Academic journal article Northwestern University Law Review

Free Content's Future: Advertising, Technology, and Copyright

Academic journal article Northwestern University Law Review

Free Content's Future: Advertising, Technology, and Copyright

Article excerpt

I. INTRODUCTION

Advertising can be an important revenue source for content providers. To be sure, other revenue sources abound, but advertising, because it typically generates free or cheap content that reaches a wide audience, plays a more socially important role than most. Recent technological innovations threaten the role of advertisement-supported content. The Internet, video on demand, and advanced video recording devices have ushered in an age of interactivity with content. Such interactivity allows unprecedented manipulation of content.1 Consumers can delete the very advertisements that make possible the content they enjoy. Content providers can undermine the ad campaigns of other content providers by passing along content to consumers with ads stripped out or replaced by other ads.

Copyright law gives copyright owners the right to control the public display and performance of their transmitted works.2 It is therefore illegal for one Web site to freely display news stories that another Web site owns and offers to its users for a charge.3 If this is so, then deletion of advertisements, now a simple matter for the holders of certain technologies, could similarly be viewed as infringing a copyright owner's rights. Courts have not directly addressed this contention. The future availability of free, advertisement-supported content may be at stake.

A vocal contingent of Internet users desires to purge the Web of advertisements. The widespread nature of this sentiment is perhaps best expressed by one Internet user, an Arizona Court of Appeals judge, who wrote an advice column instructing lawyers how to zap pop-up Web advertisemerits.4 While consumers, as opposed to commercial entities, ought to have some autonomy in how they consume content,5 that autonomy threatens the health and existence of free content. This Comment is a reminder of the familiar adage that "there ain't no such thing as a free lunch."6

Part II of this Comment introduces the reader to the array of incentives that spur content creation, argues that free, advertisement-supported content plays a valuable role in our society, and notes that advertisement-supported content faces a questionable future due to the proliferation of advertisement-deletion technologies in several media.

Part III argues that copyright law is a potential guardian of advertisement-supported content. Part III.A introduces copyright law's bundle of rights. Part III.B shows how industry-specific copyright provisions related to rebroadcasts and compulsory licenses of over-the-air broadcasts protect advertisement-supported content. Part III.C argues that the public display and derivative works rights prohibit Internet content providers from leeching content off of others if the content provider would undermine the others' advertising schemes. Part III.D discusses how copyright law may require makers of devices that display content-Web browsers, VCRs, televisions, and so forth-to pass along advertising associated with content. That part looks at the Supreme Court's famous Video Tape Recorder decision, the litigation involving Replay TV, and Internet-based advertisementblocking software. Part III.E concludes the copyright discussion by shifting the focus from the behavior of commercial entities to consumers. That part suggests that copyright must balance the interest in protecting free, advertisement-supported content with consumers' countervailing interest in autonomy in controlling the way they consume content.

Finally, Part IV considers the practical difficulties that lie ahead in the continued provision of free content and offers additional legal and extralegal suggestions for how to proceed.

II. THE ROLE OF ADVERTISEMENT-SUPPORTED CONTENT

People want their MTV,7 the latest news, the daily crossword, and coverage of the big game. People acquire televisions, computers, newspapers, modems, antennae, satellites, and all other kinds of communications equipment so that they can receive the content they desire. …

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