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Can Cable Companies Store Shows For Us?

timothy posted more than 4 years ago | from the which-end-of-the-wire dept.

Media 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."

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165 comments

Everyone's name is Steve (-1, Offtopic)

Gizzmonic (412910) | more than 4 years ago | (#27921885)

I'm a Steve, you're a Steve. Get used to it.

Re:Everyone's name is Steve (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#27922165)

You don't deserve get used to it!

Targets that can fight back (5, Insightful)

causality (777677) | more than 4 years ago | (#27922023)

Cable companies tend to be large media conglomerates. Surprisingly, it looks like the *AAs finally picked a target that can afford to defend itself. It'll be interesting to see how they fare when the playing field isn't asymmetric.

Re:Targets that can fight back (1)

Maximum Prophet (716608) | more than 4 years ago | (#27923401)

Time Warner is a cable company *and* an media producer. Do they need to sue themselves? (:-) Only half joking, after AOL bought TW, TW wouldn't let AOL use TW trademarked icons like Bugs Bunny and the Coyote.

Re:Targets that can fight back (1)

davester666 (731373) | more than 4 years ago | (#27924685)

I would think the *AAs don't really want any precedent set w.r.t. an end-users fair-use rights, unless it is that they don't have any.

Fair use (4, Insightful)

GrifterCC (673360) | more than 4 years ago | (#27922033)

If I'm either party, and I want the Supreme Court to decide an issue for me that I think I'll win, I'm going to work with the other side to waive the legal doctrines which best protect me. I don't want them to say "fair use" or "secondary infringement." Perhaps Cablevision wants to set up a decision granting more protection to content providers, just as the MPAA wants to set up a decision expanding the definition of primary infringement to include what Cablevision did.

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.

Re:Fair use (4, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#27922149)

If I'm either party, and I want the Supreme Court to decide an issue for me that I think I'll win, I'm going to work with the other side to waive the legal doctrines which best protect me. I don't want them to say "fair use" or "secondary infringement." Perhaps Cablevision wants to set up a decision granting more protection to content providers, just as the MPAA wants to set up a decision expanding the definition of primary infringement to include what Cablevision did. 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.

1. I'm not sure I understand your theory as to why both sides waived their best arguments. But I sure would love to have been a fly on the wall when those decisions were made.

2. The issues were narrowed by stipulation earlier in the case, before it got to the Second Circuit. The Second Circuit had to take the case; it was an appeal as of right. So this narrowing had nothing to do with getting Supreme Court review.

Re:Fair use (4, Insightful)

mea37 (1201159) | more than 4 years ago | (#27922495)

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:Fair use (1)

Uberdog (73274) | more than 4 years ago | (#27925505)

The service is a "network DVR [arstechnica.com]", basically moving the DVR capabilities from a box sitting in the user's home to a server at the cable company. IANAL, but from what I understand that's exactly how they won the lawsuit, by showing that it matched feature-for-feature with a home DVR.

Re:Fair use (4, Interesting)

GrifterCC (673360) | more than 4 years ago | (#27923431)

NYCL, as I understand it, the case in question doesn't even involve damages yet; it's basically a declaratory judgment action. So there's no money on the line. It's a pure question of law.

Here's what I'm thinking: Cablevision knows that users can time-shift, under SONY Betamax. So they know that if they sell users a TiVo, it's not secondary infringement.

If Cablevision is looking to provide this on-demand player as a value-added service without paying for it, being able to charge for that feature without having to lease out a bunch of TiVos saves them money; users will presumably pay the same amount regardless of whether there's another box in their entertainment center. So consolidating the service into a central repository is just free money for Cablevision.

The only question left is whether the consolidation itself is infringement. Maybe not, but why take the chance, given how litigious MPAA is?

As for the MPAA, they know they can get secondary infringement in certain situations, but probably not this one, given the end users' right to timeshift. But the MPAA may see this as an opportunity to expand "primary infringement" and secure their position, as digital timeshifting becomes more common, in future negotiations with the midstream providers.

Re:Fair use (1)

PMuse (320639) | more than 4 years ago | (#27924687)

1. I'm not sure I understand your theory as to why both sides waived their best arguments. But I sure would love to have been a fly on the wall when those decisions were made.

