Can Cable Companies Store Shows For Us? 165
NewYorkCountryLawyer writes "Last August I reported that the US Court of Appeals for the 2nd Circuit had defeated the MPAA's attempt to label as copyright infringement a cable operator's storing video for later reuse at the request of its subscribers, in Cartoon Networks v. CSC Holdings. The MPAA has petitioned the US Supreme Court to review that holding. According to a recent interview with Gigi Sohn of Public Knowledge, the High Court has not yet decided whether to grant the MPAA's petition seeking review. What I found odd about the 2nd Circuit decision (PDF) is that (a) although 'fair use' was the most logical defense to be employed in view of the Supreme Court's holding in SONY Betamax, upholding a VCR's 'time shifting' of a broadcast television show as a 'fair use,' the defendant in Cartoon Networks has stipulated to waive 'fair use,' and (b) although the easier legal theory for plaintiff to prove would have been secondary, rather than primary, copyright infringement (i.e. Cablevision's encouraging and inducing its customers to make unauthorized copies), the MPAA has stipulated to waive that line of attack. I.e. neither plaintiffs nor defendants seized the 'low hanging fruit.' In her interview, Ms. Sohn discusses the fair use defense, but I'm not sure why she does, since as I recall the defendant has waived it."
Targets that can fight back (Score:5, Insightful)
Fair use (Score:4, Insightful)
With the Supremes taking so few cases, it makes sense to give them an extremely narrow legal issue, on a platter, freed, as much as possible, of its factual trappings.
MPAA incentive to limit access (Score:2, Insightful)
The MPAA has every intention of limiting your access so it can sell you it bit by bit. They want to sell you a different copy for each medium you use it in. If they can sell you more than one copy in a given medium (standard edition and then 2 years later director's cut), they certainly will. They want you to pay for a movie ticket, buy it on Blu-Ray, pay for DRM protected copy for your laptop and then pay for higher resolution DRM protected copy for your next laptop. Of course different countries will have different price scales.
It's not just piracy that threatens this, it's DRM free content. The reason they don't want the cable company to buffer content is that you should pay extra for that, preferably in a Blu-Ray box set. And then again for a DRM-protected version for portable use.
Could it be they want a definitive ruling? (Score:4, Insightful)
Could it be that the reason both parties have waived their most obvious arguments is that they really want to the court to address the deeper questions and create a landmark ruling? In the long run such a ruling would reduce the amount of litigation surrounding (re)distribution of movies & music.
Could this, in fact, be a cry for help? Could both parties be saying, "Please, your Honor, give us a ruling that makes sense! Let us understand where the limits of copyright law really are!"
Nah. Sounds too logical to be true.
This isn't Personal USE, this is redistribution. (Score:4, Insightful)
When I save something on my DVR, that is for personal use. It is by me for me.
When I get something from the cable company, that is distribution. If that is not distributed in the manner as the owner of the copyright desires, that is a copyright violation on face. Copyright is ABOUT distribution.
There are grey areas, like hold and release, 5 second delay, in-between servers, but this use of a private fair-use technology as a distribution technology, is definitely worth suing over.
It changes the value that the audience aggregator is charging the advertiser. The audience aggregator is unable to charge for another ad, and is unable to control the distribution method. When Adult Swim is on, they want you to watch Adult Swim. GO SHAKE!
Re:MPAA incentive to limit access (Score:4, Insightful)
Optimist. They want Blu-Ray and all physical media to become obsolete, so they can implement a strong DRM regime where you have to pay for the movie every 10 times you view it, or every 6 months just to keep it around (or both).
Re:Fair use (Score:5, Insightful)
Maybe I don't understand the service in question, but this is an on-demand service right?
Doesn't such a service actually decrease the need for the end-user to make a copy? i.e., with traditional scheduled programming I set my DVR to make a copy, but with on-demand scheduling I don't have to because I can just have it streamed to me when I actually want to watch it?
I guess I'm having trouble seeing the secondary infringement angle.
The fair use angle, on the other hand... I can see where providing a commercial service whereby I time-shift material on my customers' behalf might not get the same treatment as a costumer time-shifting for personal use; maybe the cable company just didn't want to go there?
Re:This is why I have ~10 VCRs (Score:4, Insightful)
I don't know if you were joking or not but...
You could have used a analog capture card instead and encoded it to whatever format you wanted, and even done inverse telecine and deinterlacing to make it look really nice.
I guess with a nickname like yours, you are nostalgic for the 80s.
Re:To reduce this to simpler terms......... (Score:3, Insightful)
The more you allow others to do for you, the more you let others control you.
You already surrendered by using the cable company's DVR in the first place.
Just think of your DVR as an abstraction layer--since they already know *what* you're storing, whether it's stored locally or on a remote system, it matters not.
VOD vs DVR (Score:5, Insightful)
The situation is really pretty simple and depends entirely on contract law.
The cableco's sign one contract to redistribute live TV. They sign another contract (possibly involving another hefty fee) to redistribute video on demand, VOD. The revenue streams are separate starting at the contract and flowing all the way through the business to the customer's bill which has separate line items for HBO and HBO-On-Demand.
