April 25, 2005 | By Fred von Lohmann

FECA and Commercial Skipping

So Marty Schwimmer (The Trademark Blog) asked whether the Family Entertainment and Copyright Act creates copyright immunity for those who make devices capable of auto-magically skipping commercials (like the ReplayTV 4000). The answer is no, but it's interesting how we get there.

The statute creates a new copyright exception for "the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture." At first blush, you might think that would greenlight automated commercial skipping. Not so, according to the committee report that accompanies the measure, which says that "this Act has no bearing on either the legality or illegality of such services or any litigation over the issue."

Why not? The committee report appends an analysis by the Copyright Office explaining that the commercials are, themselves, separate and independent "motion pictures" for the purposes of the Copyright Act, and thus the Act would immunize skipping of "limited portions" of commercials, but not entire commercials.

The Copyright Office's line of reasoning is interesting for several reasons:

  • It appears to be in some tension with the Seventh Circuit's statement (in dicta) that commercial skipping "amount[s] to creating an unauthorized derivative work." See In re Aimster Copyright Litigation, 334 F.3d 643, 647 (7th Cir. 2003). If I follow Judge Posner's logic, the television program with its embedded commercials constitutes a single work (though perhaps he meant that it was a compilation of multiple works).
  • If the Copyright Office is right, then who would have standing to sue over commercial skipping? It would appear that the companies that own the copyrights in movies and TV programming would be out of luck, since they don't own the copyrights in the commercials. And even assuming for a moment that the program and commercials together constitute a compilation, it would be the broadcaster who creates and owns rights in the compilation (since different broadcasters insert different commercials), not the owner of the movie or TV program. At least I think that's how it plays out.

This debate is more than academic, as it suggests that the claims against ReplayTV for enabling commercial skipping should have been dismissed. It's too bad that SonicBlue/ReplayTV was forced into bankruptcy before the Copyright Office could hand them such fascinating ammunition to use against Hollywood!

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