Once Again: DVRs Not Killing TV, But Helping It

from the think-this-through-a-bit dept

It's becoming almost comical how often this happens: a new technology comes along for consuming/watching/listening/distributing some sort of entertainment content, and the industry freaks out. The technology is going to destroy the industry, and laws must be put in place, royalties must be paid, technology must be crippled, etc. And yet... the impending doomsday scenario never shows up. The player piano did not kill the sheet music market. The gramophone did not kill live concerts. The VCR did not kill the movie industry. And, here we are, with TV folks finally realizing that the DVR is not killing TV, but actually helping it. Basically, lots of people still watch ads, even if they're watching a time-delayed program. What's funny is that throughout the article you have execs insisting that this was a shock to everyone and no one could have predicted it. Except, of course, we wrote about the same basic thing three and a half years ago. But no one listens to us.

The article doesn't even mention the biggest benefit to DVRs -- even beyond the fact that people watching them still watch commercials: that it allows people to become more connected to certain shows, since they're less likely to ever miss an episode. That makes them more likely to watch those shows regularly (with or without the commercials). If someone can't keep up otherwise, they'll just let the show go entirely.

The other amusing finding in the article is that NBC's attempt to "DVR-proof" itself by moving Jay Leno to 10pm (on the theory that more people would watch it live when they couldn't fast forward through the ads) has totally backfired. That's because it also means that if people miss the show, they don't go back and watch it days later (who wants to watch stale jokes?) -- so fewer ads get watched in the long run (compared to a show that would be recorded and watched later). Oops. In the meantime, can we go back to those TV execs who were threatening to sue TiVo just a few years ago, and ask for an apology for wasting everyone's time?

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Public Knowledge Points Out MPAA's Lies On Why It Wants To Break Your TV

from the nice-work dept

For quite some time now, the MPAA has been asking the FCC for permission to break your TV, so you won't be able to record certain movies shown on TV. Specifically, it wants to be allowed to use something called "Selectable Output Control" to tell DVRs that they can't record a show. It's basically the whole "broadcast flag" concept all over again. The MPAA's argument for why it needs this makes no sense at all. It basically makes two arguments, neither of which are true. The first is that they need this in order to be able to put movies on TV earlier. This is not true. There's nothing stopping the studios from putting movies on TV earlier, other than a misguided fear that people will "pirate them." And that's the second problem: even the industry admits that the movies they'd release on TV are already pirated and available on file sharing networks, so it's not like having this would stop that. The movies will still get out there. SOC won't stop piracy at all -- but it will piss off a ton of people who bought a DVR expecting to be able to record what they want to watch.

Consumer rights group Public Knowledge, thankfully, has now sent a letterexplaining all of this to the FCC:

"The MPAA has submitted no proof that grant of the waiver will serve the public interest at all. To the contrary, what proof exists in the record shows that the 'problem' of a longer window for release of movies to MVPDs than for release on DVDs is a business decision made by MPAA's members. Rather than shed crocodile tears for the poor shut-ins and busy parents who must either subscribe to NETFLIX to get the earlier window or wait a whole thirty days, MPAA's members could simply negotiate a shorter release window."

Hopefully the FCC listens.

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Cable Lobbyists Side With MPAA On Getting Permission To Break Your TV

from the not-really-a-surprise dept

As Hollywood keeps asking for permission from the FCC to break your TV with Selectable Output Control, it's picked up an unsurprising ally. Cable companies. NCTA, the lobbying group that represents the cable industry has come out in favor of the request, claiming that it will let them offer movies earlier. This is a myth that they want regulators to believe. The MPAA and cable companies could offer up movies whenever they want. They just don't want people to record them, because they want to introduce yet another annoying window. So, they declare that they need to break your TV and DVR from recording. Hopefully, the FCC knows better than to break TVs and piss off so many people just because Hollywood is upset some people will want to record movies.

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Hollywood Asks FCC For Permission To Break Your DVR Again

from the because-pissing-off-consumers-is-always-a-good-strategy dept

Every few months for the past year and a half or so, the MPAA has basically begged the FCC to let it make use of "selectable output control" on televisions to block DVRs from recording stuff shown on TV. The MPAA claims this is necessary to release certain movies on TV, but that's hogwash. Rather than focusing on what consumers want, the movie studios are simply trying to add in yet another "window" to try to squeeze more money out of people. And, of course, like any DRM system, it won't do a damn thing to stop file sharing of the content (all anyone needs is one copy, and by the time any movie is broadcast on TV, it's too late, the content is out there). All this would do is piss off legitimate viewers, who are pissed off because their TiVos didn't record some movie, despite it being on TV.

In the MPAA's most recent attempt, it's back to begging the FCC, but Matthew Lasar notes that the MPAA is finally admitting that if it gets its way, it may actually require some people to buy new equipment. So, not only will the plan functionally break lots of DVRs by not letting them do the one thing they're designed to do (record what's on TV), but they may break other parts of the process as well, such that people will need to buy new equipment.

