Hastings Law Journal


In Japan, one may now purchase a VCR that can distinguish between the programming and the advertisements, with the result that commercials are not recorded. The threat to television advertising there has led to a standoff between manufacturers of such VCRs and the Tokyo Broadcasting System. Such a machine is not currently available in the United States, but its development is anticipated, and its arrival is being planned for by advertisers.

This Note assumes that VCRs with "automatic commercial avoidance" technology will be introduced in the United States and examines their legal significance in light of policies in the Federal Communications Act that favor the broadcaster's proprietary right to market its signal for profit over the viewer's interest in freely capturing signals from the air. The Note also considers such VCRs with regard to the Supreme Court's analysis in the Universal City Studios case, which held that home taping for subsequent viewing constitutes a fair use because the plaintiff copyright holders had not demonstrated adequate harm. The author argues that the increased ease and popularity of home taping, combined with automatic commercial avoidance, would cause significantly more harm to the copyright holder than was the case at the time Universal City Studios was decided. Therefore, home taping utilizing a VCR with automatic commercial avoidance technology would not constitute a fair use, and sale of such a machine could be enjoined. Additionally, the author concludes that the legislative preference for broadcasters' proprietary rights expressed in the Federal Communications Act may justify the prohibition of VCRs with automatic commercial avoidance.

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