In a recent post, Jason used the term “format-shifting.” I’d never come across that term before, but it’s a good one. I interpreted it as analogous to time-shifting — Jason, am I correct in that?

So it occurred to me to look at the Sony v. Universal Studios case, which ruled that time-shifting is fair use, to see just how analogous these terms really are.

The text of the Sony v. Universal Studios is long & I didn’t read it in its entirety. I admit to not having the time or the inclination to read it in its entirety, or the legal expertise to fully understand it if I did. I just skimmed it & then searched for “time-shifting.” Here’s how time-shifting is defined in one place:

…the practice of recording a program to view it once at a later time, and thereafter erasing it. Time-shifting enables viewers to see programs they otherwise would miss because they are not at home, are occupied with other tasks, or are viewing a program on another station at the time of a broadcast that they desire to watch. Both surveys also showed, however, that a substantial number of interviewees had accumulated libraries of tapes.

In the sense of recording to use it later, format-shifting is analogous. It’s also analogous in the problematic area of not then erasing it after a single use, but accumulating a library.

A third possibly analogous area is that it is is acknowledged that time-shifting “enlarges the television viewing audience.” Surely this is also the case if you, for example, rip a CD and share those files with friends, or the like. That enlarges the music listening audience. But is that what people do? Intuitively I’d think yes, but that’s an empirical question: when people rip CDs, what percentage of the time do they share the files & what percentage of the time do they just load the files onto their own iPod and nothing else? Does any data exist on this? Ironically, it seems to me that by the logic of time-shifting, music copyright owners should object more to users not sharing than to users sharing, since sharing enlarges the listening audience & not sharing doesn’t.

There are 2 major restrictions on time-shifting:

  1. …time-shifting for private home use must be characterized as a noncommercial, nonprofit activity.
  2. …time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge…

#1 is analogous in format-shifting: you can give it away, you just can’t sell it. Again, copyright owners shouldn’t object to users freely sharing, since they could be charging for it instead? #2 is more problematic. If I buy a CD, I haven’t been been invited to use it free of charge. On the other hand, if I take that same CD out of the library, does that constitute an invitation to use it free of charge? On the other hand, you could make the argument that my use of the library isn’t really free of charge either, since I’m funding it with my taxes.

The last point in the discussion of time-shifting that I think is particularly interesting is this: copyright owners

…have no right to prevent other copyright holders from authorizing [time-shifting] for their programs…

In other words, a technology cannot be restricted just because it potentially enables copyright violation; you may not allow time-shifting but if I do I should not be prevented from doing so. Format-swapping is also analogous here: if I want people to rip my CDs, I should be allowed to allow that, even if you don’t want anyone ripping yours.

I’m sure this is a horribly simplistic take on copyright, for any reader who actually knows more about this topic than I, which is likely to be a great many people. But like I said, I was just thinking aloud, as it were, about how analogous time-shifting & format-shifting are. Answer: very.