Time-shifting is the recording of a live broadcast (usually television) so that it can be viewed (or heard) later at a more convenient time. In order to understand the history of time-shifting, and the legal issues that surround it, it is important to understand the concept of fair use. Formerly known as “fair abridgement”—when books were the only form of media that could be readily copied—fair use is a legal principle that limits the exclusive rights of copyright holders and allows a person to use another’s copyrighted work in various reasonable ways without the express permission of the copyright holder.

Contrary to what the entertainment industry might want consumers to believe, fair use is not a recent addition to copyright law, nor is it merely a statutory right: it is, in fact, implicit in the copyright clause of the U.S. Constitution. In the words of the Supreme Court (Campbell v. Acuff-Rose Music), “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘to promote the Progress of Science and the useful Arts….’ U.S. Const., Art. I, 8, cl. 8.5. For as Justice Story explained, ‘in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow, and use much which was well known and used before.’”

Fair use began under the very first copyright law—the Statute of Anne, which was enacted in England in 1710—under which the courts ruled that in some circumstances fair abridgements did not infringe the creator’s copyrights. The first appearance of fair use in U.S. jurisprudence, however, is believed to have taken place in 1841 in the case of Folsom v. Marsh. The case involved a two-volume biography of George Washington, written by Rev. Charles Upham, more than a third of which consisted of letters of George Washington taken from another published biography of Washington written by one of the plaintiffs. While ruling in favor of the plaintiffs, Circuit Justice William Story stated “a fair and bona fide abridgement of an original work, is not a piracy of the copyright of the author” and, more importantly, defined the criteria used to judge such cases, “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work.”

The influence of Justice Story’s criteria can be seen in Title 17, created by the 1976 copyright act, which represents the first time that the principle of fair use was explicitly codified into law—in fact, page 66 of House of Representatives Report Number 94-1476 states that congress “intended to restate the judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” Section 107 of Title 17 sets no concrete rules but, instead, includes four criteria for determining fair use on a case-by-case basis: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.

The very same year that fair use was first codified into law, Sony released its Betamax VTR (video tape recorder) into the market—the machine’s ability to time-shift television programming being one of its main selling points. In November of that year, Universal (later joined by Disney) sued Sony in an attempt to prevent the machine from being sold, arguing that time-shifting represented direct copyright infringement on the part of consumers and that Sony, for manufacturing a device that could be used for this purpose, was guilty of contributory infringement. Some believe that Universal may have also been trying to kill the competition as test marketing of Universal’s DiscoVision laserdisc player was set to begin the next year.

The trial began more than two years later, in January of 1979, and, along the way, Sony picked up some allies of its own. Many in the business of broadcasting, such as the NCAA, NFL, NHL, and (with Mr. Rogers as their spokesperson) the Corporation for Public Broadcasting, with different motives but all with the same reasoning, supported time-shifting because they believed that it could increase their viewership by allowing those who would otherwise miss programming to view it later at a more convenient time. This support from those in the business provided another argument for Sony, namely that, even if time-shifting weren’t a fair use, Universal had no right to prevent time-shifting that was authorized by other entities for their own programming.

In October of 1979, a U.S. District Court ruled in favor of Sony, declaring time-shifting to be a form of fair use, and finding Sony innocent of contributory infringement on the grounds that Universal could not prove that either the Betamax product or the practice of time-shifting was economically harmful. The saga was not over, however, as Universal appealed to the U.S. Court of Appeals who, two years after the first trial, subsequently reversed the lower court decision and ruled in favor of the plaintiffs. Sony subsequently appealed that decision to the Supreme Court who reversed the Court of Appeals and ruled in favor of Sony in a narrow 5-4 decision, finding Sony innocent of contributory infringement and, most importantly, declaring time-shifting to be a form of fair use.

Recently a struggle was waged over encoding rules for digital broadcast and high-definition television. Part of this struggle was over two technologies the entertainment industry was pushing in order to prevent analog recording of digital broadcasts: selectable output control and downresolution. Selectable output control (SOC) would allow broadcasters to cut off programming to a consumer’s T.V. set on a program-by-program basis. Downresolution allows the vertical and horizontal resolution of a picture to be halved on a program-by program basis, resulting in a picture with one-quarter of the pixels the consumer paid for. In addition to pushing for downresolution, the MPAA first declared to a congressional committee that it was opposed to selectable output control but later pushed the FCC to mandate it in it’s encoding regulations. Consumer advocates and the consumer electronics industry fought the technologies and, as a result, on September 10 of this year, the FCC banned the use of selectable output control and instituted a limited ban on downresolution.

On April 29, 2002 many consumers were shocked to learn that Turner Broadcasting CEO Jamie Kellner declared skipping commercials an act of thievery in a Cableworld magazine interview; however six months earlier many broadcasters (Paramount, Disney, NBC, Showtime, UPN, ABC, Viacom, and CBS) had already filed a lawsuit against ReplayTV, and its parent company SonicBlue, accusing them of contributory and vicarious copyright infringement for including an AutoSkip feature in its ReplayTV 4000 model that allowed commercial-free viewing of recorded programming. The lawsuit dragged on for almost a year and a half, with 25% of SonicBlue’s overhead dedicated to it, and ended when SonicBlue declared bankruptcy. SonicBlue’s ReplayTV arm was sold to D&M Holdings and the new owners decided to not include the AutoSkip feature in future models. Because of these events the question of whether or not commercial skipping represents copyright infringement has not been settled by the courts and someday consumers may yet be branded criminals.