Copyright Policy and the Future of Television

The digital age raises complex challenges for copyright law and policy. During the past few years, new conflicts have emerged between copyright holders and those developing new technology. These conflicts will influence the future of television, which is facing a series of pressures similar to those that have disrupted a range of information industries (newspapers, music, land-line telephone service, etc.). In particular, the “cord-cutting” trend—in which a host of new technology services are providing access to copyrighted programming over the Internet—has been described as a potential death knell for traditional TV.

A series of lawsuits brought in recent years, including the Cablevision remote DVR case, the DISH Hopper litigation, and the cases against Aereo and FilmOn, highlight the conflict and promise to shape copyright law in important ways. Most notably, these cases raise critical questions about two important lines of copyright doctrine—the public versus private performance distinction, and the fair use defense. From a business perspective, the cases will influence not only the future of the TV marketplace, but also the dynamics of paid-advertising and emerging business models.

This conference will bring together a series of leading scholars, practitioners, and business executives to discuss the copyright law issues and their business implications. The first panel will address competing interpretations of how the Copyright Act treats “individualized transmission systems”—that is, systems ranging from traditional video on demand to Internet video websites to remote-DVRs, all of which maintain a dedicated/unique transmission for each user. In such systems, how should courts draw the statutory distinction between public and private performances? Is the dedicated transmission enough, as Aereo argues, to make every such transmission “private”? What implications does the ultimate ruling on this issue have for the emergence of cloud computing, an issue that some (such as Cablevision) have highlighted as a core concern?

The second panel will discuss the concept of “copying” TV programming and when the fair use defense applies, starting with the question of what constitutes “volition” for purposes of making a copy. The panel will also discuss the question of how far fair use should extend. To what extent does the law authorize copying beyond the time-shifting permitted under the Sony/Betamax case? Does it permit place shifting/space shifting? Does it permit recording entire blocks of programming and playing them back without advertising, as argued by DISH in the Hopper litigation? Finally, does the customer’s fair use right depend on whether the transmission path used for time-shifted viewing is the same one the customer could have used to watch the program live (as in the original Sony case)?

The final panel will place the above issues into the relevant business context, asking about their impact on the TV marketplace. To the extent that more devices are able to copy TV programs and allow viewers to have control over where, how, and when they watch them, what impact will that have on the economics of the video programming industry? To the extent that advertising is avoided through such technologies, what alternative business models can subsidize the creation of content? And to the extent that free “over-the-air” TV becomes free “over-the-Internet” TV, what impact will that have?