And all for what? It won't stop or even slow down file sharing. But it will piss off a lot of people. The MPAA insists that it physically cannot release movies on TV prior to its DVD release unless it gets this DRM enabled. But that's ridiculous. If the studios wanted to they could absolutely release the movies for TV viewing prior to the DVD release. It won't change a thing. But they really, really, really want to believe the myth that somehow file sharing magically goes away, and no legitimate customers get annoyed, when they try to lock up their content.

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Is Cablevision Caving On Remote DVR?

from the hopefully-not... dept

One of the more important copyright lawsuit decisions was last years appeals court ruling in the Cablevision remote DVR case, which we discussed at length at the time. Cablevision built a remote DVR system. It was almost exactly like a TiVo, except that the device sat in a Cablevision datacenter, rather than next to your television. Functionally, it was no different. It really was just the length of the wire and where the box sat. Now, using a DVR in your home to record TV is perfectly legal. But the TV networks hate that, even though DVRs may actually have helped the TV industry by making it easier for people to watch their favorite shows (no one ever said they were good at figuring out the big picture). So they sued Cablevision, claiming that because the box sat on Cablevision's property, it was no longer legal and now it was copyright infringement.

The networks love to set up absolutely ridiculous explanations like saying that Cablevision is like the person who sets up a gun to go off when a door opens, so it's not the person who opens the door who commits the murder, but the person who set it up. Except... that makes no sense. Murder is illegal. Recording a TV show for personal use is not. A more accurate analogy would be like setting up a pillow to fall on someone when you open the door. That's not illegal for either the person who opened the door, or the person who set it up... because the action (falling pillow/recording a show for personal use) is perfectly legal. But the networks want to ignore this, and tried to twist copyright law by saying that because Cablevision's remote DVR creates a buffer version for a fraction of a second, it's making a copy, and thus violating copyright law. Seriously.

While a district court bought the argument, the appeals court (thankfully) pointed out how ridiculous this interpretation of the law was, and said the device is legal. The networks are now appealing to the Supreme Court, and the court has asked the Obama administration for input. I know there's been massive lobbying from a lot of different parties trying to get the administration up to speed on the detailed issues, and hopefully the important points get across. While this may seem like a trivial issue, it could impact nearly every online service, that suddenly becomes liable for making a "buffer" copy on its own servers based on something you do on your computer. Lots of "cloud" computing services could suddenly face massive copyright liabilities.

Still... while we wait for the Supreme Court to go one way or the other with this, it appears that Cablevision has been negotiating a compromise on the device, which (as Broadband Reports notes) probably means making things a lot worse for consumers (funny how that works). Once again, we'd have a scenario where content companies are killing off innovation because they're unable to adapt themselves -- and that's a really sad outcome. However, it might also lead to an end of the lawsuit, which could leave the appeals court ruling standing (which would be a good thing, rather than risk a Supreme Court overturn).

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Supreme Court Asks Administration For Its Thoughts On Cablevision Remote DVR And Copyright

from the but...-which-administration? dept

There was a tremendously important copyright ruling in August of last year, concerning whether or not it was copyright infringement for Cablevision to run a remote DVR for its subscribers. The whole lawsuit (and the resulting decision) shows just how screwed up copyright law has become, and how every new generation of technologies requires twisting and patching copyright laws to have them make any sense at all (this is a problem, not a feature). In this case, everyone agrees that a DVR in your own home to time shift programs is perfectly legal. Cablevision is offering the same thing, but instead of the DVR being in your home, it's hosted in a Cablevision central location somewhere. However, pretty much everything else is the same.

Not so, say the TV networks and film studios, who claim that since the devices are on Cablevision's premises, now it's suddenly a copyright violation -- even if the person at home is the one pushing the button. It defies common sense to think that the identical action (clicking a button on a remote to record or watch an earlier recorded program) with an identical result (you can watch the program at your leisure) should differ in terms of its legality based on whether or not the box holding the content is in your living room or in Cablevision's warehouse. Yet, that's exactly how the studios and networks have read copyright law -- and a lower court originally agreed. The appeals court overturned the ruling, but even reading the decision, you get the feeling that they were twisting and turning to figure out a way to have copyright law actually make sense in this scenario.

The key question, which could impact numerous other innovative content services, concerns whether or not the "fleeting" copy that's made by Cablevision in the process of delivering the content to the end user is, in fact, an unauthorized copy. The appeals court said no (correctly from a common sense standpoint), but it had to tap dance around what the law and previous cases said to reach that decision. Not surprisingly, the networks and studios have appealed to the Supreme Court, and what happens next could be quite important in determining what's legal for plenty of other online services in the future.