Almost makes you question whether the sides are truly adverse. Perhaps neither wants to advance an argument that could expand the rights of individuals/users/customers.

I don't see how this works at all.. (2, Interesting)

plasmacutter (901737) | more than 4 years ago | (#27922051)

Previous decisions have ruled in favor of personal time shifting.

Cable companies are licensed distributors over their networks, this includes on demand.

I don't get how their "case" even got this far.

Re:I don't see how this works at all.. (1)

Richard_at_work (517087) | more than 4 years ago | (#27922261)

Does it really include 'on demand'? What do their distribution licneses say? You are assuming something fundamental there...

Re:I don't see how this works at all.. (1)

bberens (965711) | more than 4 years ago | (#27924655)

I don't see the difference. 90% of the DVRs out there (which are apparently legal) are owned by the cable companies and rented to end users. All they did was move the DVR up the channel.

Re:I don't see how this works at all.. (2, Interesting)

AmaDaden (794446) | more than 4 years ago | (#27922519)

It's all business mess. Interesting note on this topic. I was talking to someone who worked for Cablevision about DVRs. He told me that they were thinking of moving storage in house so that you would not need a HD in your cable box. The obvious way to do this is to just record all channels at all times and then just keep records of what people want to watch later. They could not do this however since this would make them a broadcaster or content provider or something like that. So the current plan to implement this is to just record the same thing once per person. So if 20,000 people want to see the same episode of MythBusters they will have 20,000 copies of it on their servers.

Re:I don't see how this works at all.. (1)

Tanktalus (794810) | more than 4 years ago | (#27922691)

So if 20,000 people want to see the same episode of MythBusters they will have 20,000 copies of it on their servers.

All stored using hardlinks to the master copy so they don't take 20,000 times the space. :-P

Re:I don't see how this works at all.. (0)

Anonymous Coward | more than 4 years ago | (#27923097)

but it may use 20,000 HD VOD slots if the people all want to see it at about the same time but not all at the exact same time.

Apparently "On Demand" isn't protected (3, Insightful)

msobkow (48369) | more than 4 years ago | (#27924403)

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.

they know (2, Interesting)

Lord Ender (156273) | more than 4 years ago | (#27922071)

They know they can win with the "fair use" defense, but they're going for an even stronger ruling. If that fails, they will appeal on fair use grounds. That's my guess, anyway.

Re:they know (1)

Late Adopter (1492849) | more than 4 years ago | (#27922531)

Is that possible?

My understanding of the judicial system was that you could only appeal errors of law, i.e. you couldn't expand the scope of your defense or introduce new evidence. I could be wrong, IANAL.

Re:they know (2, Informative)

Lord Ender (156273) | more than 4 years ago | (#27922569)

I know in criminal courts, prosecutors often "hold things back" so that they can launch a different line of prosecution in case their primary line is defeated. I do not know if similar techniques are used in tort cases.

Re:they know (1)

mea37 (1201159) | more than 4 years ago | (#27922653)

Well, not through an appeal they don't. In fact, the prosecution in a criminal case doesn't get to appeal at all - that would be called "double jeopardy".

Re:they know (1)

djp928 (516044) | more than 4 years ago | (#27923383)

Prosecutors only get one shot at a conviction. If the jury returns a not guilty verdict in a criminal case, that's it--the prosecution doesn't get to try again.

Re:they know (2, Informative)

mea37 (1201159) | more than 4 years ago | (#27922545)

I don't think you can say "I'm not going to use this argument" and then appeal a ruling you don't like to introduce that argument. As I understand it, appeals are to correct errors in the judicial process; you don't get to bring new arguments about the original case to the table.

Besides, you can't appeal past the Supreme Court.

To reduce this to simpler terms......... (2, Interesting)

jonnycando (1551609) | more than 4 years ago | (#27922073)

Bad enough my cable company can figure out what I watch: I don't want them storing my stuff for me. Even if it's legal to do so, it is not wanted, and I am sure the cable company will figure out how to make mincemeat of privacy once I allow them to store my TV shows and movies. The more you allow others to do for you, the more you let others control you.

