CBS Will Sue Aereo In Boston, Preferably In The Alternate Reality Where CBS Is Winning

from the keep-angry,-carry-on dept

ChurchHatesTucker points us to the latest news about Aereo, the service that has been facing endless opposition and jumping through countless legal hoops just to be able to offer a simple service that lets people watch public TV broadcasts online. Undaunted, Aereo recently announced plans to launch in Boston, which spurred an analyst to ask CBS (which is engaged in a lawsuit against Aereo in New York) how it would respond:

McClintock (CBS' exec VP of communications) sure doesn't mince words, but he does mince reality. The broadcasters are not faring well against Aereo, with the courts all apparently recognizing that the company has carefully followed the letter of the law established in the Cablevision ruling. It's bizarre that he would try to characterize the situation as an obvious win for CBS when the exact opposite is true — especially in a conversation with tech analysts and journalists. Still, points for confidence, I guess.

It didn't end there, either:

After [Verge editor Ben] Popper noted that CBS' signals were not being stolen and that the public owned the airwaves, McClintock responded: "Yet it's ok for Aereo to profit from the same public. Hmmm..."

Greenfield got in a zinger by noting the similarities between Aereo and Amazon's services. "Amazon 'makes money'" Greenfield wrote on Twitter, "on selling antennas to watch broadcast TV, and they ship to Boston."

The question of "profiting from the public" is a red herring, and not a smart one for CBS to bring up. After all, the networks profit from their public broadcasts, too. Do they plan to give back all the money they have made from selling ads on the publicly-owned airwaves for which they paid no access fee?

The fact that the airwaves are owned by the public only means what it sounds like. It means the ability to broadcast on the airwaves is permitted by the public — it does not have anything to do with how the public accesses those airwaves, or whether or not someone is making a profit. As Greenfield points out, by McClintock's logic, it would be wrong to charge money for a TV antenna.

The Twitter exchange perfectly highlights a key issue here: thanks to the vagaries of copyright law, the whole fight over Aereo (and over remote DVR) is basically a fight about the length of a wire. Selling a home TV antenna? Legal. Renting a home TV antenna to someone? Yup. Selling someone a setup that hooks their antenna into a computer and then into their network, so they can watch it on any of their devices? No problem. Renting that same setup to them? Sure thing.

But doing any of that from slightly further away? 'Illegal!' cry the networks.

Luckily, despite the networks' facade of confidence and silly threats to pull their broadcasts, the courts seem to be well aware of the ridiculousness of their argument. Given the recent rulings, it seems unlikely that a new lawsuit in Boston would gain much traction — but, of course, just the fact that the lawsuits keep on coming serves as a roadblock to Aereo's innovation. The broken analogies enforced by copyright law have resulted in an insane situation with online streaming (among other things), and the fact that the fight with Aereo has even gone this far (and shows no signs of stopping) just underscores the severity of the problem.

Filed Under: dvr, streaming
Companies: aereo, cablevision, cbs

Just How Dumb Is It For CBS To Block CNET From Giving Dish An Award?

from the count-the-ways dept

As you may or may not recall, last year, pretty much all the TV networks sued Dish Networks over a new feature it had launched, PrimeTime Any Time (PTAT), with its Autohopper technology on its DVRs. PTAT is where it would automatically record all the major networks' prime time programming and hold onto it for a bit. Autohopper would then automatically skip over the commercials. It's important to recognize that these features, on their own, have been considered legal. VCRs had auto commercial skip ages ago and DVR technology (time shifting) has been called fair use plenty of times. Given that, the lawsuits aren't going well so far.

But, in a moment of pure stupidity, some very short-sighted suits at CBS made a really silly decision. As you may or may not have heard, CES -- the massive consumer electronics show -- has been going on all this week in Las Vegas. I just got back from there myself. At the show, Dish announced another merging of some of its products, adding its Slingbox (who they bought years back) to the same basic setup. Slingbox, of course, is for "place shifting" what the DVR is for "time shifting." You hook it up to your TV and it lets you access what's playing on your TV via the internet (so, via your computer, phone or tablet). It's hardly surprising that this is where Dish was heading.

