Is It Copyright Infringement To Skip Commercials?

from the please-explain dept

A little over a year ago, we wrote about a lawsuit where a bunch of media companies were suing Flying J, the operator of a number of truck stops. Apparently, Flying J had installed a neat little bit of technology that would recognize when commercials came on TV and replace them with its own ads (which Flying J had sold to advertisers who wanted to target truckers). As we said at the time, it actually makes perfectly good sense to show targeted ads to truck drives, and it wasn’t entirely clear what argument the broadcasters could make. After all, commercial skipping is legal (even if the entertainment industry doesn’t want to believe it). Unfortunately, a judge disagreed and has ruled against Flying J, saying that the act of skipping commercials is copyright infringement. Copyright expert William Patry can’t figure out how that could logically make sense. After all, Flying J had paid for a license to show TV at its establishments. So that’s legal. If it had just been showing TV without the ad insertion technology (called the segOne) then it would have been perfectly legal. You could even take the argument one step further and say that if Flying J employees turned off the TV whenever commercials were on (or, more realistically, changed the channel), it would still be perfectly legal. The only thing that seems to have somehow made this illegal is the introduction of the automated device, which doesn’t even do anything to the broadcasters’ content (which, again, has already been paid for). It’s just blocking third party content, but that third party isn’t a part of the case. So it’s difficult to see how this is copyright infringement at all. Instead, it sounds a lot more like felony interference of a business model masquerading as copyright infringement.

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Companies: flying j, segone

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Comments on “Is It Copyright Infringement To Skip Commercials?”

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Oliver Wendell Jones (profile) says:

Re: Re:

but they can’t replace the national ads that were sold for specific times

That’s where you are wrong. Syndicated TV shows come to the station (over satellite, via digital download or sometimes shipped in on tape) with national advertisements already in place between the show segments. The contract between the syndication and the station allows for overwrites of national advertisements. For reasons unknown to me, this is referred to as “Barter”.

Format sheets that show the commercials within each program list each break as either “Barter”, “Double Barter”, “Local” or a combination thereof (i.e., “Double Barter a,b,c,d + Local e” might have 4 national ads and then 31 seconds of black for a local ad. For the TV station where I work, “Barter” means we let it run as is, “Double Barter” means we can overwrite (and we usually do) and “Local” means it’s going to be dead air if we don’t put something in at those times.

Everyone once in a while when you’re watching TV you’ll see a split second of a commercial and then it flips to a different commercial, that’s a sure sign of a double barter ad being replaced either at the station or by the cable company.

BTR1701 (profile) says:

Re: Re: Re:Syndication

The key phrase in your comment is “The contract between the syndication and the station allows for…”

If the contract allows for it, there’s obviously no infringement since all parties agreed to let it happen. That’s distinctly different from the Flying J case where the truck stops that were replacing commercials had no contractual allowance to do so.

That being said, I agree with the TechDirt author that this can’t logically be a copyright violation. First and foremost, in order to have violated copyright law, you have to have actually *copied* something. Here the device just changes the channel on the TV while the authorized commercials are playing, then changes it back when they are over. No copying involved at all.

And unless the plaintiffs are willing to argue that it’s illegal for the average viewer to channel surf during commercial breaks, then I can’t see how having a machine do it for you would turn an otherwise legal act into an illegal one.

chris (profile) says:

everything is copyright infringement

anything that you enjoy or profit from without paying hollywood is copyright infringement. infringement includes:

humming a tune without paying for licensing
talking during a commercial
going to the bathroom during a commercial
fast forwarding thru a commercial
skipping the ads at the beginning of a dvd
talking during the ads ad the theater
watching a premium channel at a friend’s house
watching a sporting event at a friend’s house
thinking about a song, movie, or tv program
talking about a song, movie, or tv program
thinking about talking about a song, movie, or tv program
talking about thinking about a song, movie, or tv program

it’s very difficult to live without infringing on copyrights. it’s best to just give all your money and posessions to hollywood and pray that they are merciful.

TheDock22 says:

I can see why the judge said it was copyright infringement (for lack of a better term). In the end though, it makes more sense to allow them to target ads rather than sue Flying J for wrong doing. I think if Flying J had offered that commercial space for free, then they would have won their court case. Since they charged for space, Flying J profited off of circumventing ad space that had already been sold.