Obviously, the cableco's should want to scrap the extra contract and extra cost of the VOD contract and just give us all "virtual DVRs". Or perhaps they could scrap the VOD contract, and continue to charge the customers the same amount of money for their "DVR with infinite rewind", keeping the money that would have gone to the channel for VOD. Or perhaps, since VOD is kind of a pain, the cablecos would get to embrace and extinguish the entire product all at once by changing the numerous VOD relationships into an insourced DVR product which can later be scrapped.
Also its a control issue. The channels want to control their product. Just because the SciFi channel used to broadcast science fiction a long time ago, does not mean they want to now. Now, they want to broadcast ghost hunters, wrestling, and horror flicks. They would not appreciate a cablecos "DVR with infinite rewind" messing up their current oh so carefully designed marketing message that they like the name, but no longer have any interest in scifi content.
Finally its liability. If CBS had the superbowel halftime on some cableco's virtual-infinite-rewind-DVR, who is liable when its played back over and over? CBS because the cableco didn't delete it? The cableco because they're a common carrier? The local franchise because they are easier to sue? If a channel screwed up and transmitted something they didn't pay for, can they force the big corporate virtual DVRs to delete it? Or if they screwed up their perfect record of bland mediocrity and accidentally broadcast something that generated complaints, could they force the big corporate virtual DVRs to delete it to limit complaints?
It's time to RENAME copyright (Score:1, Insightful)
All use of digital media involves temporary buffer copies. Copies, thus the involvement of copyright law. But these copies have no impact on the purpose of copyright. Where those copies are stored, is equally irrelevant.
Implementation of "promoting the progress of arts" that should no longer be concerned with copies. It should concentrate on preserving a monopoly for that work in the marketplace. Quit trying to fuck around with the playback technologies du juor; in the context of the goal none of that stuff matters at all. Yo, Congress, get on this.
Re:Fair use (Score:2, Insightful)
Comment removed (Score:3, Insightful)
Follow the money! (Score:3, Insightful)
This is probably not about fair use, or rights, or anything mundane. It's about the money.
Which is, admittedly, a facile argument. But, if these on-demand services are to thrive, they need to be more universal, and that means essentially storing all the content the cable cos can possibly identify. And that means the providers will have to sign off on viewers being able to time-shift, repeat, and edit (skip commercials). This is about money. Does the SciFi Channel get more $ per subscriber when it allows on-demand delivery? Should it? Will I pay more?
And though this is not thought of often, the cable cos don't want us to have hard-drive-based DVRs. These things are going to become a nightmare support issue when the hard drives start failing, like every few years. And new software causes more problems, stranding weeks' worth of shows I wanted to watch, and encouraging me to bitch out my cable co rep for losing my shows... And new features make them obsolete by the many thousands. A set-top without a hard drive has many advantages. Spinning things are not desireable.
This is all about the money, and maybe both sides think they have a good case to compel the other side to give in. We'll see, but in the end one thing is certain.
We pay.
Apparently "On Demand" isn't protected (Score:4, Insightful)
Apparently the "On Demand" part of cable services isn't protected at this point in time. That actually makes sense, as it's a "new" service being offered by the cable cos that bypasses the whole idea of prime-time scheduling.
I don't blame them for skipping the time shifting argument. Prior cases against web companies haven't succeeded in using that argument to justify their provisioning of torrent caps of TV shows for members to view.
I believe the *AA wants to ensure they get another licensing slice for allowing VOD. I doubt they're actually foolish enough to want to make the practice illegal, so they're not using the "big guns" that might force the cable cos to drop the service.
Personally I still think direct subscription to shows over the internet is the way the future will go. Rather than subscribing to a "channel", you'll subscribe to the particular show you want. Channels will only exist in the future if they provide a heavily discounted bundle of shows to be watched on demand.
Let's face it -- with PVRs, VOD, and torrents, we're already half way there. They just need to figure out how to monetize it, and standardize the streaming services so they can be built into TVs.
I'm surprised at the programmers here! (Score:5, Insightful)
Re:This isn't Personal USE, this is redistribution (Score:3, Insightful)
You can morph any innocuous action (politely telling somebody you can't talk to them right now) by small steps (being rude, being angry and insulting, making threats if they don't leave you alone) to stuff that's totally illegal (using force to make them go away, using deadly force...) and downright heinous (setting off a bomb that kills them and a lot of other people). It can be hard to define precisely the boundaries between legal, illegal, really illegal, and crimes against humanity — hence all the legal hairsplitting. But they do exist.
Which is not to defend the legal abuses that owners of IP have indulged in. But that comes from legal principles based on assumptions about the technology that no longer apply. (Plus, of course, their extreme influence over the people who make and interpret the law involved.) But there's no "slippery slope" situation here.
Re:I'm surprised at the programmers here! (Score:3, Insightful)
The law lags so far behind software development, I don't consider any of it relevant.
Well you'd find it highly relevant if you got skewered, like the defendant in MAI, because the 9th Circuit judges just didn't understand. You should be aware of the fact, and appreciate the fact, that the 2nd Circuit judges in the Cartoon Networks case took the time to be a little better informed and make a little bit more realistic assessment. Like it or not, the law is relevant to all of our lives, so we all have an interest in helping it to become as rational and fair as possible. (Unlike the MPAA and RIAA whose apparent goal in life these days is to distort the law, and make it as irrational and unfair as possible.).