The Motion Picture Association has never acquiesced in the view that home videocopying is a fair use. An argument to the contrary in one of the amicus briefs is mistaken.

The home videocopyist makes no independent or creative effort; he contributes nothing to advance science or culture. He merely chisels -- by making a copy for nothing. That is not fair use.

What is fair use? Fair use is not a law. There's nothing in law.

No matter how socially beneficial Google's search engine may be in general, the activity at issue in this case -- making unauthorized copies solely to direct users to other unauthorized copies -- hardly deserves the label "transformative."

Copying a copyrighted program or film with a digital video recorder is a violation of the exclusive rights of the copyright owner under Section 106 of the Copyright Act. Such copying is entirely distinguishable from the type of copying which, in narrow and different circumstances, might be defended as a fair use.

Real cannot rely on the alleged "fair use" defense that consumers can make copies of DVDs to avoid liability for trafficking in a circumvention product.... As the Second Circuit held, the plain language of the "DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.".... the "DMCA does not have a 'fair use' exception."

The district court’s very brief discussion of the third factor simply observes that because the defendant’s purpose was making and distributing copies of whole works, copying of entire works was necessary. Defendants who copy whole works will almost always be able to argue that doing so was necessary to their purpose. Surely in a case involving the most massive, systematic copying of copyrighted works in history, the district court should have addressed whether the amount and substantiality of the copying was really justified.

In evaluating the fair-use defense, the Court should reject attempts to overly expand, or give disproportionate weight to, the fair-use factor one concept of “transformative” use. Contrary to the assertions of defendants and their amici, a defendant does not meet his burden to show that an unauthorized sequel is a fair use merely by showing that it has crossed a threshold of “‘add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message,’”

The compatibility of the fair use doctrine with the three-step test has recently been the subject of a good deal of scholarly commentary and controversy; but no definitive determination on that subject has ever been made. At the time the U.S. first became subject to the three-step test, when it adhered to the Berne Convention in 1989, there seemed to be no serious consideration of whether Section 107 was incompatible with Article 9 (2) of Berne. Since the mid-1990s, the WTO dispute settlement process has provided a potential forum for claims that fair use is to broad or too ill-defined an exception to satisfy the three-step test. But no such claims have ever been brought, even though there are doubtless a number of WTO members whose nationals could claim to have been injured through fair use decisions by U.S. courts that unauthorized uses of their works were “fair” and therefore sheltered by Section 107. It is worth noting that the one provision of U.S. copyright law that has been found to exceed the bounds of the three-step test, by decision of a WTO dispute settlement panel, is not Section 107, but rather Section 110 (5), a specific exception involving the public performance of music in bars and restaurants.

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.

Users of the Hopper's PrimeTime AnyTime feature who record Plaintiff's prime-time shows and use the Hopper's Auto Hop feature to automatically skip commercials otherwise contained in those recordings infringe Plaintiffs' exclusive reproduction rights under section 106 of the Copyright Act,

Auto Hop is a more efficient way of achieving what consumers already do with standard DVRs. A 30-second skip feature is already standard on many DVR remote controls. It permits viewers to automatically skip ahead in a recording, at the touch of a button, completely bypassing a typical 30-second television commercial. The remote controls that come with DVRs supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip feature. DISH has provided a 30-second skip feature for years. By pressing the 30-second skip button multiple times, a viewer can elect to bypass the full complement of commercials between show segments. Now, DISH allows the customer to opt to use an Auto Hop feature that is just an extension of this 30-second skip function. It avoids the common frustration that occurs when viewers, using the 30-second skip or plain fast-forwarding, overshoot the commercials and fastforward into the television programming content that they really want to watch.

DISH's Auto Hop feature promotes consumer autonomy. Viewers have skipped commercials for decades. Viewers commonly use the commercial break as a time to get up and momentarily leave the room. Ever since the advent of the remote control, viewers have changed channels or muted the sound during commercial breaks. And, since the advent of the VCR and DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted choice to skip a commercial.

After a decade of fruitless lawsuits and on the heels of another legal victory, this time against file sharing service Limewire, content owners are gearing up for yet another round of lawsuits this week.  The problem with this bellicose response to file sharing is that Justice Stevens' open internet is increasingly caught in the crossfire.

This response to file sharing has taken a significant toll on the efficiency of the legal system and has bent the law badly out of shape.  As Eric Goldman's blog, cited above, notes, "there is 'normal' copyright law and then 'P2P file sharing' copyright law, and it's a mistake to think those two legal doctrines are closely related."  Content owners have repeatedly pushed for extreme, or simply non-legal, readings of copyright and fair use, most famously in the Lenz case dealing with bogus takedown notices (and a dancing baby) and the recent Jammie Thomas case dealing with excessive statutory damages.  They are also attempting to rewrite the already draconian DMCA, an irony matched only by the sublime absurdity of content owners suing one another over pirated anti-piracy technology.

More troubling, these lawsuits have also begun to target not only users but service providers.  Content owners have been overburdening ISP's with automated discovery requests for years and have recently begun to attack ISP's directly.  They have also sought an injunction against the bandwidth provider for file sharing service The Pirate Bay, essentially arguing for fourth party liability.

This erosion in Justice Steven's principle of an open internet reached a new low with a California court's recent injunction against BitTorrent search engine IsoHunt requiring it to remove all links pointing to infringing files. This, of course flies in the face of Stevens' principle about non-infringing uses and requires IsoHunt to have the same infeasible knowledge and control over users as was struck down in Reno.   If the Pirate Bay case is the equivalent of suing AT&T for an obscene caller's ramblings then this case is akin to requiring that Sprint disconnect anyone whose phone might be used for unlawful acts even before those acts have been identified as unlawful.  It cannot be done and the only alternative is to shutter the technology completely or simply bend over backward to accommodate any and all measures litigious content owners may seek to employ.

Patry mentions an aspect of the case that I hadn't realized before: MCA/Universal, the lead plaintiff, wasn't just worried that the VCR owners would tape shows rather than watching re-runs. It was also planning to release a laser disc technology called Disco Vision. MCA/Universal apparently worried that a successful Betamax VCR would have undercut the market for laser discs. Schein is quoted as saying "I don't think it was accidental that the company that took the lead in fighting the videocassette held all the patents on the videosdisc."

This will sound eerily familiar to anyone familiar with more recent copyright controversies. For more than three decades, Hollywood and the recording industry have consistently tried to use copyright law to stop any technology they didn't control. In 1992, the music industry persuaded Congress to mandate cumbersome DRM for digital audio formats, stunting the development of that technology. In 1998, the music industry unsuccessfully tried to sue the MP3 player out of existence. Also in 1998, at the behest of the copyright lobby Congress enacted the DMCA, which gave content creators unprecedented control over the design of technological devices. Hollywood has used the DMCA to effectively outlaw set-top boxes that act as DVD jukeboxes.

Of course, in every one of these cases, the copyright lobby's arguments have focused on the threat of "piracy." But when they've won, the practical result has been to give content creators the power to control the evolution of media devices. And when Hollywood and the record labels control technological progress, the results aren't pretty.