Re:To reduce this to simpler terms......... (1)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#27922231)

Bad enough my cable company can figure out what I watch: I don't want them storing my stuff for me

This program was totally optional. It would be you, the consumer, saving the show. If you didn't want them storing it for you it wouldn't be stored. It's only at your request.

Re:To reduce this to simpler terms......... (0)

Anonymous Coward | more than 4 years ago | (#27922935)

So the cable company was acting as the consumer's agent. Since the consumer can record the show, using an agent to do something you are already allowed to do is perfectly OK here.

Re:To reduce this to simpler terms......... (1)

sabt-pestnu (967671) | more than 4 years ago | (#27923827)

As a technical matter, I would be surprised if the cable company stored the show independently for each consumer. It would make much more sense for the cable company to store the show with a count of the number of people 'storing' it; and keep the fact that a particular customer stored it with their account data. Much less data to keep track of.

Re:To reduce this to simpler terms......... (1)

mea37 (1201159) | more than 4 years ago | (#27922611)

Um.... if they can figure out what you watch (which, as you note, they can), then they can store a list of what you've watched.

If they can store a list of what you've watched, they can - at any time without your knowledge - go reconstruct the library of what you've watched, just as if they'd been storing it.

How is on-demand storage of the program any worse? It's not like they're storing any personal data of yours that they didn't have anyway...

Re:To reduce this to simpler terms......... (2, Insightful)

Chabil Ha' (875116) | more than 4 years ago | (#27922695)

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.

Re:To reduce this to simpler terms......... (1)

Madball (1319269) | more than 4 years ago | (#27922797)

Bad enough my cable company can figure out what I watch: I don't want them storing my stuff for me.

It's not "your stuff". Whether you can time-shift your consumption of it or not, it's not truly yours.

Even if it's legal to do so, it is not wanted, and I am sure the cable company will figure out how to make mincemeat of privacy once I allow them to store my TV shows and movies.

How is their storage of the content an additional invasion of privacy (beyond the tracking they already do)?

The more you allow others to do for you, the more you let others control you.

Might want to loosen the tinfoil.

tortured analysis (5, Interesting)

gravesb (967413) | more than 4 years ago | (#27922115)

We had a symposium on this issue, and a lawyer talked from the plaintiff's side. Much of their theory dealt with the length of the cable, based purely on a statutory reading. While I understand he has a duty to attempt to apply the statute in his client's best interests, his construction made little sense. Still, he had to rely on that construction to get around Sony. Essentially, it is legal for me to time shift in my house. So why can't I put my time shift device outside of my house, say in a warehouse with a lot of other time shift devices? And what if I make those time shift devices virtual devices on a single server? His point was that moving the device outside of my house was the difference-it became a transmission. He could not provide a length of cable that would trigger that definition, though. And, of course, he was speaking for his client at the time. I will be curious to see how this case works out if SCOTUS does take it. The statutes need some re-writing, honestly.

Re:tortured analysis (2, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#27922187)

We had a symposium on this issue, and a lawyer talked from the plaintiff's side. Much of their theory dealt with the length of the cable, based purely on a statutory reading. While I understand he has a duty to attempt to apply the statute in his client's best interests, his construction made little sense. Still, he had to rely on that construction to get around Sony. Essentially, it is legal for me to time shift in my house. So why can't I put my time shift device outside of my house, say in a warehouse with a lot of other time shift devices? And what if I make those time shift devices virtual devices on a single server? His point was that moving the device outside of my house was the difference-it became a transmission. He could not provide a length of cable that would trigger that definition, though. And, of course, he was speaking for his client at the time. I will be curious to see how this case works out if SCOTUS does take it. The statutes need some re-writing, honestly.

Yes but the whole time-shifting issue has to do with fair use, which was taken out of the case by stipulation. Note that the 2nd Circuit decision doesn't discuss that issue at all other than to mention that the issue is not before them.

