The Sunday New York Times Business Section ran a story by Randall Stross entitled "Someone Has to Pay for TV. But Who? And How?, accompanied by a large glossy (posed) photograph of a well-dressed young man handcuffed from behind and holding a TV remote control. The story begins with the author's reading of a patent application filed by Royal Philips Electronics, described as "threaten[ing] the inalienable right to channel-surf during commercials or fast-forward through ads in programs you've taped," or, alternatively, as "uphold[ing] the right to avoid commercials, but only for those who would pay a fee." The author calls this a "pay to surf" technology, where viewers are disabled from skipping commercials unless they pay to skip them.
Mr. Stross then goes on more generally to discuss the effect of Digital Video Recorders on advertising revenues, and how things will have to change: someone will have to pay for the privilege of having advertising-supported free television, something of a paradox it would seem, but it is clear that Philips has the public in mind in fingering who should pay for "free" TV. The Supreme Court's Sony decision is mentioned, and two law professors are quoted about how a Sony decision might be affected by the future existence of the pay-to-surf technology. Apparently, at least one of the professors believes that the existence of a revenue-generating source from consumers who do not want to watch commercials would be a "compelling fact that would have made a difference" in the Sony case. An inflammatory remark four years ago by Jamie Kellner, then head of Turner Broadcasting System, in an interview in CableWorld magazine that viewers who use their DVRs to fast forward past comemrcials were committing "theft," and "stealing the programming" was also noted.
Mr. Kellner's and the law professor's comments serve to put important issues in play, though, such as how copyright, and fair use in particular, are being warped to deal with noncopyright issues. The Sony case was not "about" copying at all, and certainly not about copying of free over-the-air broadcasting for which there was no secondary market in the late 1970s when the suit was brought. Instead, Sony arose out of Hollywood's fears that fast-forwarding through commercials would decrease the amount paid by advertisers, a fear that it retains 30 years later. In the later 1970s, the Nielsen company was figuring out how to factor VCR viewing into its ratings, and the handwriting was on the wall for future contracts between the content owners and the networks as well as between the networks and their advertisers. (One can read about this in James Lardner's classic 1987 Fast Forward: Hollywood, the Japanese, and the Onslaught of the VCR.
To be clear, then about Sony: the fourth factor analysis of harm to the market for the copyrighted work was a bunch of hoo-ha in that case. The fourth factor concerns ways in which copying of the work itself damages similar or otherwise relevant markets for the particular type of copying done by defendant. The fourth factor most certainly does not concern harm to advertisers, nor does it reach reduced advertising revenues because viewers are not copying or not viewing a third party's works, i.e., the advertisements. Sony, properly understood, did not deal with copying of the works in question at all. Whatever else one thinks about how to deal with the issue of advertising, we should not distort basic principles of fair use, when the real issues lie outside of copyright altogether.