And... the early reviews and buzz were definitely strong. For example, CNET wrote a glowing review in which executive editor David Carnoy suggested it may be the best DVR out there these days. The CNET crew liked the thing so much that they nominated it for their "Best of CES" award. And... then the suits at CNET parent company CBS noticed. And suddenly they told CNET that it had to remove the Dish Hopper with Sling from consideration for the Best of CES award and that it was no longer allowed to review any Dish products. CNET editors appended the following note to their review:

Editors' note: The Dish Hopper with Sling was removed from consideration for the Best of CES 2013 awards due to active litigation involving our parent company CBS Corp. We will no longer be reviewing products manufactured by companies with which we are in litigation with respect to such product.

This is monumentally stupid, for a variety of reasons. Let's see how many we can come up with.

1. Hello Streisand Effect. There were approximately one gazillion articles this week about products coming out of CES, and the place was wall to wall with journalists -- probably half of whom were coming up with their own "best of" lists. Most people were completely saturated with CES stories and would barely glance at such a story. Except... now, tons of people are suddenly finding out about this awesome Dish DVR, the Hopper with Slingbox. In fact, they're hearing that the damn thing is so good that CBS is trying to block any news of it from getting out. Talking about increasing the awareness... I have no clue whatsoever what product CNET -- or any other publication -- awarded "best of CES" to. But I sure as hell am well aware of Dish's new DVR.
2. Goodbye to the wall that separates the suits from the journalists at CBS/CNET. CBS execs have just confirmed that they don't want their journalists and reviewers to cover things based on the merits, but rather on what it means for their corporate masters.
3. Hello slippery slope. Is it really that hard to see where this heads next? Is CNET still allowed to report on the lawsuit if CBS loses? If they can't talk about the products, what about the legal issues themselves?
4. Goodbye journalists with credibility. Frankly, CNET has always had some of the strongest tech reporters in the business. For many years I've considered it one of the top tech news sites out there. I have tremendous respect for many of the reporters there. But, now I have to wonder how much the suits are interfering with their ability to report things accurately.
5. Goodbye to principled journalists who want to work for CBS. If I'm a journalist at CNET right now, I'd be seriously considering quitting in protest. This move seriously harms the brand and reputation of the site, and this is the kind of thing that journalists should stand up against. Having the suits interfere with what they can write about is generally seen as a massive offense to journalists. I would bet this leads to some of the best, most principled CNET reporters jumping ship to elsewhere.
6. Good luck to CNET hiring new journalists. Who wants to jump into that toxic situation?

CBS's suits should have kept quiet and not interfered with the news side of the business. They had to know that this would backfire in a big bad way. And, if they didn't know that, they deserve to lose their jobs for being pretty clueless about things that matter.

Of course, they were probably thinking that Dish would likely use the reviews from CNET as evidence in the lawsuit, which very well may be true (and could still happen since the review did go out). But it's not hard to get around that, since the legal impact of a single review is near zilch. In the end, they didn't stifle the review, they made it more well known. They didn't do anything that helps them in their lawsuit. And they're left with an undoubtedly pissed off set of journalists who may now question how free they are to actually report the news.

Filed Under: ces, credibility, dvr, failures, hopper, journalism, lawsuits, reporting, slingbox, streisand effect
Companies: cbs, cnet, dish

The DVR That Watches You Back: Verizon Applies For 'Ambient Action' Detecting Device Patent

from the comes-with-pair-of-glue-on-googly-eyes-to-make-product-seem-fun-and-less-creepy dept

Here's another patent application to keep an eye on, following on the heels of Microsoft's patent app for a TV that counts noses in order to charge each viewer for content, potentially turning your living room into something akin to a porn store viewing booth or bus stop TV -- "please insert $2 to continue viewing." Verizon's patent application also involves a device eyeballing your living room, this time in an effort to target advertising.

Verizon's living room intruder is a DVR that observes "ambient action," identifies it and scans its ad database for an appropriate ad to serve up during the next commercial break. This sounds about as creepy as an ad exec watching you through your open living room drapes in order to decide which flyers to shove in your mailbox. Rest assured, Verizon's use of the phrase "ambient action" is designed for maximum innocuousness. It's not until you get to the list of possible "ambient actions" that the creep factor really kicks in.

[0016] To illustrate, an exemplary ambient action may include the user eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, playing a musical instrument, performing any other suitable action, and/or engaging in any other physical activity during the presentation of the media content. In certain examples, the ambient action may include an interaction by the user with another user (e.g., another user physically located in the same room as the user). To illustrate, the ambient action may include the user talking to, cuddling with, fighting with, wrestling with, playing a game with, competing with, and/or otherwise interacting with the other user. In further examples, the ambient action may include the user interacting with a separate media content access device (e.g., a media content access device separate from the media content access device presenting the media content). For example, the ambient action may include the user interacting with a mobile device (e.g., a mobile phone device, a tablet computer, a laptop computer, etc.) during the presentation of a media content program by a set-top box (“STB”) device.

