Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (1999), and Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), in support of its contention that space shifting is a noncommercial personal use, and therefore a fair use. It applied the four-factor fair use test of Section 107 in support of its assertion that the sort of space shifting for which it sought an exemption is a noninfringing use. Public Knowledge further argued that the space shifting would not negatively impact the availability of, or harm the market for, copyrighted works, or contribute to piracy. Finally, Public Knowledge claimed that there were no reasonable alternatives to such space shifting.
The Register recognized that there is significant consumer interest in the proposed exemption. Proponents, however, had the burden of demonstrating that the requested use was noninfringing. Neither of the two key cases relied upon by proponents, however, addresses or informs the space shifting activities at issue.
The Register noted that she had previously explained that Diamond Multimedia—a case in which the court was called upon to interpret the Audio Home Recording Act (“AHRA”)—“did not hold that ‘space- shifting’ is fair use. It did state, in dicta, that ‘space-shifting’ of digital and analog musical recordings is a noncommercial personal use consistent with the Audio Home Recording Act.” Notably, neither Diamond Multimedia, nor the statute it interpreted, addressed motion pictures, the focus of Public Knowledge’s proposal [the Audio Home Recording act applies to musical recordings, specifically].
Turning to Sony, the Register clarified that that case involved “time-shifting,” defined by the Supreme Court as “the practice of recording a program to view it once at a later time, and thereafter erasing it.” It did not address the legality of “librarying,” i.e., the maintenance of copies of copyrighted works. Here, by contrast, librarying was among the activities contemplated by the proposed exemptions.
The Register further observed that the law does not guarantee access to copyrighted material in a user’s preferred format or technique. Indeed, copyright owners typically have the legal authority to decide whether and how to exploit new formats. The Register noted that while the law may someday evolve to accommodate some of proponents’ proposed uses, more recent cases touching upon space shifting confirm that the fair use implications of various forms of space shifting are far from settled. The Register reiterated her view that the Section 1201 rulemaking process was “not the forum in which to break new ground on the scope of fair use.” She then proceeded to assess the proposed exemptions under the traditional fair use factors.
In urging that space shifting is a fair use, Public Knowledge characterized the copying of motion pictures for use on personal devices as a “paradigmatic noncommercial personal use” that could facilitate a transformative use. It further asserted that integrating reproductions of motion pictures from DVDs into a consumer’s media management software was analogous to the integration of thumbnail images into Internet search engines found to be a transformative use in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).
The Register did not agree with this analysis. In her view, the incorporation of reproductions of motion pictures from DVDs into a consumer’s media management software is not equivalent to the provision of public search engine functionality. Rather, it is simply a means for an individual consumer to access content for the same entertainment purpose as the original work. Put another way, it does not “add[] something new, with a further purpose or different character, altering the first with new expression, meaning,” or advance criticism, comment, or any other interest enumerated in the preamble of Section 107. The Register therefore concluded that the first fair use factor did not favor a finding of fair use. The Register additionally determined that where creative works were being copied in their entirety, factors two and three also weighed against fair use, and that there was an inadequate basis in the record to conclude that the developing market for the online distribution of motion pictures would not be harmed by the proposed uses.
Finally, the Register concluded that proponents had failed to demonstrate that the use of a reasonably priced peripheral, a different device, or an online subscription service to access and play desired content did not offer a reasonable alternative to circumvention. Accordingly, the Register was not persuaded that the inability to engage in the space shifting activities described by proponents is having a substantial adverse impact on consumers’ ability to make noninfringing uses of copyrighted works.