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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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September 29, 2005

RentMyDVR. Buy my lawsuit?

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Posted by Wendy Seltzer

PVRblog found a service that sounds like something out of a law school copyright exam: Rent My DVR.

Never miss your Favorite TV Show again!

Now you don't have to remember to program your DVR or VHS to record you favorite TV show. With the Rent My DVR site you can simple hire someone that will do the recording for you.

Simply file a request on our site to have someone record for you and as soon as a new episode of your favorite show has been broadcasted, it is downloaded automatically to your computer and you can watch it whenever you want.

The site appears to be a "matchmaker," facilitating digital transfer of shows from someone who has recorded them to another who wants to watch it. (It also says it's based in Sweden, but since I know U.S. copyright law better, I'll stick to that.)

The site analogizes its users' activity to the time-honored practice of giving or lending a videotape to a friend -- without the videotape. So would judges extend fair use protection to this transposition of an offline use, or would they trip over the fact that multiple "copies" are being made? If there's infringement, is RentMyDVR a contributor, vicarious assister, inducer?

Answer guideline: 2000 words or less.

Comments (3) + TrackBacks (0) | Category: IP Markets and Monopolies


COMMENTS

1. Joe Gratz on September 30, 2005 12:03 AM writes...

Now for you contracts whizzes in the class -- assume the following additional (true) fact.

According to the flash demo on the site, before submitting a recording request, the user must click a check-box next to the following statement:

"I assure [you] that I have an agreement with ABC that allows me to record this show."

Same case, different case? Can we impute to RentMyDVR the knowledge that effectively all consumers who check the box are lying? Does it matter if we can?

(My short answer, Professor Wendy: the check box makes no difference because everybody knows the requesting user is lying, the user who records the show and sends it to the requesting user is infringing because they're recording it for profit, RentMyDVR is vicariously liable for that infringement since they too are profiting with actual knowledge of infringement, and the requesting user is contributorily liable for that infringement. I am, as always, eager to be persuaded otherwise.)

Permalink to Comment

2. Randy Zagar on September 30, 2005 4:59 PM writes...

I didn't realize that RentMyDVR was required to assume, as a matter of law, that all consumers who check that radio box are lying... Oh, well.

On another front, it's quite clear (at least to me) that the consumer would have "authorized access" to any and all ABC programming, provided that ABC's programming is available to them through traditional channels, i.e.: over-the-air broadcasting, or through cable/satellite subscriptions.

In the case of over-the-air broadcasting, ABC, by making a public broadcast without fee, has "authorizing" everyone in its broadcast coverage area to "make use of" their programming.

Likewise, in the case of cable services, the consumer would have a contract with a cable provider that clearly identifies whether or not ABC programming is part of their service. Let's assume for the moment that it is...

In both instances, the consumer has "authorized access" to all ABC programming, and Sony v. Universal gives consumers the right to "make copies of" ABC's programming. So at the end of a RentMyDVR transaction, a consumer who has "authorized access" to ABC programming has now "made a copy of" said ABC programming.

Where is the infringement?

If, however, the consumer is a lying sack of snot and can't normally see ABC programming in his home... Well, then that consumer is now guilty of "theft of signal" and has caused RentMyDVR to create an infringing copy through his/her deception.

Permalink to Comment

3. Randy Zagar on September 30, 2005 5:26 PM writes...

Oh yeah, Sony charged me money for my VCR... And I'm pretty sure they made a profit.

Since they have to assume, as a matter of law, that I'm a lying sack of snot (and am obviously using my VCR to play tapes I borrowed from someone else), doesn't that make them vicariously liable?

It's not clear to me what argument can be made against RentMyDVR that wouldn't also apply to Sony. Then again, Sony got a get-out-of-jail-free card from the Supremes. RentMyDVR probably doesn't have the deep pockets needed to get one of their own...

IMHO, policy and law shouldn't care about the deep technical details. Whether or not I have "authorized access" to the protected work is the only immutable question here.

As long as I have "authorized access", then the exact method for HOW I obtained a copy of a protected work shouldn't really be so important...

Laws and policies written to survive the test of time should be addressing the true long-term issues, instead of focusing on the specifics of the technology.

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