It looks as though Verizon has carefully avoided naming any other ambient actions that viewers may not want to have "watched back," like "having sex with," "fighting with," "yelling at," "masturbating to," "Farmvilleing at" or "blogging about." All joking aside, it's a bit disconcerting that Verizon's main concern isn't the potential privacy violations, but rather that its customers just aren't watching TV hard enough.

[T]raditional targeted advertising systems and methods fail to account for one or more ambient actions of a user while the user is experiencing media content using a media content access device. For example, if a user is watching a television program, a traditional targeted advertising system fails to account for what the user is doing (e.g., eating, interacting with another user, sleeping, etc.) while the user is watching the television program. This limits the effectiveness, personalization, and/or adaptability of the targeted advertising.

I suppose that, in this era of "second screens" and "promiscuous 'cuddling' teens," it's tough to get the sort of "captive audience" that advertisers (and the companies that sold customers to them) used to take for granted. The bold, new paradigm is the "observed audience," an innocuous phrasing in itself. The "tracked audience." The "surveilled audience." These terms are a little more accurate, especially considering how much information Verizon covers under the pillow-soft, marketing-friendly, customer-disarming term "ambient."

[0019] Detection facility 104 may be additionally or alternatively configured to analyze data received by way of a detection device in order to obtain information associated with a user, an ambient action of the user, a user's surroundings, and/or any other information obtainable by way of the data. For example, detection facility 104 may analyze the received data utilizing one or more motion capture technologies, motion analysis technologies, gesture recognition technologies, facial recognition technologies, voice recognition technologies, acoustic source localization technologies, and/or any other suitable technologies to detect one or more actions (e.g., movements, motions, gestures, mannerisms, etc.) of the user, a location of the user, a proximity of the user to another user, one or more physical attributes (e.g., size, build, skin color, hair length, facial features, and/or any other suitable physical attributes) of the user, one or more voice attributes (e.g., tone, pitch, inflection, language, accent, amplification, and/or any other suitable voice attributes) associated with the user's voice, one or more physical surroundings of the user (e.g., one or more physical objects proximate to and/or held by the user), and/or any other suitable information associated with the user.

There's also wording in the application regarding recognizing the tune a viewer is humming and reacting accordingly (presumably by contacting the nearest PRO and reporting an unlicensed public performance). It also leaves the option open for detecting other animate and inanimate objects, including pets and branded products. And, like Microsoft's application, Verizon's suggests the system will be able to distinguish between adults and children and activate parental controls.

This being Verizon, the advertising watch-and-push isn't limited to the all-seeing DVR. The user's phone or tablet will most likely be receiving additional advertising or content based on what "ambient actions" are detected. I can only imagine the delighted thrill of customers watching their DVR shove ads onto their phones simply because they weren't paying enough attention to the ad on the TV screen.

Once again, this is nothing more than a patent application, which doesn't necessarily mean this product will ever make it to market, USPTO 'OK' or not. But it does give you some idea of Verizon's theories on where targeted advertising is headed.

Filed Under: advertising, dvr, patents, surveillance
Companies: verizon

Michael Robertson Continues To Tempt Copyright Fate With UberTalk: Recordable Radio Directory Online

from the what-technology-allows dept

Michael Robertson has a long history of pushing the boundaries of copyright law, by going where the technology allows, even if the law hasn't quite caught up yet. As such, he frequently finds himself on the wrong end of legal actions from legacy players who hate being disrupted. Last year, we wrote about his DAR.fm effort, which basically is an online DVR for broadcast radio. He's now taking that even further, with the launch of UberTalk, an online directory of what's on radio right now (and in the future). You know your basic online (or on screen) TV guides? Yeah, UberTalk is that, but for radio -- with the convenient ability to play... or to record and time shift anything you'd like. Given the state of radio today, this seems really, really useful. But, is it legal? We've already seen legal threats pointed at DAR.fm, and I can't imagine that all the broadcast folks will like this either -- even though it only increases the value of their product by making it more easy to find and useful.

