Amicus Brief of Law Scholars in Fox v. Dish, No. 12-57048 (9th Cir)
Author(s): Jason Schultz
outcome of this case will affect the future of private non-commercial
time-shifting of television programs – a fair use right expressly
recognized by the Supreme Court almost three decades ago in Sony Corp.
of America v. University City Studios, Inc., 464 U.S. 417 (1984). The
advance of technology from the videotape recorder (“VTR”), to the
videocassette recorder (“VCR”) considered in Sony, to today’s digital
video recorder (“DVR”) has not – nor should it – affect that right.
Sony, using the Hopper (Dish’s DVR) and PrimeTime Anytime (“PTAT”) is
as much a fair use as the original Betamax technology. Both enable
private non-commercial time-shifting of legally acquired television
programs, and Fox’s attempt to overrule Sony by claiming it has licensed
time-shifted programming to internet websites such as Hulu and iTunes
should be to no avail, as fair use markets cannot be reclaimed from the
public through subsequent licensing practices. To allow this would be to
take settled fair uses and turn them into infringements over time at
the copyrights holder’s discretion.
Fox continues its attack on
fair use by seeking to stop Dish’s creation of quality assurance (“QA”)
copies of Fox’s programs, which Dish then uses to access unprotectable
facts about the programs – the start and stop times of show segments –
and to use those facts to ensure that AutoHop, its commercial skipping
program, responds appropriately. Use of such intermediate copies in
order to access non-protected information has long been held to be fair.
Fox attempts to distinguish these precedents by arguing that such
copying is somehow not “transformative” of a message or meaning within
the television program itself; but such transformation is not required
for the purposes of understanding works or extracting unprotectable
Keywords: copyright, fair use, time shifting, personal use