Ars Technica is featuring an excerpt from an interview with Marybeth Peters, the Register of Copyrights here in the United States. Assuming that the reported quotations are substantively correct and that they accurately reflect the views of the Copyright Office, it appears that the Copyright Office has adopted an exceedingly narrow reading of the Supreme Court’s seminal attempt to reconcile technological advance with copyright’s fair use doctrine, Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) (more popularly known as the “Betamax case”). According to Peters, Sony carries essentially no force outside the specific factual context in which it arose — indeed, Sony doesn’t even immunize end-users from liability for taping cable television programming for the purpose of time-shifting:
The Court’s ruling in the Sony case was limited to “free, over-the-air television for time-shifting,” she tells Ars. “It is not space-shifting; it’s not anything beyond that. It’s not off cable, it’s not off video-on-demand, and yet if you talk to most consumers, they think that anything they do in the home that comes through their television set is fair use.”
Although it’s tempting to dismiss this as just the opinion of one official, the Copyright Office’s views nevertheless carry substantial weight with the courts under basic principles of administrative law. The Copyright Office’s highly restrictive view of Sony might also explain the Office’s reluctance to use the rulemaking authority that it shares with the Library of Congress under Section 1201(a)(1)(C) of the Digital Millennium Copyright Act to import more of copyright’s fair use exceptions into the DMCA: as the Copyright Office apparently sees it, there’s really nothing to import — Sony, on this view, was a decision about analog technology and therefore doesn’t protect digital uses of content at all.
This interpretation drains a great deal of the force from the Sony precedent — more so, I think, than can plausibly be sustained. Even the Supreme Court, which unquestionably imposed new limits on the reach of Sony in its more recent decision in MGM v. Grokster, did not at any point suggest that Sony should be limited to its precise facts. The principle of media neutrality — to wit, that copyright protection attaches to works, irrespective of the particular form of medium that happens to be used to store or transmit the work — also seems to suggest that Sony necessarily carries force beyond the specific technological context that produced the Court’s decision. The Copyright Office’s interpretation calls into doubt on a number of court decisions that expressly built upon the foundation of Sony, such as RIAA v. Diamond Multimedia Systems, 180 F.3d 1072, 1079 (9th Cir. 1999) (“The Rio merely makes copies in order to render portable, or ‘space-shift,’ those files that already reside on a user’s hard drive.”).