Fair Use Decisions Could Turn in Favor of Content Providers, Say IP Attorneys
TV “time-shifting” and the ubiquitous duplication of other copyrighted materials could shift court rulings on fair use in favor of content providers, said corporate IP attorneys at a Silicon Flatirons event at the University of Colorado Tuesday. As technology progresses and allows for the expansion of fair use claims, content providers need to assert their copyrights, even if they are not operating within new technological media, said Stan Pierre-Louis, Viacom associate general counsel for IP. Content providers don’t have the prerogative to make fair use or copyright claims, said John Bergmayer, Public Knowledge (PK) senior staff attorney.
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There could be a “swingback in the direction of the market harm becoming an important player” in fair use decisions, said Pierre-Louis. A company like Netflix is bound to ask, Why am I buying content if everyone is allowed to copy it for free, he said, citing peer-to-peer protocol BitTorrent. Viacom isn’t worried about “incidental” infringement, but “wholesale copying,” which is affecting its partners’ ability to “flourish,” he said. “I'm not so sure time-shifting is here to stay,” especially if it involves the “alteration of the work,” said IP lawyer Mindy Sooter of Faegre Baker. Courts may begin to look with a “little more detail” on how time-shifting impacts the market, she said.
To say one only cares about “wholesale copying” isn’t a “very narrow or circumspect view” of fair use, said Annette Hurst of Orrick Herrington. Anyone with a DVR is “engaging in wholesale copying,” she said. “The ability to predict the outcome of a fair use determination is tied to the moral proclivity of a judicial officer to view something as either theft or freedom,” she said. “We have no idea what fair use is.”
"When there’s a market there that you have the exclusive right to exploit,” the fact that one isn’t there to exploit it “doesn’t change the fact that you can, even if you're slower than a competitor who’s an intermediary,” said Pierre-Louis. “Isn’t the market dependent on the technology?” asked PK’s Bergmayer.
"You can’t just say that you're going to postulate a use that someone” claims is a fair use, said Bergmayer. To say a company will start selling content to consumers “in the future” isn’t enough to negate the fair use, he said. “Why not?” asked Pierre-Louis. “You can always” make that “hypothesis,” said Bergmayer. Since the Supreme Court ruled 30 years ago that time-shifting was a fair use, “Congress hasn’t repudiated” the fair use principle and “has repeatedly enacted it at every opportunity in which they've considered private non-commercial uses to be fair,” said Hurst.
"You still have your TiVo,” said Pierre-Louis. “If it is your view that anything that promotes wholesale copying in a way that might impact a market becomes unfair, then my TiVo isn’t going to be long for this world,” said Hurst. “I'm not saying that,” said Pierre-Louis. Rightsholders should “decide when something should constitute infringement,” he said. Rightsholders shouldn’t be “in the business of determining the scope of their rights,” said Bergmayer. “Congress and the courts decide what copyright means,” and they “also created fair use,” he said. “You're putting forward an argument that allows the internal mental state of the copyright holder to essentially eliminate fair use,” said Bergmayer to Pierre-Louis. If someone has an “exclusive right” to content, but someone else gets to the technology to distribute that content first, then “all bets are off?” asked Pierre-Louis. The “intellectually honest argument” is that lawmakers can “encounter technological contexts where they haven’t decided one way or the other,” said Harry Surden, University of Colorado associate law professor, who moderated the panel.
"Yes, technology has changed, but has consumer behavior fundamentally changed in a way that should cause us to upend the reliance” on fair use developed over the last 30 years? asked Hurst: Fair use is “under constant threat” and should be “zealously guarded.”