Still, I can’t see how the cable companies are losing money over this. It’s not like Macy’s will pull their ads because a bunch of truckers won’t see their ad.

sampson b. weatherbee says:

Copyright this, mf!!!!

I fast forward through the commercials on my recorded tv shows on my PVR…should I report myself?

My question is,exactly what copyright are they infringing upon, by bypassing original content with content that actually meets the consumers need.
I mean broadcasters already do this with regular cable to meet a target audience. They broadcast more toy commercials on Saturday morning cartoons, and more tampon ads during soap operas for example
I looked up copyright infringement on the web and found this definition:

Violation of copyright through unauthorized copying or use of a work or other subject matter under copyright.

Not showing the original commercials has nothing to do with copyright.
That judge is clearly a moron.

Barrenwaste (profile) says:

Either way, it doesn’t matter, as the companies/networks do not own the intellectual content in question (commercials).

The commercials are owned by the companies who create them, and I’m fairly certain that Nike is not owned by Fox. Even if it did, once the intellectual property (if commercials can be called intellectual) is bought and paid for it becomes the consumer’s choice on whether they use it or not.

The reason cable networks/cable companies have to play certain commercials at certain times is contractual. They set up a fairly standardized contract where in the network will play commercials at such and such a time for such and such a sum. However, there is nothing they can do to force people to watch these commercials at such and such a time.

I’m not an expert on copywright law, but I cannot see how the truck stop violated any networks rights by refusing to use intellectual property that they made no contract to use and the network doesn’t own.

I can see why the network wouldn’t like the truckstops use of the technology. If the commercials the network contracts to show aren’t seen, then the companies that contract with them will cease to do so, thereby reducing most of the networks potential revenue. However, that is not a violation of any law, simply a changing market.

In the end it seems clear to me that either the judge took a pay off or he got his degrees in law from acme.

Anonymous Coward says:

Easy Redesign Of The Technology

It’s all about the appearance of how it is done.

All Flying J needs to show is that when a commercial comes on they change inputs from the tuner to an AV input where their stuff is stored. Thereby, there is no modifying the signal since they are playing something off another video source.

Justin G says:

By this same logic, it would appear that bars/restaurants that switch to a live DJ during commercials on game day are also liable for copyright infringement. I fail to see how this should be illegal unless the contract with the cable company explicitly forbids this activity.
This also reminds me of the lawsuits brought against DVD players that could be programmed to skip over explicit language and graphic scenes. However, I can’t recall if these claims were based on copyright or not.

ReverendJoe says:

why its copyright infringement

I don’t agree with this, and I’m not privy to any papers or rulings from the case, but I think the judge was able to justify this due to the insanely granular level of control copyright law grants creators in this country.

Presumably, the plaintiffs argument was that the programs are sold as is, commercials and all, as a single copyrighted work. Any modification of that copyrighted work (such as replacing generic commercials that come with the show with targeted ads), under copyright law, constitutes a “derivative work”, based on the original program.

Presumably, the license Flying J signed with the broadcasters does not include the creation of derivative works, and is therefore considered criminal copyright infringement. And, like everything else with copyright, all rights are reserved by default unless explicitly granted (especially if you disregard fair use …. as the moguls, politicians, lawyers, and judges so often do in this country).

It sucks, but in a country where the only thing keeping creators / publishers from suing boy scouts for singing around the campfire is bad publicity, does it really surprise anyone that this ruling would come down this way?

I would say it surprises me that the broadcasters don’t just try to deal for more money out of Flying J, but coming from an industry mindset that has INSISTED on continually turning DOWN the huge profits they could make by re-opening the old Napster and charging 5 bucks a month for it, I’m really NOT surprised.

I always say these people are more interested in CONTROL than MONEY. (But then, I also always figure they are seeking ULTIMATE control so that, once they have it, they can just slowly crank up the economic “heat”, until ALL of us evil little thieving frogs are boiled … )

Anonymous Coward says:

Re: why its copyright infringement

Presumably, the plaintiffs argument was that the programs are sold as is, commercials and all, as a single copyrighted work. Any modification of that copyrighted work (such as replacing generic commercials that come with the show with targeted ads), under copyright law, constitutes a “derivative work”, based on the original program.

