The courts uphold "fair use" only when it doesn't harm the commercial value of the copyrighted work. At the time the suit was brought, skipping ads during playback on a clunky tape machine was hardly worth the considerable trouble. At the trial, survey data showed that only about 25 percent of recorded ads were skipped. In the face of testimony by Fred Rogers of Mister Rogers' Neighborhood on PBS, who welcomed home copying of his program, the movie studios that brought the lawsuit failed to convince the judge that VCR copying of televised movies was hurting their business.
Would indisputable evidence that DVRs facilitated ad-skipping make a difference if the Sony case were decided today? Paul Goldstein, a professor at Stanford Law School, thinks that it might. "If you were working with a clean slate, and everything was the same except for the ad-skipping rate -- that's a compelling fact that could have made a difference," he said.
Randal Picker, a law professor of the University of Chicago, pointed to the commercial availability of network programs at places like iTunes as another enormously important change to be considered by the court if a case like Sony were litigated today.
How to pay for free television is the overarching but unanswered question, Picker said. Speaking as a viewer, he said: "I want the other guy to watch advertising. But we can't all not watch."
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