What we're seeing, yet again, is how the technology allows for something really useful that adds value to both the content and for the users. And yet... copyright law makes it very, very difficult to pull off. Why? Because copyright law is purposely built around keeping the status quo, not about encouraging innovation. So you have yet another clear case where it seems like copyright law is holding back "the progress" rather than helping to speed it along.

Filed Under: directory, dvr, guide, michael robertson, radio, recording
Companies: dar.fm, ubertalk

Aereo Wins Round One Against Broadcasters; Judge Rejects Injunction & Allows Service To Live

from the how-do-you-define-your-antenna dept

We've been covering the ridiculous legal fight over Aereo for a few months now. If you don't remember, Aereo is a company that offers -- for a fee -- to let people watch over-the-air broadcast TV (not cable, so just the small number of broadcast stations) online. Basically, what they do is set up antennas in a building in Brooklyn -- with one antenna per customer -- and then connect that antenna to the internet so the person can watch. The TV broadcasters flipped out and sued.

As we've noted, in essence, this is another lawsuit that asks the question: do the copyright rules change depending on the length of your cable. That is, we know that it's legal to put up an antenna yourself and watch what you get. That's how broadcast TV works. We also know that it's almost certainly legal (it hasn't directly been tested) to take the legal TV you are accessing and then place-shift it so you can watch it over the internet (like with a Slingbox). So, if you combine those two things, why would it suddenly be illegal? The only real difference is that the antenna and the place shifting device sit in Aereo's building rather than in your own home. So, it's just that the "cable" length between the users and the devices is longer. Why should the length of the cable determine whether something is infringing or not? In a few related legal cases, the rulings have been mixed.

There was the ivi case, where the company offered a very similar service, but went with a different legal theory (relying on compulsory licensing rules)... which has so far been shot down in court. Then there was the Zediva case which relied on a very similar theory, but with DVDs (i.e., the company had a separate DVD player for each customer and let you watch movies streamed from that individual player). In that case, the court issued an injunction and the company shut down. Finally, there's the Cablevision ruling in which the TV guys went after Cablevision for offering a remote DVR feature. In a somewhat convoluted, but important, ruling, it was found that a remote DVR could be legal and non-infringing.

While the networks seriously argued that anything that caused anyone to think about cancelling their cable subscriptions could be illegal, the judge in the Aereo case, Alison Nathan, has refused to grant a preliminary injunction (basically doing the opposite of what happened in the Zediva ruling). Zediva was in a different court (and only reached the district court level anyway) so that ruling had little direct influence here. The Cablevision ruling, however, was pretty clearly instrumental in saving Aereo from being shut down.

Much of the ruling focused on what seems like a relatively tangential question: whether Aereo is really creating an individual antenna for each customer, or if it's just building a giant single antenna. More or less, it's a question of whether or not each individual antenna works with the others to better capture the signal. This is also known as a totally stupid debate. I mean, if you were to step back and just look at this from a common sense standpoint, you'd say the fact that Aereo has to set up a different antenna for each customer is pretty stupid. There's no technical reason to do so, only a legal one. It is an expense that serves only to satisfy a legal demand, which is by definition an inefficiency introduced into the market for no reason other than to keep lawyers happy.

But, here, the judge ruled that the individual antenna theory applies, and thanks almost entirely to the Cablevision ruling, there's no reason to issue a preliminary injunction. The networks tried some bizarre theories about why Cablevision didn't apply, but the judge saw through all of the attempts at misdirection:

Despite this creative attempt to escape from the express holding of Cablevision, for the reasons discussed below this Court finds itself constrained to reject the approach Plaintiffs urge. Contrary to Plaintiffs' arguments, the copies Aereo's system creates are not materially distinguishable from those in Cablevision, which found that the transmission was made from those copies rather than from the incoming signal. Moreover, Plaintiffs' attempt to distinguish Cablevision based on time-shifting fails when confronted with the reasoning of that case, particularly considering that the Second Circuit's analysis was directly focused on the significance of Cablevision' s copies but did not say one word to suggest that time-shifting played any part in its holding.

