barry burton

On Copyright and Fair Use

(Particularly as Related to Broadcast Television)

Origins of Copyright

The body of our current copyright legislation is formed by the Copyright Act of 1976. As is the case for copyright in general, this law primarily establishes the exclusive rights of authors of creative works over the reproduction of their works^{7, pg. 4}. The Copyright Act of 1976 differed from previous copyright law in its explicit differentiation between copyright ownership and chattel ownership^{7, pg. 9}. Another key difference was the enumeration of fair use rights; while courts had used the concept of fair use in decisions throughout the twenty-first century, fair use had never been specifically categorized in law^{7, pg. 141}. The Copyright Act itself is clear that the lawmakers intended only for the law to embody the litmus tests already established by the courts, and as such courts would still need to make fair use decisions on a case by case basis^{7, pg. 141}.

Origins of Fair Use

In general, the principle of fair use is defined as limits on the exclusive rights of copyright holders where strict interpretation of their exclusive rights would hurt public welfare in the areas of knowledge and culture^{7, pg. 140}. The constitution states that “The Congress shall have power [ … ] To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”, and it is this phrasing that both grants Congress power to enact copyright law and compelled courts to institute the concept of fair use^{7, pg. 1}. Clearly, if the intent of copyright law is to promote progress in science and arts, then blindly applying the same law in such a way as to limit progress is wrongheaded.

With the origins of fair use in mind, it is now easy to see why most of the listed cases of fair use in the Copyright Act of 1976 concern educational uses that are plainly linked to progress. In the 1984 ruling on the Sony Corp. of America v. Universal City Studios, Inc. case, the divided Supreme Court broadened the precedent of fair use rights to include the right of public accessibility to art and the culture that accompanies this. In reading through summaries of this case and the many other fair use cases of the 1980s and 1990s, the economic impact of particular fair use rights emerges as the common thread in the justification of what constitutes fair use. The judgments are of course always multifaceted, but the courts were almost always very concerned with the monetary impact on the copyright holder whose rights are being limited by the supposed fair use. The specific instance of the Sony case involved recording broadcast television programming for viewing at a more convenient time. The court determined that time-shifting, as it has become known, did not cause any material economic harm to befall the copyright owners^{7, pg. 143}, and as a result was a legitimate and worthwhile fair use right.

Fair Use Today

It is important to note that the Sony case was directed at an electronics corporation which was posed to profit economically from the sale of a device which would enable this new use of television content. The court case only obliquely confirms that consumers are within the realm of legality when time-shifting broadcast television. From the point of view of the content owning corporation, it is easy to understand Universal being upset by another company profiting from what is essentially an innovative, time delayed distribution method for their content—-they would like to receive any profit that may be generated by any of the content they own. However, it is not the case that all secondary profits belong to the content owner, as the new profits may be the result of value added by other parties. Extending this line of reasoning, many people have voiced opinions that the MGM Studios, Inc. v. Grokster, Ltd. case of 2005 represented the same central contention as the Sony case. Both cases do involve third parties profiting from novel delivery methods of copyrighted content, but the similarity ends there. The music files, which were the content primarily available via the Grokster service, were otherwise only available to consumers who purchased them. The Grokster service enabled the consumer to receive all of benefits of owning the content without paying for it, as they could listen to the music any time they desired, though never actually buying the music. The Sony video recorder only allowed the consumer to view the same television programming that they already had access to, but at a different time. The insistence that the Grokster decision in some way represents a narrowing of the interpretations of fair use is preposterous. Gaining access to content which previously had to be purchased in order to be accessed, or stealing, is quite obviously never a fair use.

Fair Use of Broadcast Television

Another interesting aspect of the Sony case is its involvement with broadcast television. Throughout the second half of the twenty-first century, the United States government has held various policies which in sum respect access to broadcast television as very close to a right. Technology advances such as cable and digital television have been slowed until these advances could accommodate continued or better access to broadcast television for all. In last decade the FCC has several times proposed deadlines for ending the transmission of analog television signals, and then as deadlines approached, wavered and changed the date to a further distant future date. For reasons beyond the scope of this discussion, ending analog television transmission enables the operation of a great number of much better communications methods for television, phone, and computer networking, and as such represents a very beneficial transition for the public. The recent Deficit Reduction Act of 2005 finally puts an analog cut off date (February 17, 2009) into law, but only does so along with a massive ($1.5 billion) expenditure earmarked to subsidize converter boxes so as to maintain easy access to broadcast television for those unable to afford new televisions. In addition, the United States copyright code now contains provisions mandating that cable television operators carry broadcast television channels so as to provide access to those who do not receive over the air signals^{7, pg.161}.

For better or worse, television is one of the best loved forms of art in the United States. Popular art has a way of forming and molding culture around it, so a lack of access to broadcast television forms a very real barrier to participation in the culture of the United States. I think this was one of the many contributing influences in the Supreme Courts decision in the Sony case.

