June 30, 2003
Check it out.
Madster lost. Go here. More to follow.
Bullet points: Posner says:”Subject to this qualification, building a library of taped programs was infringing because it was the equivalent of borrowing a copyrighted book from a public library, making a copy of it for one’s personal library, then returning the original to the public library. The third use, commercial-skipping, amounted to creating an unauthorized derivative work, see WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 625 (7th Cir. 1982); Gilliam v. American Broadcasting Cos., 538 F.2d 14, 17-19, 23 (2d Cir. 1976); cf. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1173 (7th Cir. 1997), namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since “free” television programs are financed by the purchase of commercials by advertisers.”
Wow. I have never heard of those cases, but that statement flies in the face of the arguments made by ReplayTV and Clearplay (I think that’s the one that makes the movie-modifying DVD player). Wow.
Next, Posner rejects the RIAA’s argument that the Betamax defense does not apply as well as the argument that primary infringing uses overrides other non-infringing uses. And, the court “We therefore agree with Professor Goldstein that the Ninth Circuit erred in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001), in suggesting that actual knowledge of specific infringing uses is a sufficient condition for deeming a facilitator a contributory infringer. 2 Paul Goldstein, Copyright