Posted By: John-Philip Schroeder
Everyone is familiar with advertisements. The ubiquitous presence of products on the screen and page is a daily part of life. However, as advertising becomes more technologically advanced, the ability to avoid such advertisements also grows. The emergence and desirability of DVRs and other such technology raise an important question: are ad-skipping features on a DVR legal? The answer may be more complex than most would first imagine.
One of the first technological means of skipping media advertising came in the wake of the Betamax and the VCR. In 1984 the Supreme Court held that “time-shifting” copyrighted material by recording it on a home devise is legal under the doctrine of fair use, despite the ability to fast-forward through commercials or pause during recording to omit them altogether. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984). This ruling would seem to indicate using a DVR or similar device to skip commercials would be equally acceptable. However, media companies continue to argue peoples’ ability to use time-shifting technology should be limited, particularly when it comes to advertisements. See generally Paramount Pictures Corp. v. Replay TV, 298 F. Supp. 2d 921 (C.D. Cal. 2004), and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005). Media companies argue that ad-skipping “attacks the fundamental economic underpinnings of free television and basic nonbroadcast services and, hence, the means by which plaintiff’s copyrighted works are paid for.” Ethan O. Notkin, Television Remixed: The Controversy over Commercial-Skipping, 16 Fordham Intell. Prop. Media & Ent. L.J. 899, 914 (2006).
While it might be true that the proliferation of ad-skipping technology will undermine traditional advertising, media companies must still pin their arguments on legal theory for support from the courts. Perhaps the most persuasive legal theory for restricting ad-skipping technology lies in the idea that by skipping advertisements, the user creates an altered version of a copyrighted work, and the creation of any such “derivative work” falls into the rights of a copyright holder. See 17 U.S.C.A. § 103. Indeed, in a case involving online music copyright issues, the Seventh Circuit stated that, “commercial-skipping, amount[s] to creating an unauthorized derivative work.” In re Aimster Copyright Litig., 334 F.3d 643, 647 (7th Cir. 2003).
There are two large problems with treating commercial skipping as creating a derivative work. First, the copyright holders of the programs being recorded are almost certainly different from those the advertisement copyright holders. The idea that someone may legally record a copyrighted television program under fair use should not be defeated merely because that same person refuses to record or watch a separately copyrighted advertisement. Second, the right to create derivative works is meant to protect the ability of an original author to retain the benefits of any future outgrowths from his work. See Ethan O. Notkin, Television Remixed: The Controversy over Commercial-Skipping, 16 Fordham Intell. Prop. Media & Ent. L.J. 899, 927 (2006). Even if ad-skipping somehow creates a derivative work, it does not compete with the advertisement copyright holder’s ability to retain the benefits of future outgrowths from the advertisement. After all, any such derivative works are generally intended for only one household, and are not made available to the public.
In the end, it is difficult to conceive of a theory that would allow for traditional recording under fair use, yet prevent people from skipping advertisements. Shows recorded on a DVR are likely to be viewed only by one family, deleted after a short period, and the advertisements contained within might not have even been watched in the first place if it were not for the ability to record the program. While there might be a legal argument for requiring someone to include advertisements in DVR recordings in order to prevent the creation of derivative works, this argument is weak and it seems clear that advertisers are really just looking for a way to make it as inconvenient as possible to avoid advertisements. This type of objective is outside the scope of copyright protection. Just as advertisers cannot force someone to stay in the room, pay attention, or refrain from changing the channel during an advertisement, they should not be allowed to prevent people from fast-forwarding through advertisements or skipping them altogether.