Re:tortured analysis (4, Informative)

kilgortrout (674919) | more than 4 years ago | (#27924423)

According to the Second Circuit's opinion(yes, I did read it), this is not a transmission issue per se. The time shifted program was clearly transmitted within the meaning of the Copyright Act; that was not disputed. The issue is whether the that transmission was to the public as is required by the relevant provision of the Copyright Act at issue in this case. Considering the technology used by the defendant, the Court held that it was not a public transmission relying heavily on the fact that the program is recorded at the customer's direction and the customer's requested program is encoded on the server so only the customer's cable box can retrieve it. So the scenarios you spin would all seem permitted by this holding as there is no transmission to the public in any of them that I can see.

Re:tortured analysis (1)

Jeff DeMaagd (2015) | more than 4 years ago | (#27924487)

The length of the cord doesn't seem to be that relevant. To me, I would think the fact that the signal crosses property lines might be enough to call it broadcasting, and it's not a device that the user owns or maintains.

I think the media industries need to lighten up on it though.

MPAA incentive to limit access (2, Insightful)

Glass Goldfish (1492293) | more than 4 years ago | (#27922129)

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.

Re:MPAA incentive to limit access (2, Interesting)

Gizzmonic (412910) | more than 4 years ago | (#27922211)

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 this is true, then why are almost all new movies coming out with free MPEG4 copies now?

Sorry, I have grave concerns about the MPAA but your knee-jerk cynicism is unwarranted. DRM is already out of the equation WRT online music. I don't know if it will disappear from movies, but including a free MPEG4 with new movies is a step in the right direction.

Re:MPAA incentive to limit access (1)

TypoNAM (695420) | more than 4 years ago | (#27922657)

If this is true, then why are almost all new movies coming out with free MPEG4 copies now?

Umm they're not free since they're usually at least ten dollars extra for that combo edition and they're time limited licensed DRM crap that uses Microsoft's Media Player DRM at that.

Terminator 2: Judgment Day Extreme Edition and Live Free or Die Hard are both examples that I know of that had came with an HD resolution MPEG version of the movie that had a very limited time span that you could actually watch it since the license server only ran for a year and/or valid license after the DVD release.

After that limited time you couldn't watch your "digital copy" on your computer (funny I thought DVDs were already digital...) then those discs became virtually useless unless you figured out a way to strip the DRM from them.

Re:MPAA incentive to limit access (0)

Anonymous Coward | more than 4 years ago | (#27923169)

My copy of batman forever came with a code to let you unlock and keep a copy on your ipod and itunes. No expiration.

Re:MPAA incentive to limit access (0)

Anonymous Coward | more than 4 years ago | (#27924067)

Woops, The Dark Knight. Not batman forever.

Re:MPAA incentive to limit access (1)

Gizzmonic (412910) | more than 4 years ago | (#27923189)

Umm they're not free since they're usually at least ten dollars extra for that combo edition and they're time limited licensed DRM crap that uses Microsoft's Media Player DRM at that.

No. Try The Dark Knight, Wall: E and other recent releases. They all provide a free iTunes download of the movie. It uses iTunes DRM but it's quite convenient if you have an iPod or iPhone.

Re:MPAA incentive to limit access (3, Insightful)

SirGarlon (845873) | more than 4 years ago | (#27922271)

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.

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:MPAA incentive to limit access (1)

Ioldanach (88584) | more than 4 years ago | (#27922693)

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).

Optimist. ... where you have to pay for the movie EVERY time you see it. And, as icing, your device tells them who watched it so they can send them marketing to get them to watch more things you have to pay for.

Re:MPAA incentive to limit access (2, Funny)

cool_story_bro (1522525) | more than 4 years ago | (#27924697)

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).

Optimist. ... where you have to pay for the movie EVERY time you see it. And, as icing, your device tells them who watched it so they can send them marketing to get them to watch more things you have to pay for.

Optimist... they want you to have to pay and get ABSOLUTELY NOTHING in return

Re:MPAA incentive to limit access (1)

Ioldanach (88584) | more than 4 years ago | (#27924763)

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).

Optimist. ... where you have to pay for the movie EVERY time you see it. And, as icing, your device tells them who watched it so they can send them marketing to get them to watch more things you have to pay for.