From there, the ruling goes into a wonderfully thorough debunking of the networks' attempt to ignore the ruling in Cablevision and a detailed explanation for why Aereo is quite similar to Cablevision. In the end, the judge also bars the preliminary injunction due to the lack of irreparable harm if the service keeps going for the duration of the trial. The court actually says that it can see how there is a clear case that the networks could suffer irreperable harm, in the form of losing viewers and advertisers -- but that since that "harm" is a longterm one, there's little reason to issue an injunction right now. Separately, the court recognizes that an injunction would almost certainly be "irreparable harm" for Aereo, as it would effectively be a death sentence (as was the case with Zediva). Either way, however, the level of detail the court uses in laying out why Aereo is so similar Cablevision does not bode well for the networks' overall case.

This case is far from over, but in round one, the networks' key argument appears to have taken quite a beating.

Filed Under: broadcasting, dvr, place shifting, television
Companies: aereo, cablevision, ivi, zediva

Hollywood & The RIAA Won't Let Tech Save Them

from the fighting-the-wrong-fight dept

We've discussed in the past how ridiculous it is to claim that there's a fight between "Hollywood and Silicon Valley." After all, the tech industry keeps creating the tools for Hollywood to succeed and broaden its market... and every time they do so, Hollywood responds by attacking those providing the tools. Every innovation that created a vast new market from which to profit from has been attacked. The gramophone. Radio. TV. Cable TV. The VCR. The MP3 player. YouTube. The DVR. In the end, all of these created great new opportunities, but were attacked. As we've said, it's a very strange war where one side (tech) is building all the weapons for the other side... only to see them point those new weapons at their own feet.

Of course, it's actually even worse than that. Because, not only does Hollywood point these new weapons at their own feet... they then try to sue and blame the tech industry for creating these same weapons. It's a pretty hostile environment.

And this is a massive problem for Hollywood. Because, throughout history, it has been shown that the only solution that actually helps solve the "issue" of "piracy" is the creation of new and useful legitimate services. And the entertainment industry is doing its best to scare everyone off from doing that by attacking each of those new services as it comes about. Entrepreneur Tyler Crowley has a great analogy explaining how the entertainment industry is driving the very innovators it needs help from away. He talks about how entrepreneurs look at markets as "islands of opportunity." He lists out a few, such as the Facebook island and the Apple island.

For tech folks, from the 35,000' view, there are islands of opportunity. There's Apple Island, Facebook Island, Microsoft Island, among many others and yes there's Music Biz Island. Now, we as tech folks have many friends who have sailed to Apple Island and we know that it's $99/year to doc your boat and if you build anything Apple Island will tax you at 30%. Many of our friends are partying their asses off on Apple Island while making millions (and in some recent cases billions) and that sure sounds like a nice place to build a business.

He talks about a few other of these "islands of opportunity" (and does a nice job breaking them down). But then he gets to the "music biz island" (which I'd argue is actually the "legacy entertainment biz island") and notes the hostile reception:

Now, we also know of Music Biz Island which is where the natives start firing cannons as you approach, and if not stuck at sea, one must negotiate with the chiefs for 9 months before given permission to dock. Those who do go ashore are slowly eaten alive by the native cannibals. As a result, all the tugboats and lighthouses (investors, advisors) warn to stay far away from Music Biz Island, as nobody has ever gotten off alive. If that wasn't bad enough, while Apple and Facebook Island are built with sea walls to protect from the rising oceans, Music Biz Island is already 5 ft under and the educated locals are fleeing for Topspin Island.

In other words, the good entrepreneurs, who actually can help the entertainment industry (some of whom tried in the past) are actively pushed away from helping. And then the entertainment industry whines that no one wants to help them. Perhaps they should look at being just a bit more welcoming...

On a side note: Crowley's writeup was actually in response to a dinner gathering at some super super swank LA eatery that tried to bring together the heads of the major labels with some LA entrepreneurs. That's actually encouraging, though, again, meeting in backrooms is still missing the point. Why is it so hard for the industry to have a discussion in public?

Filed Under: dvr, hollywood, mp3, riaa, technology, vcr

Cisco Has Enough Of TiVo Patent Claims, Files To Invalidate TiVo Patents

from the offensively-defensive dept

Over the past few years, as competition in the DVR market has become tougher, TiVo has become more and more reliant on using its patents to stop competition and innovation, rather than focusing on competing in the marketplace. its most famous case was the one against EchoStar, which even included TiVo buying a bull (literally) in Eastern Texas, where the district court case was heard. While it won at the district court level, during the appeals process, the Patent Office suddenly indicated that the patents might not be so solid. Not long after that, TiVo and EchoStar worked out a settlement.

