Copyright Alliance Begs Supreme Court To Make Remote DVRs Illegal

from the we-prefer-our-screwed-up-copyright-laws dept

Fri, Nov 7th 2008 10:25am — Mike Masnick

You may recall that the Copyright Alliance is a group that is basically the personal vehicle of Patrick Ross, a copyright maximalist, who has been known to twist copyright law to ridiculous extremes on a regular basis. He's the guy who has claimed that fair use harms innovation, that government-backed monopolies in copyright represent a free market and any attempt to actually free up the market and remove government backed monopolies would be unnecessary regulation that would result in market failure. Ross also sent all of the presidential candidates one of the most ridiculous surveys ever on their views on copyright, that was written in an extremely leading "and when did you stop beating your wife" style.

With such extreme and twisted views, it's no surprise that Ross has lined up a bunch of big entertainment companies to back him as he goes around trying to convince politicians that day is night and up is down when it comes to copyright -- but now he's moved on to trying to convince the Supreme Court as well. As you may recall, back in August there was an extremely important Appeals Court ruling that noted that Cablevision's remote DVR setup did not infringe on copyrights. The ruling pointed out the rather obvious troubles that would occur if we interpreted copyright laws the way copyright holders wanted to. It's clear that DVRs, like TiVo, are perfectly legal in the home. Time shifting shows has been found, quite clearly, to be legal. Cablevision's remote DVR is effectively the same exact thing. The only difference is that the DVR is stored at Cablevision data center, rather than at someone's home. The ruling, quite clearly, demonstrated how twisted copyright law has become, as it is patched up each time some new technology comes along.

The importance of this ruling cannot be understated, however, as it will enable many important online services that will be tremendously useful. Needless to say, copyright maximalists in the entertainment industry don't like that. They prefer the way things used to be, and want the law to force the market never to change. So, before the Supreme Court has even decided whether or not to hear the appeal on the case, Ross's Copyright Alliance has already begged the Supreme Court to overturn the ruling -- the first time the Alliance has become involved in any lawsuit. The amicus brief itself, basically uses Ross's typical logic: copyright is good, therefore, making companies pay multiple times for different types of licenses to use content in more ways must be even better!

Hopefully, the court recognizes the logical fallacies in the filing. Preventing this service will not help anyone. The entertainment industry that Ross claims to represent thinks that this will get companies like Cablevision to pay them yet again for content it already licensed. But, the reality is that they'll just move on. People will instead keep buying TiVos or home DVRs, and the potential for truly new and unique services that make the entertainment company's content even more valuable will be greatly diminished. Ross and the content companies falsely believe that the old model is the best, and that content should be paid for again and again, every time it's accessed. Basic economics tells you that this is wrong, and that protectionist policies -- such as what Ross champions -- only shrinks markets and hurts just about everyone.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, copyright alliance, patrick ross, remote dvrs, supreme court
Companies: cablevision

16 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

pegr, 7 Nov 2008 @ 10:59am

Remote DVR?
Or after-the-fact video archive? What's to keep me, assuming I'm a Comcast remote DVR user, from recording "everything"? I'd assume Comcast really isn't keeping one unique recording for every Comcast DVR user that "records" a show. It must be recording everything, then simply allowing each user to watch the recorded content on demand. The requirement for having users indicate a desire to watch the recording before it actually happens is an artificial restriction to make the whole system seem "Just Like TiVo! (tm)", and hence, legal.

So really, is it time-shifting or maintaining an archival library of content maintained for subscribers? Can I watch a show that's already aired without having to set it to "record" beforehand? And is archiving content for subscribers fair use? I'm a subscriber, so I'm legally entitled to use the content for personal use, right?
[ link to this | view in thread ]
bob, 7 Nov 2008 @ 11:09am

it would seem to me ...
It would seem to me the days of making money purely from content distribution are numbered. Now that we have a global communications network making anyone a content distributor, traditional networks are going to have to figure out a new money making strategy. It's only going to pay to be the point of origin for any given piece of content.
[ link to this | view in thread ]
Yosi, 7 Nov 2008 @ 11:10am

Mike is right, but service have nothing common with DVR
This service have nothing to do with DVR, as previous commenter pointed. It is effectively a video library, since nothing is actually "recorded", just some pointers set in database to already existing content.
[ link to this | view in thread ]
John Doe, 7 Nov 2008 @ 11:48am

The real problem here is the speed differential between technological advancement and the law. Congress and the courts move at a snails pace where technology advances rapidly. I don't see this gap closing much less narrowing any time soon.
[ link to this | view in thread ]
Anonymous Coward, 7 Nov 2008 @ 11:52am

Finite bandwidth resources of a cable system
Mike,
It's difficult to follow the point your trying to make, be it business, technology or policy, so I will just provide some observations to the DVR hyperbole.

