Oh, the cleverness

Oh, the cleverness

Posted Nov 19, 2004 22:25 UTC (Fri) by giraffedata (subscriber, #1954)
In reply to: Oh, the cleverness by mp
Parent article: Senate May Ram Copyright Bill (Wired)

This is not the big deal it seems to be. What's in question is an "affirmative right." That's where a law says that people have the right to do certain specific things even if some more general law seems to say otherwise. It is a pre-emptive strike -- it does not imply that there is some more general law that says otherwise.

This bill got confusing because the current question is actually a removal of an affirmative right. The original bill said people have the affirmative right to sell machines that help you skip anything you want. The amendment whittles that down just to skipping officially offensive stuff, and in no case commercials.

But its all totally irrelevant if there isn't some other law telling you you can't sell machines that help you skip stuff. And the overwhelming legal evidence is that there is not.

There is a part of US copyright law that says only the copyright holder can authorize someone to "prepare a derivative work." Making a version of a movie with some scenes missing seems prettly clearly to be preparing a derivative work. But, as the US Copyright Office testified before Congress, simply skipping the scenes as you watch the movie is not preparing anything, because the edited version doesn't take a fixed form.

And that takes us to digital video recorders, which sometimes contain tools to help you record material with pieces missing. That might be a fixed form. But even then, other provisions of copyright law might render the derivative work classification irrelevant in this case. Replay TV (a DVR model) used to have a facility for skipping commercials. Someone brought legal action under the copyright law against the manufacturer. The legal matter was not resolved, but Replay thought the case was strong enough that it removed the feature from the machine rather than fight any more.

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