While the Supreme Court has not yet decided whether or not it will hear the case, it has requested input from the Solicitor General on whether or not the SG believes that Cablevision is infringing on copyrights. When I read the LA Times piece, I wasn't sure which administration they meant, but Wired makes it clear it's the incoming one, and notes the conflict since the movie studios are represented by the same firm that Tom Perrelli came from. Perrelli, of course, is an Obama nominee for the justice department (and a former lawyer for the entertainment industry). Of course, it's not clear he'd have anything to do with the brief, as it would be for the Solicitor General -- and Obama has picked Harvard Law dean Elena Kagan, who among other things has been involved with Harvard's Berkman Center, and was instrumental in recruiting Larry Lessig back to Harvard from Stanford just a few months ago. Either way, while the case seems to focus on a fairly mundane aspect of copyright law, the eventual result could be quite important.

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Cablevision Remote DVR Doesn't Infringe; Decision Shows How New Tech Twists Copyright

from the copyright-law-is-a-mess dept

As TiVo and other DVRs became increasingly popular, various cable companies realized it probably made sense to offer similar features themselves. While some started selling home DVRs, a few realized that perhaps they could short-circuit around this by offering a remote, centrally-managed DVR instead. Time Warner was one of the first to announce such a project -- but almost immediately, the other half of Time Warner (the content guys) freaked out, and Time Warner's eventual offering was neutered of any really useful feature.

Basically, the various broadcasters are still freaked out about the idea of time shifting and commercial skipping -- even though both are perfectly legal. However, that won't stop them from doing whatever possible to stop such innovations from coming to market. So, two years ago, when Cablevision also decided to create its own remote DVR solution, various TV networks sued to stop it. Even though the actual offering was almost entirely identical to a perfectly legal TiVo, a district court ruled that Cablevision's remote DVR system infringed copyrights. This, by the way, highlighted how the entertainment industry lied when it insisted it would never use copyright law to stop a new consumer electronics offering from coming to market.

The good news, today, however, is that an appeals court has reversed the decision and sent it back to the lower court -- effectively pointing out that if using a DVR at home is legal, it's difficult to see how using a DVR that is based at your cable provider is any less legal. However, if you read the full ruling, you'll get a sense of just how ridiculous copyright law has become today, and how it is not at all equipped to handle modern technology:

As you read through that decision, you'll certainly see the points that Rasmus Fleischer highlighted earlier this year, when he pointed out how silly it was to distinguish between where something is stored, and whether it's accessed locally or remotely. However, copyright law is simply not set up at all to handle this simple fact, and tries to make silly distinctions between where copies are made, how stuff is transmitted and what counts as a performance and what doesn't. That leads to all sorts of twisted logic, which resulted in the initial ruling -- and the order overturning it and sending it back to the lower court (while the right decision) is equally twisted in spots. Basically, if there's anything to get out of this ruling, it's that copyright law is simply not equipped to handle the internet.

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How Would You DVR-Proof TV Shows?

from the quick-patent-the-idea... dept

Aaron deOliveira writes in to point us to the not-particularly-surprising news that Sunday Night Football is the least DVR'd show on television, with only 1% of viewers watching it on a DVR. It's not surprising, mainly because it's a live sporting event, and there's added value in knowing what happens as soon as it happens, and being a part of the broader experience of a live sporting event. However, Aaron also posits a second idea why certain television shows might be somewhat "DVR-proof," noting that certain shows that have a cultural following have a "watercooler effect" that makes people want to watch it as soon as it airs to make sure they can take part in the conversation the next day. Effectively, those shows, whether "live" or not, have extra value in being watched live (or close to live). Of course, making sure your show is watercooler conversation material isn't always so easy.

Then again... perhaps the answer is that you shouldn't want to DVR-proof your TV shows. A separate study is finding that DVRs can actually help increase viewership of television programming, since it allows people to have the show fit their own schedule. This shouldn't actually be a surprise -- but to network execs who fear time shifting, it's an important concept to repeat.

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DirecTV Buys What's Left Of ReplayTV

from the thanks-for-the-time-shifted-memories dept

DirecTV has had something of a love-hate affair with TiVo for years, so the company must be happy that it's been able to pick up the remains of ReplayTV. Remember that ReplayTV actually pre-dated TiVo in the DVR scene -- and the two were direct competitors for a while. ReplayTV was a favorite among many in the techset for not giving in to the entertainment industry (as TiVo did). That meant that ReplayTV actually allowed features like commercial skipping and sharing recordings with other ReplayTV users. Unfortunately for ReplayTV this also meant a series of bank account-draining lawsuits forcing the company into bankruptcy followed by a firesale to consumer electronics firm D&M Holdings. Not much was heard from ReplayTV for a while. The company decided to drop the hardware habit and focus just on software -- but apparently it wasn't doing much for D&M Holdings. It's unclear what DirecTV is planning to do with what's left of ReplayTV, but the immediate speculation is that it's really just buying a patent portfolio at this point. It's a rather sad end for what had been an innovative and consumer-friendly company.

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