It seems that this is a Business problem more than a technology problem. TiVo owns a swath of patents, and it seems like the cableco didn't want to license.

A decade ago, this stage was set- I remember TiVo looking for investors on late night infomercials, and was awestruck with how it was going to change the industry. But I also prophesied something else-- How many companies TiVo went to within the entertainment and broadcasting industries before they had to start making the pitch for investors on late night TV.

It helped to generate some theories about how the concept of decentralized video would re-create the industry and create new opportunities.

When we dive into remote DVR, from a technical standpoint, many questions come to the surface: How many simultaneous DVR streams can be pushed through a cable head end? A couple thousand? Does that mean there's only the equivalent of a couple thousand simultaneous TV watchers on a node? If there's an average of 3 TVs in a house, does that mean peak usage will allow for only 700 real-time residences on a node?

Remote DVR Concept accomplishes similar functionality in the near term, but should the service take off, customers may start receiving a "Buffering" message onscreen, or only being able to view their show in Standard Def, (not HD, due to bandwidth consumption of HD programming), or receipt of content occurring during off-peak times. Some concessions would have to be made so the company can service all customers on that node, which deviates from the original functionality.

So yes, it doesn't violate patents, but it presents new technical challenges, which may lead to the focus of new Government Policy regarding Copyright and patent (I'm taking a stab in the dark with this one.)

Consider an experiment in New York City, where Cablevision is based. The company could conceivably have a thousand subscribers in one building. So to address this, a data center may be necessary on a block-by block or even building-by-building basis, just for TV Programming. What about the lucrative cable modem business? Will that suffer bandwidth re-prioritization? In all, there's some real technological challenges to how a Remote DVR concept would scale without massive infrastructure investment, but I could be completely wrong.

But precedent has been set, and customers are demanding DVR capability, so the industry choose Plan B. The end result is dubious, especially when the operational costs could have just skyrocketed.

But in the future (think 20 years), the best system would probably be a hybird, Think something like SatTV-grade bandwidth TiVo for broadcast, and access to NetFlix over FiOS. If correct, a company like AT&T may have the best long-term strategy for the top 100 MTAs.
[ link to this | view in thread ]
Ed, 7 Nov 2008 @ 12:49pm

Erroneous Assumptions?
I think some erroneous assumptions are being made. Why not run the service like Tivo, you can only watch a show you previously requested to record. This would allow them to have one copy of any given show (for how long though?, I have stuff on my Tivo > 1 year old). This would be exactly like a DVR, and would not, IMHO, violate copyright. I suspect this is what they do.

On the other hand, maintaining a library of all shows, that anyone could access, at anytime, seems like it should violate copyright. Don't get me wrong, I am all for returning copyright law back to a sane point in history, but I can see why broadcasters would have a problem with a library approach. After all, how many people own 200 Tivos, for simultaneous recording?
[ link to this | view in thread ]
Mike C, 7 Nov 2008 @ 12:59pm

Angry?
I just want to say I have nothing against anything you're saying, and think it is all completely correct. I am a passive reader of techdirt and find it highly informative, you just always seem so angry :) I guess it's just that your passionate, and I find it hard to get so passionate about copyright laws. Props to you though!
[ link to this | view in thread ]
Anonymous Coward, 7 Nov 2008 @ 1:57pm

Somehow I have never equated the filing of an amicus brief with "begging". The copyright holders have filed a petition for certiorari with the Supreme Court, and the Copyright Alliance has filed an amicus brief in support of the copyright holders' petition. There is nothing about the filing of the amicus that is in any way anything other than ordinary practice before the Supreme Court.
[ link to this | view in thread ]
Anonymous Coward, 7 Nov 2008 @ 2:11pm

Nanny state
I say we go UK on copyright holders and not let them release any works because they might get stolen. We must protect their works at all costs!
[ link to this | view in thread ]
Anonymous Coward, 7 Nov 2008 @ 2:52pm

Re: Finite bandwidth resources of a cable system
Wow. That is a lot of text that has absolutely nothing in regards to the LEGALITY of the situation.

