling the program with commercials a single compilation work is a rather large stretch. The right to use one’s work in a compilation must be explicitly granted, and I highly doubt there are contracts sitting around in some cable company’s office describing every possible permutation of commercials and a given television program

By: Daragh McDowell

Daragh McDowell — Thu, 10 Jul 2003 05:37:11 +0000

Sorry it’s 12:30 and I couldn’t trawl through all the comments so I’m sure someone has already had this brilliant revelation, but wouldn’t rulings against ad-skipping devices, etc. eventually lead us up a garden path where getting out of the chair to take a leak during a commercial break would become a felonious act? Just a thought, if advertisements are so goddamn integral to TV as these media conglomerates are claiming (and I think the BBC could rightfully disagree with that little statement.)

By: ogged

ogged — Thu, 10 Jul 2003 04:25:28 +0000

I don’t, in fact, see a bright line. My original comment was that I could see why skipping, but not fast-forwarding, is infringement. Subsequently, I was just trying to give the most generous reading of the law that I could. I think the distinction you make, jhp, between the program and its display is precisely where the law is weak. I would add to your a-e an f: I record an episode of Buffy and watch it on a small and distorted TV with bad speakers. The way I’m reading the law, making a copy and playing it back in a way that makes the commercials less prominent than they would normally be constitutes infringement. Playing it back on a crappy TV seems to satisfy those criteria and if the law outlaws that, it really is silly. But, my will is weak and I have to say, I don’t agree that fast-forwarding and leaving the room are the same. Let me try it this way: imagine a second viewer in the room with you. When you fast-forward, you change how that viewer sees the program, when you leave the room, you don’t. You are doing something to the program, something different, when you fast-forward. Ok, your dead horse to beat, I’ll be quiet.

By: jhp

jhp — Thu, 10 Jul 2003 03:11:12 +0000

One last point, and I’ll stop harping on the absurdity of the obviously absurd. Ogged writes: “The crucial point seems to be this: fast-forwarding changes the program, it’s not just another way to watch.” Fast-forwarding does not change the program, it merely changes how it is processed for display, and this is the cause of the absurdity. Something that results in no copying has been ticketed as an infringement of copyright, and from that poisoned well flows lots of extremely silly poison. My whole point is that, in fact, fast-forwarding no more creates a derivative work than leaving the room or simply turning off a show you don’t like. It is not (in my view at least) a logically or factually defensible position; if it is legally defensible, then the law is wrong.

By: jam

jam — Thu, 10 Jul 2003 02:46:39 +0000

What Posner’s dictum and this discussion show is the whole notion of derivative work needs work. Ogged may see a bright line; I don’t and neither does jhp.

By: ogged

ogged — Thu, 10 Jul 2003 01:05:10 +0000

jhp, Lawyers and judges get paid big bucks to make up stuff like the stuff I’m about to make up. Your last point first. Fast-forwarding presumes that a copy has already been made. Your “a” through “c” seem to me to be infringing based on the ruling. a) The fact that we’re considering the commercials at the end is a red herring. This is no different from skipping or fast-forwarding. You’ve created a commercial-lite copy: is paying $2 for something that costs $2.50 stealing? b) Intent (“timer is set wrong”) is another red herring. You’ve still created a commercial-lite copy. b’) Same as “b,” but the judge shows you no mercy. c) This one we’ve been over. Your “d” and “e” are not infringing because nothing you do in viewing the program can be infringing, only what you do to the copy can be. The crucial point seems to be this: fast-forwarding changes the program, it’s not just another way to watch. If you let the copy run and don’t fast-forward, you’re not doing anything to the program.

By: jhp

jhp — Wed, 09 Jul 2003 23:48:38 +0000

ogged, Here’s a thought experiment. Tell me, what is the heuristic by which I can determine which of these cases of not watching the commercials is legal, and which is copyright infringement: a) I record an episode of Buffy. I watch the tape, and press the stop button after the end of the program content, but before the final credits and the final batch of commercials. b) I record an episode of Buffy, but my timer is set wrong, and fails to record the final batch of commercials, so I can’t watch them. b’) I set the timer wrong on purpose. c) I record an episode of Buffy, and watch it, but fast-forward through all of the commercials. d) I record an episode of Buffy, and watch it, but close my eyes tightly, stick my fingers in my ears, and scream ‘LALALA! I CAN’T HEAR YOU!’ during all of the commercials. e) I record an episode of Buffy, and watch it, but leave the room during all of the commercials. Seriously—I don’t see how, under the precedent Posner cites, any of one of those activities is any less infringing than any other. If fast-forwarding—which does not make a copy of anything—creates a derivative work, why doesn’t failing to record the entire program? Or talking while it’s playing?

By: ogged

ogged — Wed, 09 Jul 2003 23:21:44 +0000

pathos, We’re conflating the “right” to fast-forward with the “right” to sell fast-forwarding equipment because they are, in fact, conflated. In the Sony case, the legality of that which is sold depends on the legality of the use to which it may be put. If you read Posner’s recounting of the Sony decision, it’s quite clear that fast-forwarding is not protected fair use. The ruling held that VCRs are nonetheless legal because they do have at least one use which is “fair,” (time-shifting) not that they don’t have any uses which aren’t. dave, If you’ve already paid for what you’re watching (as with your DVDs or ad-free cable programming), you can watch it in any way you choose. Similarly, if you’ve recorded something, you can watch the program itself in any way you choose. But if there are advertisements in the recorded program, you must watch them. Otherwise, you are failing to “pay” for it, which you do by watching ads. jhp, john b and michelle, If you don’t watch, you haven’t taken anything and aren’t obligated to pay by watching ads. In addition, if you don’t record anything, but just sit in front of the television as it broadcasts, you haven’t “created an unauthorized derivative work” so you can leave the room or change channels as you wish; the recording is the key. rana, It’s not that the very same commercials that were originally broadcast with the program need to be included, but that a copy of the original work must be paid for in some way; if you tape it, you have to watch the ads, if it’s been syndicated, the syndicating network pays for the show (and tries to recoup it’s costs by selling time to advertisers again), etc. To your second point, advertising can pay for part of the programming, such that you pay a fee and watch ads.

By: Matt Weiner

Matt Weiner — Wed, 09 Jul 2003 22:52:53 +0000

OK, I think I may have been misreading your analogy. Still, it seems as though Posner is claiming that fast-forwarding through commercials is an infringement of copyright by the creation of an unauthorized derivative work. If it were not, then there would be nothing objectionable about selling a machine to help me do it. On the other hand, I am not a lawyer. (Still—surely you mean the first amendment rather than the second? Many folks in the blogosphere are big second amendment fans, I know, but this is probably the broadest claim I’ve ever seen made for it. :-))