Why Fox Thinks That Skipping Commercials is Like Robbing a Bank

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In its case against DISH, Fox is arguing that all TV viewers who skip commercials are copyright infringers. Of course, it is not doing so directly, but it's the clear implication of its arguments. This post will explain how this is.

It's easier to explain legal concepts in terms that everyone is familiar with. Copyright infringement doesn't have much in common with bank robbery, but they're both illegal, and bank robbery is easier to explain. Here's how Fox argues that TV viewers are like bank robbers.

A person who robs a bank is obviously guilty of bank robbery. In copyright terms we would say this person is "directly" liable.

The person who drives the getaway car is not directly robbing the bank himself. But assisting in a bank robbery in this way is still illegal. In copyright terms we would say that this person is "secondarily" liable. In bank-robbery terms we would say this person is liable as an "accomplice." In copyright, the same penalties apply for secondary liability as apply for direct liability.

However, even though the getaway car itself is part of the crime, we would not say that Chevrolet is secondarily liable.

In the DISH case, Fox is saying that TV viewers are like bank robbers, since it argues that recording TV shows and playing them back without commercials is copyright infringement. Fox is not suing TV viewers, however--they simply need to establish that skipping commercials is copyright infringement, so they can go on to find DISH secondarily liable. (Of course, they are wrong: users have a fair use right to record programming and play it back however they want.)

After arguing that TV viewers are direct infringers--the bank robber in our analogy--Fox then argues that DISH is like the driver of a getaway car.

This part of their argument doesn't work, because DISH is more like a car manufacturer, like Chevrolet, and not like a getaway driver. Courts have consistently held that consumer electronics that involve making recordings, like VCRs, DVRs, and iPods, are just tools, and are legal.

But that's not what's important here. In its arguments Fox concedes that most recording equipment cannot give rise to secondary liability under the law today. It just wants to make an exception for DISH. But nothing about this affects Fox's basic argument that all viewers, using any equipment, who skip commercials are copyright infringers. They do not make this argument outright, but it's a clear implication--if recording shows and then skipping commercials is illegal then it's illegal whether your DVR says DISH or TiVo.

Fox's "concession" only has to do with whether you can find the equipment manufacturer liable, not with whether a TV viewer is a copyright infringer.

Copyright laws are passed by Congress. While Congress does not always structure copyright in the best interests of the public, there are limits. As the Supreme Court said in 1984 when it ruled that VCRs and the home recording of television shows are legal:

"One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible."

Home recording is legal, but Fox wants to change that. We shouldn't let it.

Images: Flickr users smithco, jodimarr, cloudzilla; vimeo user Nick Cross.????????

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