Restricting Fair Use with DRM

For the purposes of electronic distribution of primarily entertainment oriented copyrighted materials, the major legislative addition to the initial Copyright Act is the Digital Millennium Copyright Act of 1998 (DMCA). This law contains provisions that force internet service providers to cooperate in combatting copyright infringement, but the primary implication for consumers is the requirement concerning digital rights management, or DRM. DRM is defined as technological measures that attempt to control access to copyrighted materials. Often DRM manifests itself as copy prevent measures that disable the ability to copy copyrighted content, even if the copying may fall under a fair use area. From a computational perspective, unbreakable DRM is an impossibility. So while breaking the DRM may be possible and the purpose may be a fair use, the act of breaking the DRM is made illegal by the DMCA. Thus while it is legal to make a back up copy of a CD, which has no DRM, it is illegal to make a back up copy of a DVD, because it is protected by DRM (albeit technically easily circumvented DRM).

With regards to DRM and television, the FCC proposed regulation 47 CFR 73.9002(b), commonly known as the broadcast flag. This regulation would force manufacturers to ensure that all new television receivers honor a “broadcast flag”, which is simply a DRM component that would be added to television broadcasts. This DRM component would allow content owners to specify that particular content not be allowed to be recorded. Since the DMCA was already in place, this would mean that any device which ignored the broadcast flag request would be illegal, and thus time-shifting television could be illegal, should the content owner decide to make it so. The United States Court of Appeals for the D.C. Circuit struck down this regulation, stipulating that issues of content were not within the purview of the FCC, as its mandate was only regulating the transmission medium. Thus, for the time being, there is no broadcast flag and broadcast television content remains unaffected by the DMCA.

Time-shifting via Digital Redistribution

Clearly then, time-shifting of broadcast television is still legal. The act of digitizing the video and storing on a computer is still legal. The act of watching the content later is still legal. The question remains, what about distribution over the Internet? The Bit Torrent protocol is frequently used to share many types of files. The important thing to understand about Bit Torrent is that it is merely a protocol, not a service, it only provides a common method of communication that several computers can use to share a single file. Thus, it only makes sense to talk about Bit Torrent distribution of a single file. As a protocol it is not an entity that can be held responsible for all files transmitted. As such, discussions of liability must focus on users who may only be sharing a single file.

To continue this discussion of distribution, it is important to remember the idea of “significant non-infringing uses” which was established by the Supreme Court in the Sony case¹⁰. The court ruled in Sony’s favor because its video recorder was capable of significant non-infringing uses, namely the fair use capability of time-shifting. The Ninth Court mistakenly ruled in favor of Grokster because it misinterpreted the Sony ruling to mean that if a product was theoretically capable of significant non-infringing uses then it should not be held liable¹⁰. The Supreme Court’s ruling that the significant non-infringing uses need be actual is not a blow to the doctrine but rather a grounding of it. Laws are made for reality, not theoretical possibilities, and in the Sony case the product was actually mostly used for its non-infringing capabilities.

Returning now to distribution via Bit Torrent, if the file contains a recently aired broadcast television show, then each user is only facilitating other users to obtain this recently aired broadcast television show. Given typical television show watching habits and normal computer storage space, the other users are most likely to watch the show once and then delete the file. All of the uses would then fall under time-shifting fair uses, so the distribution of the of the one file by a single user would be characterized by having significant actual non-infringing uses (and few, if any, infringing uses). This also means that the distribution would not have any appreciable negative economic impact on the content owners. Nor would the users be gaining access to something they would have otherwise had to pay for. Thus in this particular case, the use of this distribution falls very close to that of the Sony device, and very far from that of the Grokster service.

In reading about the many legislative and judicial decisions which surround the concept of fair use, both Congress and the courts have always clearly maintained that above all else, fair use was a very subjective judgement that could only really be decided on a case by case basis. Barring a Supreme Court ruling on a specific matter, the best course of action would seem to be to try to evaluate the situation as the court would. This ultimately means following the spirit of the original mandate in the constitution, which is to say that the producers of creative content should be rewarded economically for their creations, but only in such a way as leads to the enrichment of society.

In absence of a court ruling, another important guide to the fair use of content is the wishes of the content owners themselves. This is not elucidated by law, but in following following the spirit of constitution, I think it is intuitive to respect the entity that actually created the content. Of course, this is not to say that a content owner should be obligated to enumerate all possible uses they consider to be violations of copyright. It merely means that if there is a use which could easily seem to be fair, but that the copyright owner did not wish consumers to use, then the content owner should vocalize their desire. In this specific case, lengthy searches of the Internet only uncovered a few people who claimed to have received copyright violation notices from third parties who claim to represent broadcasters. There has been no indication by broadcasters that these third parties are indeed working for them, and no broadcaster has issued any statement that they do not consider time-shifting via internet distribution to be a valid fair use.