That logic might apply if they were making modified copies, but they weren’t.

Anonymous Coward says:

This is a horrible ruling by the judge. The truck stop didn’t do anything wrong, but advertise. If the truck stop had manually turned the TV off and just read advertisements or turned to a cc channel that was running the ads then that would have been legal. However, because they used an automated system, it is copyright infringement? That makes no sense! It’s no wonder why our patent laws are screwed up, because judges are making idiotic decisions that end up stunting creativity. The worst part about our legal system is when moron judges make inexplicable rulings, that companies then use as “precedence” to continue the stupidity.

Jay says:

It makes you wonder-what's going to be next.....

Copyright infringement(whatever that is)is a term being use by more and more companies who feel that people are given to much freedom to ignore them. With me, it’s not ignoring them but simply saving time. A 60 min program recorded on a DVR, I can watch in 40-45 minutes. The fast foward function on DVRs are not popular with advertisers because it gives people the abilty to skip the comericals.

I understand their frustration-but claiming copyright infringment every time there’s a problem is not the solution.

It kinda makes you wonder what’s going to be next, doesn’t?
Wesson cooking oil company claiming copyright infringment because are using Pam cooking spray instead?

RandomThoughts (user link) says:

Oliver, not understanding your industry (and I still don’t understand it after your post)I would imagine that the agreements in place allow this. I would imagine that the Flying J violated their agreement when the video feed was put in place, hence the lawsuit.

That does raise a good point though, I can see the agreement with the networks and the cable outlet (or whatever delivery system they use) but does that translate to the end user? Guess you really have to start reading those terms of service.

Anonymous Coward says:

“Presumably, the plaintiffs argument was that the programs are sold as is, commercials and all, as a single copyrighted work. Any modification of that copyrighted work (such as replacing generic commercials that come with the show with targeted ads), under copyright law, constitutes a “derivative work”, based on the original program.”

That’s a bit like saying that if you buy a book, you’re then obligated to read the entire book, in specified order and timeframe. If you flip through it first or skip any pages, or pick up a magazine before you’re done you’ve infringed.

Get real. This is an awful ruling. The content was bought legally, and it wasn’t resold or altered. Their commercials aren’t a derivative work, they’re a complete separate work that happenes to share an output device. All that flying J did was not direct the signal of the purchased work to their TV sets for a set period of time. If that’s infringement, then most of America infringes when the go to the john or make a sandwich during a commercial break.

Oh yeah, it is a commercial “break” isn’t it? It’s an intentional interruption in the actual content so that you can do other things. Once upon a time advertisers did little bits of entertainment to entice you to stay right where you were, now they just sue you into watching.

David says:

Need to clarify rules!

It has to be clarified whether advertising on TV is part of our contract with the broadcaster or signal provider. Or, is advertising an added bonus for the content creator to make easy money… which means that we are not obligated to include the advertising with the actual content of the show.

For example, it is understood that a magazine is usually bought by one person and, most likely, viewed/read by many (in waiting rooms, bathrooms, air plains, etc…. consequently, the magazine owners charge significantly more for from advertisers. We are not obligated to share a magazine (in-fact, you can also argue that it is illegal).

Similarly, with TV content, I have not contract with signal providers that states that I have to watch ads. It is an added bonus they get from us. If that ‘bonus’ is not there, they should find other means to generate income… such as charge for content.

Yes, other options are not as lucrative as advertising. However, just because a method is more lucrative doesn’t give you a right to using it!
Advertiser pay much more for TV ads because they are forced on the viewers (that’s us).

AnonymousCanuk (profile) says:

No so fast...

Sounds exactly like the problem we have here in Canada during the SuperBowl. Instead of watching the entertaining ads from the States, we get substituted ads from Canadian companies.

This substitution actually happens not just during the Superbowl, it’s common practice during imported broadcasts. I guess I don’t mind anymore as we now get to see Superbowl ads on YouTube.

It would appear that Canadian broadcasters have paid some license to run their own ads. This means that Super J could do the same thing. The business model already exists. Time to appeal.