Optimist... they want you to have to pay and get ABSOLUTELY NOTHING in return

Optimist... (Yeah, I'm calling myself an optimist too)... they want the government to enforce a tax on you so you pay them no matter what you do and they can give you whatever they feel like, up to and including nothing, in return.

Re:MPAA incentive to limit access (1)

Lumpy (12016) | more than 4 years ago | (#27922403)

The MPAA simply shoves me further and further to pirating their movies ant TV shows. I have a Mythbox with 3 tuners recording my TV. BUT, because they are being pricks, I also get several Tv shows from eztv.it on a regular basis. 90% of the time those I download are far better quality than the ones I record myself. I get Merlin in HD from eztv.it where I can only get it in fuzzy analog SD here locally. Plus there are Tv shows I cant get in any way other than downloading them.

Top gear for instance. It kicks the crap out of the drooling moron Car tv shows we have here in the states.

Could it be they want a definitive ruling? (3, Insightful)

SirGarlon (845873) | more than 4 years ago | (#27922181)

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.

Re:Could it be they want a definitive ruling? (0)

Anonymous Coward | more than 4 years ago | (#27922623)

In the long run such a ruling would reduce the amount of litigation surrounding (re)distribution of movies & music.

The lawyers would never go for that.

Amicus curiae (1)

AnotherBlackHat (265897) | more than 4 years ago | (#27922219)

Maybe it's too late, but I wonder what would have happened if someone had filed an Amicus curiae in this case stating either (or both) of the low hanging fruit defenses.

Re:Amicus curiae (4, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#27922277)

I wonder what would have happened if someone had filed an Amicus curiae in this case stating either (or both) of the low hanging fruit defenses.

That would be out of the question. If the parties stipulated to waive certain issues, an amicus could not re-inject it.

This isn't Personal USE, this is redistribution. (3, Insightful)

barfy (256323) | more than 4 years ago | (#27922237)

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:This isn't Personal USE, this is redistribution (4, Interesting)

characterZer0 (138196) | more than 4 years ago | (#27923053)

Everybody agrees that I can have a DVR in my house. Is it okay if I move it to my garage?

Is it okay if I buy a plot of land and get satellite and put my DVR there, and relay to my house over the Internet?

Is it okay if I let a friend put his dish and his DVR on my plot of land?

What if I charge some strangers to put their dishes and DVR on my land?

What if I have 200 people, but I rent DVRs to them?

What if I replace the hard drives in individual DVRs with a huge RAID array?

What if I virtualize the DVRs?

What if I sell the satellite connection to begin with?

At what point is it no longer legal?

Re:This isn't Personal USE, this is redistribution (1)

C10H14N2 (640033) | more than 4 years ago | (#27924761)

At what point is it no longer legal?

Here: If I sell the satellite connection to begin with?

When you become the actual distributor of content. In all the other cases, you're essentially an apartment landlord renting furnished apartments with TV and VCR, but requiring the renters to establish their own cable accounts.

Re:This isn't Personal USE, this is redistribution (1)

characterZer0 (138196) | more than 4 years ago | (#27925513)

When I wrote "if I sell the satellite connection to begin with" my intention was to ask at what point it becomes illegal for an organization legally selling the satellite connections under contract with the media providers to perform these steps.

Re:This isn't Personal USE, this is redistribution (2, Insightful)

fm6 (162816) | more than 4 years ago | (#27924839)

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:This isn't Personal USE, this is redistribution (1)

roccomaglio (520780) | more than 4 years ago | (#27924865)

We need a -1 Wrong moderation.

I think we need a -1 factually incorrect modification and if you use use it you can be asked to back it up.

Re:This isn't Personal USE, this is redistribution (1)

noidentity (188756) | more than 4 years ago | (#27925141)

It's illegal at whatever point it increases your enjoyment, because you shouldn't get anything without paying them more.

Re:This isn't Personal USE, this is redistribution (1)

Bill_the_Engineer (772575) | more than 4 years ago | (#27923595)

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.

View something "on demand" is an example of distributing video. By the way, Cartoon Network already have such agreements in place with Comcast that do not offer centralized recording of shows.