TiVo found the process so enjoyable that it apparently started thinking about a second career as a patent troll -- and has already sued Verizon and Motorola. Not surprisingly, it's been pushing some others to license some patents... and at least one large player has had enough. Cisco, owners of Scientific Atlanta, a maker of settop boxes and DVRs, has filed a lawsuit seeking to invalidate four TiVo patents -- or, if the patents are found valid, a declaratory judgment that it does not infringe.

Of course, by filing first, Cisco was also able to file the case in San Jose, rather than letting TiVo try to get the case into Texas (despite the fact that both Cisco and Tivo are located not far from each other in Northern California). As far as I know, TiVo has not purchased a bull in San Jose.

Filed Under: dvr, eastern texas, patent troll, uspto
Companies: cisco, echostar, motorola, tivo, verizon

TV Networks File Legal Claims Saying Skipping Commercials Is Copyright Infringement

from the wow dept

Okay, we had expected the TV networks to possibly take legal action against DISH Networks for its new Auto Hopper technology, which allows DISH subscribers who use the Hopper feature (which records all prime time shows from the four major networks) to autoskip commercials, if they watch shows in the days after they originally air. It wasn't a surprise that the TV networks didn't like this at all, but could they really make a legal argument that skipping commercials was against the law? We've all heard the story of former Turner Broadcasting exec Jamie Kellner claiming that not watching commercials was "theft," but do the networks actually think there's a legal basis for such claims?

It appears they do. Though, the legal arguments are insane.

As you may have heard by now, Fox, CBS and NBC Universal have all sued DISH in California. At about the same time, DISH itself filed for declaratory judgment in New York against those three, and ABC, who hasn't yet filed suit, but perhaps will shortly. I would imagine that all of the cases will be consolidated in one of the courts.

What's scary, however, is that the TV networks appear to be using this lawsuit to claim that skipping commercials is copyright infringement. I haven't yet seen the NBC filing, but the Fox and CBS filings both make this same basic argument. Update: NBC filing is added below, and is nearly identical to the CBS filing, down to the very same lawyers. Fox first argues that merely recording the entire prime time lineup is making "bootleg" copies of the videos. That's a rather stunning claim, and a direct challenge to the Supreme Court's ruling in the Betamax case, which made it clear that time-shifting is legal. The networks are claiming that this is not the same thing, because the "copies" aren't being made by the user, but by DISH itself for use by the user. Beyond being a meaningless distinction, it's also not true. As the Cablevision case concerning a "remote DVR" offered by the service provider showed, if the actions are at the request of the consumer, then it's the consumer making the call. With the DISH offering, the subscriber is still the one pushing the button and asking the DVR to record the shows. Is it really that different that it takes one button rather than punching in a few shows? That would be extraordinary -- but these filings are full of such extraordinary claims.

Where the filings go really off the wall is in basically saying that skipping commercials is infringement. They do this in the sections on "inducement," wherein they suggest that, even if DISH doesn't directly infringe, it is is inducing infringement by offering the auto commercial skip feature to users. From the CBS filing:

Users of the Hopper's PrimeTime AnyTime feature who record Plaintiff's prime-time shows and use the Hopper's Auto Hop feature to automatically skip commercials otherwise contained in those recordings infringe Plaintiffs' exclusive reproduction rights under section 106 of the Copyright Act,

But this makes no sense. Recording the show for later viewing is already deemed legal. So the only difference here is the intent of the user to watch later to skip commercials. Thus, CBS seems to be saying that merely wanting to avoid commercials is, itself, direct copyright infringement. And, given that Auto Hop doesn't work until the day after the shows air, does that mean that it's legal to record the shows if you intend to watch them the same day... but the second your intention is to watch them later, it's copyright infringement? That makes no sense and has absolutely no basis in the law. And, uh, what happens if you record it with the intent to watch the next day and skip commercials... but then watch it the same day with the commercials? The allegation above says merely recording the shows with intent to skip commercials is infringement, even if you don't actually skip the commercials! That makes no sense.

Fox's filing makes similar claims, insisting that DISH is inducing infringement because it "took active steps to encourage its subscribers to use Primetime Anytime to infringe FOX's copyrights." But that's flat out malarkey. It's legal for users to time shift shows. That's established. Yet, these filings seem to want to totally ignore that, and then assume that a user watching a DVR'd s how is automatically infringing on copyright because they might skip commercials.