Misdirected says:

Check your licence

Mike quote:

“After all, Flying J had paid for a license to show TV at its establishments. So that’s legal. “

In fairness to Mike (who took this information from someone else) the license to show TV would need to be verified. It likely is an ASCAP/BMI license which pays songwriters for radio or TV in bars and public places like truck stops. It is an extremely limited license that is dirt cheap (couple hundred dollars a year very rough range depending on size establishment). That license only insures songwriters get paid and has nothing to do with the rights of the TV content producers.

So if on research the above license is an ASCAP/BMI license then Mike’s statement above would be incorrect.

Anonymous Coward says:

Re: Check your licence

In fairness to Mike (who took this information from someone else) the license to show TV would need to be verified.

That’s easy to see. If they weren’t licensed to show the content then the case would have been about the showing of unlicensed content and the removal of commercials would have been irrelevant. But it wasn’t.

Matt says:

How are they breaking the law again?

From a technical standpoint didn’t they just flip the channel when the commercials came on? I mean they didn’t send their third party ads over the TV channel’s signal to other viewers outside of the truckers. I don’t see how automation of the process to change the channel to their own ads makes it illegal. If its cable they pay for the cable content and if its an over-the-air broadcast then its free content. Either way no one pays for ads. We all know its how TV makes money but we the consumer do not pay for it. I would love to read the Judge’s ruling on this one. This WILL get overturned.

Ed H. says:

what copyright?

This baffles me, too. Sure, there’s a copyright on “Friends episode #123,” but this ruling implies that the copyright being infringed is on “Friends #123 plus a specific selection of commercials for Ditech, Cialis, and a local carpet retailer.” There is such a thing as a compilation copyright but, like any copyright, it requires some element of creativity in creating the compilation, and I don’t think that commercial selection would pass that test.

beltwaymike (user link) says:

Read the Flying J contract

TV/radio contracts such as Flying J’s permit content to be merely aired — not altered and resold for additional profit, which is what Flying J did.

Commercial establishments such as bars/restaurants and cable companies that want to swap out commercials for their own content pay extra for that privilege. Why didn’t Flying J?

I agree that this is a lousy application of copyright law — Flying J’s breach of contract should have been sufficient, and if its contract for some reason wasn’t specific enough, then the broadcasters should have canceled the contract and renegotiated.

Anonymous Coward says:

A similar issue came up with web browsers a few years ago related to software (mostly spyware) that would detect banner ads and replace them with other banner ads. These were infringing on the copyrights of the web pages being displayed, but proxy filters that just removed banner ads were not. I seem to remember that argument being made here or possibly on other similar websites.

The issue isn’t skipping or deleting commercials, it’s modifying someone else’s work without permission. The content, taken as a whole, is a copyrighted work. Skipping or deleting part of it is perfectly legal, but when you replace part of it with your own work, you have now modified someone else’s copyrighted work, and that is clearly infringement.

This has no bearing on whether you can skip commercials when watching tv at home, or even wether or not gas stations can play tv shows with the commercials deleted. The only issue is whether they can display the content in a modified form (by replacing commercials) without permission, and the answer is
clearly that no, they can’t.

Anonymous Coward says:

Re: Re:

A similar issue came up with web browsers a few years ago related to software (mostly spyware) that would detect banner ads and replace them with other banner ads. These were infringing on the copyrights of the web pages being displayed, but proxy filters that just removed banner ads were not.

I must have missed that ruling. Which court was that?

Randy says:

Ad insertion/commercial detection has been going on for the last 50 years in the USA. Radio stations are guilty of this.

When the TV or Radio signal is played or seen on my personal property I own the signal unless I copy it and offer it for sale. What I choose to do with that signal is my business “which includes changing channels, turning off or turning the sound down”.

My question; how do I monetary benefit from watching or listening to commercials?

BRADLEY STEWART (profile) says:



SimonS says:

My 25 cents...

Hey, Mike — I’ve been following and collecting information on the Flying J case for over a year now; it’s interesting to note the number of responses your article has provoked on this issue. My interest is self-serving in that, as a casual dining franchisee and sports bar owner, I see tremendous value in running in-house ads on the HD monitors sprinkled throughout my stores. I’d love to see the use of ad-redirection technology sanctioned by the courts so I can make better use of all this big-screen digital signage for in-house ads; I had hoped that ABC et al vs. Flying J would have been the vehicle to force the issue.

