Is skipping commercials “stealing“? ReplayTV lawsuit against Hollywood:
- A federal court today [October 15, 2002] affirmed the right of the Electronic Frontier Foundation (EFF) to represent ReplayTV owners in their lawsuit against 28 motion picture and television industry companies.
Craig Newmark of craigslist.org and four other ReplayTV customers are suing the entertainment companies to clarify their rights to record television programs and to skip commercials using digital video recorders (DVRs). Hollywood representatives have publicly stated that skipping commercials is “stealing.”
The ReplayTV customers are represented by EFF attorneys and Ira Rothken of the Rothken Law Firm.
The entertainment companies tried to prevent EFF attorneys from accessing the vast majority of documents that the court ordered the companies to produce as part of the legal discovery process. EFF attorneys sought access because they believe these documents are critical to preparing the ReplayTV owners’ case. The entertainment companies claimed that EFF is a “competitor” with Hollywood because of its public statements about copyright law policy and advocacy to Congress on pending and current technology legislation, including the proposed Consumer Broadband Digital Television Promotion Act (CBDTPA). The ruling sought by the entertainment companies would have effectively disqualified EFF attorneys as legal counsel for the ReplayTV owners in this case.
After hearing argument from both EFF and the entertainment companies’ attorneys this morning, Magistrate Judge Eick of the U.S. District Court, Central District of California, this afternoon ruled that EFF has the right to access the documents in question. Magistrate Judge Eick ruled that the restriction sought “would impair significantly the prosecution of the Newmark Plaintiffs’ claims by effectively preventing attorneys from the Electronic Frontier Foundation from serving as litigation counsel for the Newmark Plaintiffs” and found that the entertainment companies “have failed to demonstrate a sufficiently significant disclosure-related risk or danger” from disclosure of their confidential information by EFF attorneys to justify complete denial of access. The companies have not yet indicated if they intend to appeal the ruling.
“The entertainment companies’ motion was an extraordinary effort to prevent EFF attorneys from representing our clients,” stated EFF Legal Director Cindy Cohn. “We are pleased that the court upheld EFF’s right to both represent our clients in litigation and to engage in public advocacy before Congress and in public arenas.”
“The restriction sought by the entertainment companies would have set a very disturbing precedent for the many organizations, like EFF, which engage in both public interest litigation and public advocacy,” noted EFF Staff Attorney Gwen Hinze.
More on the case here.
The EFF’s stance on Fair Use here:
- 1. What is Fair Use?
In essence, fair use is a limitation on the exclusive rights of copyright holders. The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. A use which is considered “fair” does not infringe copyright, even if it involves one of the exclusive rights of copyright holders. Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work.
2. How does Fair Use fit with Copyright Law?
Copyright law embodies a bargain: Congress gave copyright holders a set of six exclusive rights for a limited time period, and gave to the public all remaining rights in creative works. The goals of the bargain are to give copyright holders an economic incentive to create works that ultimately benefit society as a whole, and by doing so, to promote the progress of science and learning in society. Congress never intended Copyright law to give copyright holders complete control of their works. The bargain also ensures that created works move into “the public domain” and are available for unlimited use by the public when the time period finishes. In addition, as part of the public’s side of this bargain, U.S. Copyright law recognizes the doctrine of “fair use” as a limitation on copyright holders’ exclusive right of reproduction of their works during the initial protected time period.
The public’s right to make fair use of copyrighted works is a long-established and integral part of US copyright law. Courts have used fair use as the means of balancing the competing principles underlying copyright law since 1841. Fair use also reconciles a tension that would otherwise exist between copyright law and the First Amendment’s guarantee of freedom of expression. The Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law”.
3. How Do You Know If It’s Fair Use?
There are no clear-cut rules for deciding what’s fair use and there are no “automatic” classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes — Courts are more likely to find fair use where the use is for noncommercial purposes.
The nature of the copyrighted work — A particular use is more likely to be fair where the copied work is factual rather than creative.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole — A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.
The effect of the use upon the potential market for or value of the copyrighted work — If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.
4. What’s been recognized as fair use?
Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.
In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)
Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:
Space-shifting or format-shifting – that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, “ripping” an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)
Making a personal back-up copy of content you own – for instance, burning a copy of an audio CD you own.
5. Is Fair Use a Right or Merely a Defense?
Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.
6. For More Information
Stanford University’s Fair Use Resources Page: