joegratz.net

May a company, acting as a consumer’s agent, assert the consumer’s personal fair use rights, such as time-shifting and space-shifting? It’s a question that arose in the music context, and now it arises in the video context as well. TVMyPod will sell you a video iPod loaded with DVDs of your choice. You actually have to buy the DVDs, and you have to buy them from TVMyPod, so we don’t immediately run into my.mp3.com-type liability.

I’m of two minds on this question. On one hand, I think fair use ought to be an ends-based analysis, and incidental infringing copies in service of a licensed or privileged end result should be privileged. (Yes, such a rule would resolve the Google Print case.) Because a consumer ends up with a video iPod full of his favorite DVDs whether he rips them himself or farms out the work to some corporation, perhaps it’s all fair use.

On the other hand, the personal fair use time-shifting and space-shifting privileges ought to be narrowly drawn to limit unauthorized commercial exploitation of copyrighted works. Seen one way, TVMyPod is selling a fair-use-by-proxy service, but seen another way, TVMyPod is selling you two copies of a movie when you only paid for one. Assuming there is a personal media backup privilege, TVMyPod’s product is isomorphic to Amazon including an extra unlicensed DVD-R copy with every licensed DVD it sells. And I don’t think that would fly.