Commercial free TV

by Henry on July 9, 2003

“Ed Felten”:http://www.freedom-to-tinker.com/archives/000414.html points to an interesting aside in a recent Richard Posner “opinion”:http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=02-4125.PDF on a lower court injunction against Aimster. The interesting nugget is mostly irrelevant to the case at hand: Posner argues that if someone videotapes a TV show and fast-forwards through the commercials, they’re breaking the law.

bq. commercial-skipping, [amounts] to creating an unauthorized derivative work …, 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 commercials by advertisers.

This may seem like so much legal pie-in-the-sky. Even if Posner’s opinion were to become the accepted interpretation of the law, nobody expects the copyright-police to come knocking on the door asking about your video-watching habits. But it actually touches on some important issues for owners of digital video recorders (such as TiVo).

As happy TiVo owners testify, one of the joys of the machine is that it allows you to speed through obnoxious ads with alacrity. TiVo owners (myself included) wax evangelical on the subject. There’s even an “undocumented hack”:http://www.bigmarv.net/how/tivo30secondskip.html that allows you to skip through the ads 30 seconds at a time. But ad-skipping threatens to eat TV networks’ revenues. One of TiVo’s competitors was sued by various networks for including a more advanced ad-skip option on its boxes; the case was never decided, because the company went bankrupt. The new manufacturer has “dropped the feature”:http://www.adage.com/news.cms?newsId=38045, most likely in order to cosy up to the content providers. TiVo itself isn’t being sued – but it’s also keeping rather quiet about some of the more advanced features of its product. If a Posnerian view of the law prevails in future cases, it’s fair to expect nifty ad-skip features and their like to be declared illegal, unless they have substantial non-infringing uses.

Larry Lessig “talks up a storm”:https://www.crookedtimber.org/archives/000074.html about how copyright law and restrictive content management systems hobble artistic creativity. And he’s doing a good job of it. But the war is as much about consumption as production. Important set-battles are being fought over our TV remote controls, digital video recorders, and DVD players (those bloody “unskippable commercials”:http://www.washingtonpost.com/wp-dyn/articles/A17791-2003Jun20.html?nav=hptoc_tn on new DVDs). I suspect that more and more people will get upset about this, as these technologies spread, and as content providers become ever greedier. Couch potatoes of the world unite. You have nothing to lose but your chains.

Update: “Larry Solum”:http://lsolum.blogspot.com/2003_07_01_lsolum_archive.html#105784887890316026 has a good take on the technical misunderstandings behind Posner’s aside – it hinges on the difference between a performance and an unauthorized derivative work. Convinced me in any event. But does Posner’s interpretation apply to digital video recorders? I invite TiVo owning IP lawyers and former IP lawyers (yes Michelle, that means you) to comment.

Update 2: “Derek Slater”:http://blogs.law.harvard.edu/cmusings/2003/07/10#a258 has a good critique of Posner’s argument.

{ 25 comments }

1

Rana 07.09.03 at 6:42 pm

I’m having trouble understanding that lawyer’s reasoning. If the commercials are somehow “integral” to the packaged product, why are they not included every time that episode is re-run or placed on a DVD for sale or aired on a different station?

I am also mystified by the logic of media providers who insist that advertisements are the necessary cost of providing their products. If this is the case, shouldn’t cable and DVDs and videos be _free_?

2

Michelle 07.09.03 at 6:57 pm

haven’t read the posner opinion but it strikes me that his statement is incompatible with a previous ruling regarding vcrs and time-shifting (i.e. that it’s okay), an argument that was ultimately successful in the tv area, though not so much in other fields (i believe they tried to use a similar argument for napster, and we all know how that went). posner’s analysis seems to indicate that time-shifters of television programs aren’t skipping commercials, when clearly that was at least part of the point of recording them in the first place. not to mention that there are plenty of other ways to avoid commercials besides forwarding them–the fact that they’re placed in between segments of a television program doesn’t stop us from taking a bathroom break while they’re on, right?

3

Balasubramania's Mania 07.09.03 at 6:58 pm

A similar issue comes up in the clean flicks case as well. And maybe some in the Gator lawsuits. (Both slightly different contexts though.) Interesting.

4

ogged 07.09.03 at 7:12 pm

There’s a distinction Posner seems to be fudging: “skipping” in the sense of the 30-second advance that effectively “removes” an ad (let’s call it “skipping total”) and “skipping” in the sense of fast-forwarding, which retains the ad, but plays it faster and without audio (let’s call that “skipping fast”). Perhaps one could make a case that skipping-total is infringing in the way Posner asserts, but skipping-fast, which is what he in fact discusses, is much thornier. The ad is still viewed, after all, so the courts would have to decide whether ads are sufficiently less effective when viewed quickly than at normal speed to justify making fast-forwarding illegal. (Don’t you suspect, as a TiVo user, that ads are now being made with fast-forwarding in mind? And, if they are, that seems to argue for the legality of fast-forwarding.)

In any event, someone has to pay for programs. The only way to get rid of commercials is to charge for programming, as HBO does. Since the networks don’t want to charge, commercial messages will move from interspersed segments into the program itself: product placement. We may be accustomed to seeing cans of Coke in a show, but wait until State Farm Insurance is written into a plot line; I think we’ll all be nostalgic for the good old days of 30 second ads.

5

Dave Adams 07.09.03 at 7:28 pm

I don’t think there’s any distinction to be seen, and Posner’s opinion strikes me as a big legal stretch to accommodate advertisers’ desires. As the consumer of a copyrighted work, surely I have the right to partake of it in any manner I choose. Posner’s logic would forbid me from jumping to specific chapters on a DVD (to watch only the fight scenes from Crouching Tiger, for example), or from skipping the non-narrative chapters when reading The Grapes of Wrath. Should DVDs that recognize chapter stops or books that allow random access be made illegal? That’s the same question as “should ad skipping tech be made illegal”, in my opinion.

6

Matt Weiner 07.09.03 at 7:54 pm

I think Posner is perfectly right but doesn’t take his reasoning far enough. Not only are “’free’ television programs are financed by the purchase of commercials by advertisers,” but the purchase of those commercials are financed by the purchase of the advertisers’ products by consumers. So if I watch the commercials but ignore them, I’m breaking the social contract if not engaging in outright theft. I have a moral obligation to buy the products that are making my “free” TV possible.

Mind you, after I buy the products, I’d better wind up with a girl who looks like the ones in the ads. A social contract goes both ways.

7

pathos 07.09.03 at 8:24 pm

Posters are conflating the right to fast forward through television shows (clearly documented in the penumbras of consitutional amendments 2, 4, and 5) with the right to commercially profit from selling me that ability.

I have every right to skip commercials. If I turn around and sell the commercial-free version for $19.95 a pop (“Every golf game ever played! Total playing time 2.4 minutes.”) I have not exercised my right to skip commercials, but my right to profit from doing so. It is that right that Posner is questioning.

8

John Bogart 07.09.03 at 8:59 pm

The argument advanced by Posner, as stated, fails for a number of reasons pointed out by others (e.g., not a violation to leave the room during a commercial or to read a book out of order). The technology peritting channel switching also permits avoiding commercials, so that line fails too. An additional point is that the program providers rarely own the copyright to the commercial, and skipping would in fact appear more compatible with respecting the advert copyright than violating it (as one would then not be an unauthorized viewer). I have to admit however that I have not read any of the cases cited by Judge Posner.

9

jhp 07.09.03 at 10:19 pm

My impression from reading the decision was that the opinion wasn’t Posner’s, but was implied by the Sony case itself and the cases he cites, ‘WGN Continental Broadcasting Co. v. United Video, Inc.’, ‘Gilliam v. American Broadcasting Cos.’, and ‘Ty, Inc. v. GMA Accessories, Inc.’, but not being a lawyer, I may be misreading.

In any case, whoever is responsible, I have to wonder about their understanding of what they’ve written. There are a whole lot of normal behaviors that are not functionally distinguishable from fast-forwarding which I can’t believe that any rational person would want to say are illegal; for example, you can also skip commercials by just not watching the whole program — so is channel surfing copyright infringement?

10

Matt Weiner 07.09.03 at 10:49 pm

Pathos–not so. Posner is specifically referring to the use of VCRs, the old Betamax type, to tape a program and fast-forward through it. See p. 6 of the pdf opinion. And, as jhp points out, this seems to be a citation of precedent rather than new law.

Liked the joke about the golf games, though.

11

Matt Weiner 07.09.03 at 10:52 pm

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. :-))

12

ogged 07.09.03 at 11:21 pm

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.

13

jhp 07.09.03 at 11:48 pm

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?

14

ogged 07.10.03 at 1:05 am

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.

15

jam 07.10.03 at 2:46 am

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.

16

jhp 07.10.03 at 3:11 am

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.

17

ogged 07.10.03 at 4:25 am

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.

18

Daragh McDowell 07.10.03 at 5:37 am

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.)

19

aelph 07.10.03 at 5:47 am

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

20

kog 07.10.03 at 5:57 am

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.

21

Matt Weiner 07.10.03 at 2:29 pm

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.

22

ogged 07.10.03 at 4:21 pm

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.”

23

jhp 07.10.03 at 7:33 pm

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.

24

Matt Weiner 07.10.03 at 7:40 pm

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

25

JRoth 07.10.03 at 8:49 pm

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.

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