Posner’s Commercial Skipping Dicta

[Updated 5:23, see below] I am developing a more substantive post about what Napster should have said – I don’t think it’s going to say anything too groundbreaking, but I hope that it will summarize some of the key issues and start some interesting discussion.

For now, let’s talk about Posner’s interesting dicta in Madster. On page 6 of the decision, Posner says that time-shifting a TV program for permanent storage (“librarying”) is an infringement and so is commercial skipping, which “amounted to creating an unauthorized derivative work” that would reduce the copyright’s holders ability to make money (thus not qualifying for fair use, presumably).

The first fallacy: Posner attributes this to the Sony opinion with zero justification.  Nowhere in the Sony opinion does the Court say anything of this kind.  It only addresses two fair uses: unauthorized and authorized time-shifting, defined as the recording, playing back, and erasing of a program.  It mentions in several footnotes the District Court’s analysis, but its ruling was inconclusive on librarying and skipping commercials. The District Court noted that very few people were librarying and omitting commercials and that it was unclear what impact this would have on the copyright owners.

There is, in fact, reason to believe that Sony specifically rejects the notion that commercial skipping creates a derivative work.  The Court of Appeals asserted, in finding that time-shifting was not fair use, that uses of the Betamax were not “productive” and thus, as far as I can discern, not transformative [clarified 5:23 to make productive/transformative distinction].  By definition, if a work is not transformative, it cannot be a derivative – it is a mere copy.  The Supreme Court did not explicitly disagree that the uses were not productive or transformative, stating only that this was not the sole factor in the fair use analysis.

Now, I could go into librarying and why that should be regarded as a fair use, but I won’t for now because a) I think it actually is a tougher case, and b) I want to stick with the commercial skipping, which seems way more clear cut to me.

Posner cites three cases to support his argument about commercial skipping.  Here they are, with my short descriptions:

WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 625 (7th Cir. 1982)
 This case has to do with retransmission of a broadcast signal and mentions that you have to retransmit with commercials intact. It has nothing to do with private, non-commercial use. But, it emphasizes that a TV transmission is a public performance
Gilliam v. American Broadcasting Cos., 538 F.2d 14, 17-19, 23 (2d Cir. 1976);
 ABC distributed edited versions of Monty Python episodes.  This has nothing to do with private, non-commercial use.

Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1173 (7th Cir. 1997)
 This case involves a knock-off Beanie Baby manufacturer. The only connection is that it harmed Ty’s market.

As applied to private uses, which are not implicated in these cases, calling commercial skipping the creation of a derivative work is at best completely strained.  The work is not fixed in a tangible medium; it is simply part of the performance of the non-transformed existing copy.  WGN’s statement about public performance would matter if playing a recorded show and skipping commercials were a public performance. But it’s not.

And that’s the point.  Commercial skipping isn’t a fair use – it’s a private performance. For an eloquent description of and argument about private performance, see the EFF’s amicus in Huntsman v. Soderburgh. (Sidenote: this is part of what Professor Lessig is getting at when he talks about getting people away from protecting fair use as the only rallying cry.  We have to focus more on protecting unregulated uses.  Private performance is (used to be?) one of them. This is also a point that John Mitchell stresses.)

The copying of the show and the commercial skipping are really two separate actions.  The copying is fair use as time shifting.  Once you have that copy, the commercial skipping is part of private performance and does not implicate any of the copyright holder’s exclusive rights.

The only way to get around this is through some loose logic: Time shifting doesn’t mean copying for private, non-commercial use is fair use. It means that copying to watch only once and then erasing is fair use. So there are conditions on how you can use that copying, assuming that librarying is not a fair use. So commercial skipping could be one of those conditions, too.

But that logic would go too far if applied to commercial skipping.  Not allowing librarying would, in my mind, have more to do with preserving the public performance right.  You’re allowed to make that copy to watch the authorized performance, and only once because it was transmitted to you only once. Once on your TV set, however, there’s a private element to that performance. You don’t have a right to retransmit or (for the sake of argument) to library because that would rub up against how the program was only transmitted once.

If commercial skipping is part of a private performance, the effect on the copyright holder’s market (which Posner cites as reason to bar commercial skipping) is also completely irrelevant.  It has to be some sort of derivative for that to matter. (For clarification and counterarguments to my assumptions about derivative works, check out this debate on the Clearplay cases, which discusses some muddled lower court doctrine regarding whether fixing in a tangible medium is important. The two cases they discuss are Microstar v. Formgem and Nintendo v. Galoob. The former involves the creation of Duke Nukem custom levels; the latter involves a Game Genie altering Nintendo games and whether that constitutes a derivative work.  The cases cut both ways for the Cleaplay cases.  Check out the Clearplay casedocs for more on these cases.)

Of course, we shouldn’t be surprised that Posner put this dicta in there without reasonable justification. That’s what half the Madster opinion is – totally unrelated info, with very little supporting material, just to try to embed Posner’s views into other aspects of copyright law.  And, if we’re unlucky, that could come back to bite us.