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.

Filed Under: commercial skipping, copyright infringement
Companies: flying j, segone

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  1. identicon
    SimonS, 19 Oct 2007 @ 10:45pm

    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!


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