[mythtv-users] Congress to Make Commercial Skipping Illegal

Wendy Seltzer wendy at seltzer.com
Tue Nov 16 17:05:23 UTC 2004


At 10:24 AM 11/16/2004 -0600, Lane Schwartz wrote:

>I understand that Section 212 of this bill makes it explicit that it
>is OK to skip sections of a movie. The way I am reading it, it also
>seems to say that it is not OK to use a computer program to skip
>commercials.
>
>(This is also the interpretation of the Wired article:
>http://www.wired.com/news/politics/0,1283,65704,00.html)
>
>Am I incorrect in my analysis?

Not incorrect so much as incomplete.  Section 212 is structured as an 
exemption from copyright/trademark liability, which you only need if what 
you're doing is otherwise (c)/TM infringement.  While the exemption here is 
limited to scene skipping, not commercial skipping, I'd argue that you 
don't need the exemption for either activity, because both would be covered 
by copyright fair use (and don't even invove trademark law).  That's what 
we argued on behalf of ReplayTV owners, 
<http://www.eff.org/IP/Video/Newmark_v_Turner/>, and the makers of the 
ClearPlay technology for skipping scenes in movies.

So this part of the bill doesn't create new liability for commercial 
skipping, it just fails to take some away where it may or may not 
exist.  How that would play out in court would depend on the circumstances 
(and the lawyering).

Overall, it's still an awful bill.
<http://wendy.seltzer.org/bills/hr2391.pdf>
<http://www.publicknowledge.org/issues/hr2391>

--Wendy

--
Wendy Seltzer -- wendy at seltzer.com
Staff Attorney, Electronic Frontier Foundation
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://wendy.seltzer.org/
Chilling Effects: http://www.chillingeffects.org/



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