And the first one now
Will later be last
For the times they are a-changin’
Written by Bob Dylan
Performed by Bob Dylan
Recorded on The Times They Are A Changin’ (Columbia, 1964)
Is it legal to rip your CD collection onto your iPod? Seem like a silly question? It isn’t. There are a few different types of shifting we’ll talk about during this lesson, all of which raise the same fundamental question: how should the law respond to the commonplace practices of time, format and space shifting.
What is Shifting?
First there’s time shifting. That means recording something for later listening or viewing. Second there’s format shifting. That means moving content from one medium or device to another. Third there’s space/place shifting. This has become a real issue as technologies now allow content hosted in one location (e.g. your home) to be used elsewhere (e.g. your laptop in a hotel room). More controversy ensues when different people start playing a role in hosting this content, like when a communications provider remotely stores your content in the cloud, and then streams it back to you on demand.
Shifting in the U.S.
Much of the law related to this debate can be traced back to one seminal case, Sony Corp. of America v. Universal City Studios, Inc., better known as the Betamax case. It is fascinating for many reasons. It epitomizes the recording industry’s typical response to new technologies, it set the early standard for secondary liability in copyright law and it underpins a possible fair use defence in all kinds of contexts. We’ll look it at again in this course, but for now, we’ll focus on the fair use analysis. Check out the full text, or skim theWikipedia entry about it, whichever you prefer. The EFF has a nice repository of info related to the case, and there’s even a full-length book about it, if you’re really interested.
The upshot of all this is that in the United States, shifting is believed to be covered as fair use under 17 USC 107, which we talked about last class. One modern incarnation of the Betamax case is Cartoon Networks, which decided companies that provide networked digital video recorders don’t infringe copyright. Commentary on that case can be found all over the web, including here and here. Also relevant to this discussion is the earlier case of UMG Recordings v. MP3.com, which involved an MP3 online locker service, kind of blurring the line between format and space shifting. Recording Industry Association v. Diamond Multimedia, 180 F.3d 1072 (9th Cir. 1999), is another important, mostly for because of the court’s remarks about the parallels between time shifting and space shifting.
Diamond Multimedia is also an important case because of the court’s interpretation of the American Audio Home Recording Act, codified as 17 U.S.C. 10. This particular “levy” scheme has been quite narrowly interpreted. That could have changed following a dispute between the RIAA’s major labels and XM satellite radio. XM argued that it was immune from liability under the AHRA because, unlike Diamond’s Rio MP3 player, satellite radio receivers recorded digital tracks from satellite transmissions (which are technically and legally different from tracks downloaded or ripped using a computer). Alas, the case settled before any clarity could be had on these issues.
This Canadian approach to shifting has been, frankly, incoherent and inconsistent from a policy perspective. To see why, we’ll look in this lesson at the private copying levy, which will probably stick around despite newly proposed legislative provisions making shifting legal. Look through Part VIII of Canada’s Copyright Act, which lays out the groundwork for what has become a 21 cent “tax” on blank CDs, and string of Copyright Board decisions applying this Part of the Copyright Act over the last 15 years. These cases often end up before the Federal Court of Appeal.
Copyright holders have sought, and are still seeking, to expand the levy to many different kinds of media and devices, especially iPods and other digital audio recorders. Though the Federal Court of Appeal held that the legislation doesn’t permit this, the Copyright Board tried to decide that it wasn’t bound by the Court’s decision. The Federal Court of Appeal quickly put the Board back in its place. But that hasn’t stopped the organization responsible for collecting the private copying levy from trying another tactic to expand the levy to new products. Because the Federal Court of Appeal defined the phrase “ordinarily used” so broadly, it took this regulatory action from the Governor-in-Council (i.e. cabinet) to stop a proposed levy on microSD cards.
Levies are actually quite common, especially in Europe. If you want to dig deeply into this topic, the following article does a good job tracing the concept back to its German origins: Katerina Gaita & Andrew F. Christie, “Principle or Compromise?: Understanding the original thinking behind statutory licence and levy schemes for private copying” (2003) Intellectual Property Research Institute of Australia Working Paper No. 04/04. To see where European levies are going, your best source is chapters 3, 5 and 6 of Bernt Hugenholtz, Lucie Guibault and Sjoerd van Geffen, “The Future of Levies in a Digital Environment” (Amsterdam: Institute for Information Law, 2003).
The Hugenholtz study relates to the overlap between digital rights management systems (which we’ll devote a whole lesson to later in the course) and private copying levies under the EUCD. I’ve personally written about similar issues in the North American context in a piece called “Locks and Levies” (2006) 81:1 Denver University Law Review 143. That article is an extension of my earlier research on levies, such as “The Role of Levies in Canada’s Digital Music Marketplace” (2005) 4:3 Canadian Journal of Law & Technology 153.
Yet another one of my articles in this area, “Copyrights, Federalism and the Constitutionality of Canada’s Private Levy” (2006) 51:4 McGill L.J. 735, considers whether the federal government exceeded its jurisdiction in enacting Canada’s levy. Unlike the Federal Court of Appeal in CPCC v. CSMA, I say there are serious unresolved questions about that issue. The old Australian levy was actually struck down as unconstitutional in the Australian Tape Manufacturers, (1993) 176 CLR 480, which led to the fair dealing reforms I referenced above.
Copyright commentator Kim Weatherall summed up the problem nicely when she wrote in a recent research paper that “Australian copyright law is an ass” for making the ordinary behaviour of millions of people illegal. The House of Lords seems to agree. In the famous case of CBS Songs Ltd v. Amstrad Consumer Electronics Plc,  AC 1013 at 1060, it was held: “Whatever the reason for home copying, the beat of Sergeant Pepper and the soaring sounds of the Miserere are more powerful than law-abiding instincts or twinges of conscience. A law which is treated with such contempt should be amended or repealed.”
Some are of the view that shifting should be a “free use” of music. Former Financial Times editor Andrew Gowers was commissioned by the UK government to study this and other IP issues, and recommended that a shifting defence (as well as a parody defence, by the way) should be introduced into British law. This is close to what’s been proposed in Canada — a new time shifting exception — in Bill C-11, which even includes a provision related to hosting on remote storage networks.