My Cold, Dead Hands

Bill Patry and Randy Picker each have interesting comments on last Sunday’s Times story about DVRs and the pending application to patent technology that would prevent consumers from skipping commercials in DVR’d programs.

Bill and Randy both point out that the technological “unbundling” of televised content and advertising highlights a weakness in the Supreme Court’s decision in Sony, which didn’t imagine such a thing, and maybe couldn’t have. What happens to copyright analysis, Randy argues in the law review piece that he links to, and what happens to fair use in particular, when the consumer has the technology in hand that allows the reconfiguration of the work itself? Randy writes:

In many ways, the central question for advertising-supported content is who controls the bundle of content and ads.

It’s not just a question for advertising-supported content; it’s the question for digital content of all sorts. I have to confess that the latter question interests me much more than commercial viewing does. I’m not personally all that troubled by the prospect of being compelled to watch commercials when I use a DVR. Because I don’t own a DVR, and aside from checking the weather once in a while and a quadrennial World Cup soccer marathon, I hardly ever watch television. I tend to look at television as “integrated content and ads”; I don’t take advantage of my technologically-enabled power to unbundle things. My preferences, obviously, are idiosyncratic. I know that a lot of people care deeply about their Tivos and their television. Which raises a question: How should heterogeneous consumption patterns and heterogeneous utility metrics factor in fair use analysis?

One thought on “My Cold, Dead Hands

  1. I think there are two answers to your question about heterogeneous consumption patterns and utility metrics. The first goes something like: “I may not like to watch television as much as you do, but I will defend to the death your right to do so.” TV is deeply important to some, and forcing a radical change in consumption patterns for a large number of consumers could be quite troublesome. From this position, we can develop a robust defense of a consumer’s “right” to flip channels during commercials. The second approach holds that people know quite well what they’re getting into when they purchase Tivo, and that they should accept the consequences as such. I find this position appealing because I seldom watch television and am hesitant to see it– particularly DVR– as an inalienable “right.” However, when doing policy, law, and other forms of social ordering, I think it’s important that we ignore our tastes and preferences and look at society writ large– what it prefers and where trends are taking it. This, then, leads me to lean more toward the first position. A tangential question: what about the social good of granting people the freedom not to watch commercials? May this even be good for advertisers, creating an incentive to make better commercials that reach out to more savvy consumers?

    PS: I’ll see you in class next year. I’ll be a 1L in the IP certificate program…

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