Although you make some good points in your article (you just beat me to a blog entry on this topic), there is one significant misperception: In fact, no decision was ever rendered, in this or any related case that I know of, declaring that “the act of skipping commercials is copyright infringement.” Rather, NY District Judge Deborah Batts simply denied Flying J’s motion to dismiss the suit based on the “Homestyle” exemption and cleared the way for a trial to proceed back in March (see this article ) That’s when the plaintiffs made a settlement offer, which Flying J gladly paid to avoid the much greater expense of a trial. It would have been an interesting exercise had the trial continued, but for now the fundamental questions are undecided.

The other case mentioned in William Patry’s article, the SegOne vs Fox declaratory judgment, which was intended to force a decision on the issue, was not heard because of a jurisdiction issue.

I think it’s important not to overlook or misunderstand a key point here: An ad-detection or ad-redirection device doesn’t alter the networks’ copyrighted program content in any way (The more sophisticated devices go to great lengths to avoid even stepping on program content.) In contrast with a DVR, such a device does not store, edit, shorten, lengthen, transmit or otherwise monkey with network content. In fact, it doesn’t even “skip” or “insert” commercials; it simply changes the input to the television monitor when an ad comes on, whether synchronously with network ads or otherwise. As you rightly pointed out, I can do that with my remote control. If I use my remote to change the input to the TV whenever I spot an ad, am I violating copyright? If not, what is the legal difference in having a machine do this for me?

[Flame On]

For that matter, just what is my obligation to the networks, my “contract” with them? Sure, ad revenue in large part subsidizes content on commercial television, and the networks’ longstanding business model requires that some percentage of viewers are exposed to a portion of the orgy of ads they force on us daily. But while it’s in the broadcasters’ best interests to protect that model, viewers are not now and never have been under legal obligation to watch those ads (see this article ), and I seriously doubt that any network could prove damages due to devaluation of ad time, particularly in public places where viewership is ignored by A. C. Nielsen. So I guess we’re allowed to take bathroom breaks during American Idol after all, despite the opinion of the CEO of Turner Broadcasting (see this ).

Until this issue is decided one way or the other, the networks will bully whomsoever dares to mess with their model… who wants to defend a nuisance suit against such deep pockets? Some years ago, the parent companies of ABC, NBC, and CBS sued little SonicBlue over the ability of its ReplayTV device to share files (primarily) and skip commercials. SonicBlue folded before the courts decided the case, and the reborn ReplayTV company made concessions, leaving the popular press to mistakenly believe that skipping commercials was declared by the courts to be illegal. Tivo’s contribution to the debate, or perhaps their devil’s bargain, was to make the 30-second skip a user-programmable option.

[Flame Off]

Ad-detection and redirection technology from SegOne, CommercialKiller, TVPOS, and the German company TeleControl has the ability to automatically identify commercials within a broadcast signal and permits on-the-fly targeting of local ads to businesses and perhaps even individuals, and enables advertisers to audit stations’ running of paid-for ads (TVPOS). While this is all some F-in’ cool magic, it would be even cooler if those ads could be removed completely… but then that really would be begging for negative court attention!

I just don’t see the problem with a truckstop showing (and charging for) truckstop-appropriate ads limited to their own site, or bars running in-house beer ads to stimulate sales. Today there is no way to do this, affordably or otherwise, in cooperation with the networks; there’s only the promise of limited-function addressable cable boxes in the unspecified future. Ad-redirection companies provide a service that fills an unaddressed need for small business owners today.

While the networks’ kneejerk response to the threat to their business model was the Flying J lawsuit, wouldn’t it make more sense for them to embrace this technology themselves in order to move toward a more intelligent advertising paradigm? To the public’s benefit, targeted ads would likely result in fewer ad interruptions and greater value in each ad (see this) I know I’d much rather sit through one or two interesting ads every 14 minutes than endure a marathon of 8-10 ads aimed at a general demographic every 12 minutes… who wouldn’t?