The argument makes absolutely no sense at all. Effectively, the networks are trying to claim inducement to infringe... but do not (and, indeed, can not) show what or who is actually infringing. Time shifting is legal. Not watching commercials is legal. So, er, where's the copyright infringement, unless you completely throw out the Betamax ruling?

The filings also go down the path of explaining how this disrupts their business model. They honestly seem to be arguing for what some people have amusingly referred to as "felony interference with a business model." They list out all the different ways they get companies and users to pay multiple times for the same content, and use that to suggest this must be illegal, even though DISH has a retransmission license and all the individual parts are legal. I honestly don't understand this argument -- they're just claiming that because they don't like how end users engage with otherwise legal content, it must be illegal. Fox even uses this to claim that DISH's offering is not "enhancing consumer choice." Apparently, in the minds of TV network lawyers, what counts as "consumer choice" is limited to what the TV networks want to count as consumer choice... and any other choices are no choices at all. Or something.

There are a few slight differences in the lawsuits. For example, Fox brings up the fact that DISH also offers the Slingbox to allow users to not just time-shift but also place shift, though fails to explain why that's an issue at all. Fox also includes a breach of contract claim, which also may be difficult to support if all of the other actions prove to be legal.

DISH's declaratory filing gives you a pretty clear sense of that company's argument, pointing out that this is a nice feature that consumers want, that this kind of technology is already widely in use, and that it's not clear how any of this is infringement.

Auto Hop is a more efficient way of achieving what consumers already do with standard DVRs. A 30-second skip feature is already standard on many DVR remote controls. It permits viewers to automatically skip ahead in a recording, at the touch of a button, completely bypassing a typical 30-second television commercial. The remote controls that come with DVRs supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip feature. DISH has provided a 30-second skip feature for years. By pressing the 30-second skip button multiple times, a viewer can elect to bypass the full complement of commercials between show segments. Now, DISH allows the customer to opt to use an Auto Hop feature that is just an extension of this 30-second skip function. It avoids the common frustration that occurs when viewers, using the 30-second skip or plain fast-forwarding, overshoot the commercials and fastforward into the television programming content that they really want to watch.

DISH also points out that skipping commercials is not illegal:

DISH's Auto Hop feature promotes consumer autonomy. Viewers have skipped commercials for decades. Viewers commonly use the commercial break as a time to get up and momentarily leave the room. Ever since the advent of the remote control, viewers have changed channels or muted the sound during commercial breaks. And, since the advent of the VCR and DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted choice to skip a commercial.

I can't see how the networks' argument can stand very much legal scrutiny at all -- but stranger things have happened when copyright cases hit the court. Still, the arguments here are so bizarre, and so unsupportable, you have to believe a judge will reject them quickly.

Filed Under: auto hopper, betamax, commercials, dvr, jamie kellner, television
Companies: cbs, dish networks, fox, nbc universal

TV Network Execs Contemplate Going To Court To Say Skipping Commercials Is Illegal

from the that-won't-go-over-well dept

Late last week Charlie Ergen and the folks at Dish Networks presented the TV networks with a bit of a conundrum. You see, the company decided to actually give consumers what they want: setting up a special DVR system, called Auto Hop, that would let viewers not just automatically DVR the entire primetime lineup of all the major networks with the single push of a button -- but also to automatically skip commercials when watching the playback, as long as it wasn't the same day the shows aired. This is something that consumers clearly want -- which Dish execs were pretty upfront about:

“Viewers love to skip commercials,” Vivek Khemka, vice president of DISH Product Management, said in a statement

But, of course, who is a consumer in this market gets complicated pretty fast. The TV networks, of course, make a fair bit of money from advertising on these shows, and they're not happy about any idea that means people might skip commercials. Those of you who have been around for a bit may recall a few relevant stories. First, there was Jamie Kellner, the former chair of Turner Broadcast Systems, who once claimed that walking away from your TV while commercials aired was a form of theft. Then, of course, there was the famous ReplayTV case. If you don't recall, ReplayTV was an early competitor to TiVo, and in many regards a better product. Among its features, it took an already considered legal feature from VCRs called "commercial skip" and added it to DVRs. The industry sued, in large part because of this feature, which they considered to be breaking the law.