This is analogous to recording a show on your VCR and watching it later. This means you get to fast forward commercials if you so choose. This means everything that is ever put on TV should be recordable.

Otherwise, when certain familiar companies were trying to prevent a RECORD option on the VCR, they would of succeeded.

Ipso Facto, QED, owned, etc, etc
[ link to this | view in thread ]
Iggy, 7 Nov 2008 @ 3:04pm

Re: Remote DVR?
pegr - good point. You're suggesting that "Remote DVR" is just a personalized front end to "On Demand" content. I bet you're right, that would make a lot of sense.
[ link to this | view in thread ]
Iggy, 7 Nov 2008 @ 3:29pm

This is nonsense.
I can buy a DVR and place it in my family room. Or I can place it in any room I want. If I wanted to, I could buy the same DVR, install it in a server room in another location, and use a network to transfer the content to it instead of a Monster cable. My use of the content is exactly the same. The ONLY thing that has changed is the connection configuration of my DVR. Does copyright law apply to component configuration? I think not. it only applies to content use.

So now, to reduce costs, I'm going to use a server instead of a brand-name DVR to store my content. Nothing else is being changed. Does copyright law specify allowable hardware configurations? No, it doesn't.

As the next step, my service provider is going to lower his costs by creating a library of files versus a collection of individual files. This is invisible to me. It does not in any way change my service agreement with the content provider and/or copyright owners. It is simply another hardware optimization.

Bottom line: this whole thing is a farce. The copyright owner and content distributors establish a relationship with me. They charge me for services. As long as I don't violate our agreement regarding USE of that content, it is none of their business how my infrastructure is configured.

Sigh.
[ link to this | view in thread ]
James Moore, 7 Nov 2008 @ 3:38pm

Re: Erroneous Assumptions?
"After all, how many people own 200 Tivos, for simultaneous recording?"

Don't assume that technology will stand still. Simultaneous recording of multiple streams isn't science fiction. Probably better to assume that everyone will have a TiVo-like thing capable of recording hundreds of simultaneous channels in N years, where N isn't all that large.
[ link to this | view in thread ]
rumpole, 7 Nov 2008 @ 3:55pm

Whoa. This isn't a time shifting case, and the issues are very, very different. In fact, the VCR issue is off the table. The issues in this case are whether buffer copies are in fact "copies" under the act. If they're not, then there's a whole bunch of audio streaming, for example, that is currently licensed that will not be in the future.

The second issue involves the volitional element under a case that's been applied to ISPs to shield them from direct liability, but no one else.

There is a big (in fact HUGE) difference between a user making a personal use copy and someone else claiming that they're their "agent" and thereby getting out from under direct liability. By neither acknowledging that difference nor explaining it away you're publishing little more than polemic.
[ link to this | view in thread ]
Anonymous Coward, 10 Nov 2008 @ 1:43pm

Re: Remote DVR?
>I'd assume Comcast really isn't keeping one unique recording for every Comcast DVR user that "records" a show.

Assuming = fail.

Even if Comcast didn't maintain separate copies per user... would they be toast if the courts REQUIRED them to? Does this even matter?

It's clear the user has a right to timeshift.
It's clear that we're talking about cable-provided DVRs with storage.
Arguing over WHERE the storage is located is nitpicking. People need to get to the point.

If "I" record something then by default only I have access. Is this still true if I'm using a virtual disk at the cable company? Yes.

What cable-provided virtual storage DOES is it prevents a whole lot of electronics waste from landfills due to upgrades and obsolescence.

The Copyright doesn't care about this common sense detail. They want a ruling against virtual DVR storage for the express purpose of SELLING BACK this 'right' to the cable company... common sense, Constitution, and planet all be damned.
[ link to this | view in thread ]
Anonymous Coward, 10 Nov 2008 @ 1:46pm

Re: Mike is right, but service have nothing common with DVR
>It is effectively a video library, since nothing is actually "recorded", just some pointers set in database to already existing content.

That needs to be proven.

If the DVR service were live-or-die based on your assumption, it's STILL cheaper and practical to just do things the hard way and offer 1 recording per user.

Pooled storage has a multiplier effect, just like pooled bandwidth does. There's a wall between users and that's all that matters.
[ link to this | view in thread ]