Copyright Implications of Commercial Skipping

Abstract

This paper seeks to analyze the implications of commercial skipping under the Copyright Act, examining relevant case law and empirical evidence. Part One provides some background information on PVR technology and defines the paper’s scope. Part Two introduces arguments against commercial skipping. Part Three summarizes relevant case law. And, Part Four analyzes commercial skipping under the Copyright Act, focusing on the following questions: 1) What is the protected work? 2) Who owns copyright rights in the protected work? 3) Which exclusive rights are arguably infringed by commercial skippers? 4) If commercial skipping is infringing, will the fair use defense apply? The paper then revisits the arguments levied against PVR-enabled commercial skipping, concluding that commercial skipping is not infringing and, even if it were, the fair use defense, codified in §107 of the Act, which permits limited unauthorized uses of copyrighted material, would apply. Additionally, it recommends, to the extent that commercial skipping poses real problems, that development of alternative television advertising strategies should be preferred to litigation, technology mandates or legislative reform.

Keywords: Intellectual Property, Copyright Law, Technology, Digital Video Recorder