Two Faces of Fair Use

I’ve been following the Dish Hopper lawsuit closely; in fact, it’s next week’s topic in my copyright seminar. If the name sounds familiar, that’s because the Hopper is the DVR that was judged “best in show” at the Consumer Electronics Show by CNET until its corporate parent, CBS, forced CNET to redo the vote with the Hopper excluded. It’s capable of time-shifting an entire week’s worth of prime-time network programming, and has a one-button commercial-skipping feature.

The district court’s opinion dealt with two extremely important fair use issues: is it still fair use to tape TV with a DVR rather than with a VCR, and is it fair use to analyze copyrighted works to extract uncopyrightable facts? That opinion is now on appeal, and I’ve joined an amicus brief explaining why the answer to both of these questions should be “yes.” The lead author was Berkeley’s Jason Schultz, with whom I worked at the EFF almost a decade ago. His writing is as punchy as ever; the brief is a good statement of what’s at stake in today’s fair use cases.