Digital Video Recorders, Advertisement Avoidance, And Fair Use‪.‬

I. INTRODUCTION The CEO of TiVo, the company that invented the digital video recorder ("DVR"), recently warned a group of advertisers that "what happened to the music business" is bound to happen to the television industry due to rising "television commercial avoidance and the growing epidemic of fast forwarding thru [sic] ads." (1) Recent data on DVR adoption and usage supports this prediction. DVR users record 30% of their total television viewing to watch at a later time, a practice known as time-shifting. (2) When viewing these recorded programs, users watch approximately 40% of the commercials, presumably fast-forwarding through the remaining 60%. (3) Additionally, DVR penetration is rising rapidly, growing from under 5% of households in January 2006 to over 30% by March 2009. (4) The result is declining live television ratings and advertising revenue. (5) Due to this increased DVR usage, the television industry faces an "advertisement avoidance crisis" that threatens to destroy the decades-old revenue model of advertiser-supported television.