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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?