Of course, the expense of the lawsuit resulted in Replay's parent company SonicBlue declaring bankruptcy. It then sold off the remains to D&M, who tried relaunching a version of the product without all the cool features people liked, and it went nowhere. Eventually, DirecTV bought the remnants. However, the basic lawsuit died out with the bankruptcy. A bunch of ReplayTV users, led by Craig Newmark from Craigslist, actually tried to continue the case on their own, to have those features declared legal, but after the networks promised not to sue those users for using the features, the judge tossed the case.

Left unresolved, of course, is whether or not features like commercial skip are actually legal.

As some are pointing out, the TV networks may have missed a golden opportunity by not continuing the fight against Craig and the other users, since they wouldn't be able to afford the bigtime lawyers that Ergen and Dish can easily toss out here. So the TV networks basically have to make the decision if this is really a battle worth fighting.

It does seem clear that the anti-consumer folks who run the TV networks would certainly like to slap Dish around for this move:

"I think this is an attack on our eco-system," said NBC Broadcasting chairman Ted Harbert on a conference call Monday. "I'm not for it."

Isn't it just like NBC to think that a tool that the public actually finds useful is an "attack" on their ecosystem? At some point, in the way, way distant future, perhaps we'll live in an age where companies like NBC Universal recognize that, when things are more efficient and easier for consumers, it is a good thing, rather than something to freak out about and declare evil?

Filed Under: charlie ergen, commercials, dvr, vivek khemka
Companies: dish networks, nbc, replaytv, sonicblue, tivo, turner broadcast systems

DAR.fm Receives Cease & Desist For Letting People Record Radio Online

from the how-dare-they dept

Earlier this year, we wrote about Michael Robertson's latest project, DAR.fm, noting that he was tempting copyright lawsuit fate again. DAR.fm is basically an online DVR for radio. It lets you record and listen to all sorts of online radio programming. As we noted at the time, it seemed inevitable that someone would challenge the legality of this -- but it seemed like the Second Circuit's ruling in the Cablevision online DVR case at least presented him with a case that supported his general view that such time shifting of radio, even if done remotely, is legal.

Either way, it appears he's received his first cease & desist, which comes from Univision and is embedded below. Robertson is making his case against Univision publicly, first pointing out that it seems to be reacting the same way the TV industry did to TiVo and ReplayTV:

Ten years ago, ReplayTV and TiVo burst onto the scene introducing the digital video recorder (DVR) to the world. Immediately some predicted the end of the TV business because people could fast-forward through commercials. Lawsuits put ReplayTV out of business (in spite of superior technology). Eventually cooler heads prevailed and the technology thrived to the point where nearly half of American households have a DVR. Consumers could, for the first time, enjoy their favorite programming at a time convenient for them. Thanks in large part to the DVR, TV viewing is up 40% over the last decade which is especially notable given that competition for consumer attention has stiffened due to internet browsing, Skype, video games, and social networking.

You would think that with this backdrop radio companies would welcome DVR technology into their own industry and many probably will but at least one doesn't - Univision.

He goes on to make the case that such time shifting is quite common and legal. In fact, he points out that Univision is more known for its TV stations, and are they really arguing that a DVR is legal for video, but a DAR is not for audio?

While recording broadcasted material may be new to radio, it's not new to society and surely Univision must know that. Nearly 50% of US households have a DVR today. Univision's TV business dwarfs its radio business. It's likely that millions of people are making recordings of Univision TV shows as I write this. And some may be blinking their eyes or listening from another room transforming these video recordings into audio recordings. Similarly, internet users can capture online articles for later viewing using popular services like Readitlater and Instapaper and some may be doing that from the Univision.com website. If it's legal in those channels it only makes sense that the same functionality is legal for radio.

In their demand letter Univision says that no court has addressed the legality of "precisely" the kind of service offered by DAR.fm. Well of course not the PRECISE service, but darn close. The case is called Cartoon Network v Cablevision. Cablevision wanted to offer a remote DVR service and media companies sued them alleging copyright infringement. (You can read assessment of this critically important case here.) Courts eventually ruled that a centralized recording service did not require a license from media companies and was not a copyright infringement. Cablevision now commercially offers this service under the name DVR Plus. Other companies have begun offering online recording services.

It will come as little surprise that I think DAR.fm should be legal, but the courts can be funny about this kind of thing. Even though, functionally, it may seem identical to a DVR, having it actually go to court is a crapshoot. Still, if Univision is smart, it'll back down on this. Making their stations and programs more difficult to listen to hardly seems like a compelling business strategy.

Filed Under: copyright, dvr, michael robertson, recording
Companies: dar.fm, univision