Whether they embrace it or not, marketplace innovation will slowly force the networks to accept and deal with inevitable changes to their revenue models. Technology marches on, guys – evolve or get out of the way!


fed up says:

Legal mumbo-jumbo aside people, I would like to know how anyone justifies claiming ownership over something that they freely broadcast in the first place. It’s simply ridiculous, if you decide to beam something out into space, it’s your problem if I don’t do with it what you wish.

Say that I drive down the street throwing hundred-dollar bills out the window – when you pick one of them up, do I have the right to sue you if you don’t spend it how I would’ve liked you to?

If you own an establishment like this, I say show what you want, whenever you want, in any way you see fit. If broadcasters don’t like it…tough nuts, if they can’t make a profit without running to Uncle Sam for help every five minutes, maybe they need to look for a different business model.

See where things end up when we decide to employ government for purposes it’s not fit for? People get sued for turning off a television set.

AdWonk says:

Ain't technology great?

I agree – if we have to live with commercials, at least make them interesting. If a restaurant owner wants to run ads for today’s appetizer special, I can imagine how difficult and expensive that is through his existing options. Addressable cable boxes may someday ease the pain, but network limits on the space available for local ads (2 to 3 minutes per hour) would limit their effectiveness. segOne, TVpos, et al clearly provide a service to business owners that isn’t currently available through “approved” channels (so to speak).

Anonymous Coward says:

The broadcast is copyrighted as a compilation. To change that compilation is to generate a derivative work. The license agreement Flying J signed undoubtedly (or the broadcaster should fire his lawyers) included a prohibition on derivative works. Flying J clearly violated the copyright law, as well as the license terms.

Anonymous Coward says:

Re: Re:

The broadcast is copyrighted as a compilation. To change that compilation is to generate a derivative work.

The broadcast wasn’t changed. It just wasn’t viewed in it’s entirety. You logic would make it illegal to change channels.

Flying J clearly violated the copyright law

Clearly, if they did then changing channels is also illegal.

as well as the license terms.

Unless you have access to their license I’d say you are making stuff up.

oldBroadcaster says:

Judge was correct.

U-m-m. I’m the Anon of the above comment. Hit the submit link too quick…

to continue…

For HOME use, however, any changes or deletions you wish to make are perfectly legal as long as you wish only to enjoy the fruits yourself or for your friends and family *at no charge*. The right to record and modify incoming signals for personal use is forever enshrined in the famous Sony vs Walt Disney case of many years ago.

AdWonk says:

Re: Judge was correct.

“The broadcast is copyrighted as a compilation. To change that compilation is to generate a derivative work…”

Ah, but there’s where a different judge might disagree. Were changes actually made to a compilation, or was the truckstop just channel-hopping? If the truckstop were to simply cut to its ads on a timer for 2 out of every 15 minutes, in what way could that possibly be prohibited by the broadcaster’s license, or found to produce a derivative work? You’re talking about an intangible here, a fleeting image on a screen, not an edited recording, a plagiarized paragraph, or a mustachioed Mona Lisa. Unless I missed something, customers weren’t charged for viewing the performance, because that would surely be prohibited in the provider’s contract.

On the advertising side, this practice simply carves out time and space on the store’s television screens for ads or whatever. Doesn’t a truckstop have the right to profit from the eyeballs they’ve collected in their place of business? How is this different from charging for space on a roadside billboard?

AdWonk says:

Re: Judge was correct.

And, by the way, as Mr. Simons says above, the judge didn’t find that “the act of skipping commercials is copyright infringement,” as you seem to believe. She merely denied Flying J’s motion to dismiss based on their claim of shelter under the Homestyle exemption of the Copyright Act, and so permitted the lawsuit to continue. Too bad it was settled instead.

Anonymous Coward says:

Re: Judge was correct.

The right to record and modify incoming signals for personal use is forever enshrined in the famous Sony vs Walt Disney case of many years ago.

You need to read the story. They weren’t recording the broadcast. They were changing channels when the commercials came on. I know that some people in the broadcast industry have going around for some time now claiming that that changing channels or leaving the room when commercials come on is “theft”, but until now they hadn’t found a judge to go along with them.

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