However, this is more about moving the storage device from the subscriber's home to a central server. My understanding is the set-top box still operates as a DVR and you only have access to the shows that you asked to be recorded prior or during its broadcast. Since you contracted the cable provider to record the show for you, and you are the only one able to view the show then the cable company is TRANSPORTING your recording to you for your viewing.

Now if the cable company recorded all the shows in anticipation that you may want to view it later (without your active participation) than that would be distribution, since they are creating a product with the intent to make available to potential viewers.

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!

Not really. This is the same as you recording the show on a VCR. In fact, this helps Cartoon Network since their rating is based on your desire to record or have your television tuned to their broadcast not by you actually watching the show. Not that Cartoon Network has that much value to lose. ;)

What is old is now new (0)

Anonymous Coward | more than 4 years ago | (#27922267)

Back in the 90s I would trade "bootleg" music with people for free via ads in magazines where we would recycle envelopes and mail tapes to each other.

Today, I have a Netflix subscription where I pay to mail recycled envelopes with Blue-Ray/DVDs (never underestimate the bandwith of a truck full of tapes).

Today, I trade "bootleg" music and video via bittorent.

Tomorrow, I'll pay for such a service.

Personally, I find the underground method more fun, and I expect lower quality from the underground, I expect higher quality from the "above ground" methods. The quality is spotty in both avenues, and the cost is the same or actually more for the underground methods (storage, time, electricity, etc).

Is this a real case? (2, Interesting)

AnotherBlackHat (265897) | more than 4 years ago | (#27922351)

I thought the US supreme court only heard cases that were real.
If both sides in this case waived reasonable arguments, then it sounds to me like a show trial designed specifically to get a ruling.

This is why I have ~10 VCRs (1)

commodore64_love (1445365) | more than 4 years ago | (#27922373)

This is why over the last year, I've acquired around 10 Super VHS VCRs (total cost around $1000). Two I'm using right now, and the rest are kept as spares. I was afraid folks like the MPAA would make it impossible to time-shift our favorite shows, and this case demonstrates my fear is slowly-but-surely materializing. The old analog VCRs ar not under anyone's control but my own. They allow me to record DVD quality video directly off digital television, so that I can view my favorite shows whenever I feel like it and without restriction.

They can take our lives but they can never take away our freedom!.....er, VCRs.

Re:This is why I have ~10 VCRs (3, Insightful)

GigsVT (208848) | more than 4 years ago | (#27922511)

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:This is why I have ~10 VCRs (1)

commodore64_love (1445365) | more than 4 years ago | (#27923091)

And how well do analog capture cards work when folks like the MPAA turn-on the "don't record" flag? Not at all. Plus a Media PC's not as convenient as a VCR. It's big and bulky, and hard to move. With a VCR I can grab the just-recorded tape, drive it over to my parents' or brother's house, and conveniently watch it on their TV. It's portable and universal. Oh yes, you'll probably say something like "Use DVD-R". Well my parents don't own a DVD player, and even if they did I don't feel like burning through $10 worth of blanks every week. Tapes are reusable and therefore much cheaper.

Bottom Line: Even though I'm an electrical engineer, and I love gadgets, I don't abandon old technologies if the replacement technology is inferior. That's why I still use pencil-and-paper notebooks for my engineering lab notes instead of slow, kludgy e-pads. Same with your proposed media PC - it's inferior to the ease of use of cheap VCRs and swappable magnetic tape.

>>>you are nostalgic for the 80s

Wrong decade. 1975. :-)

Re:This is why I have ~10 VCRs (1)

Quiet_Desperation (858215) | more than 4 years ago | (#27923157)

I don't feel like burning through $10 worth of blanks every week. Tapes are reusable and therefore much cheaper.

DVD-RW? ;-)

I use CD-RW to make random MP3 discs every week for out in the car. Some of them are on their hundredth erase/write cycle.

Re:This is why I have ~10 VCRs (4, Informative)

LordKazan (558383) | more than 4 years ago | (#27923849)

I was going to moderate this thread, but the egregiously wrong information in your post made me stop and comment.

And how well do analog capture cards work when folks like the MPAA turn-on the "don't record" flag? Not at all

WRONG. The "Broadcast Flag" [wikipedia.org] was never instituted - it is a purely optional (and almost universally ignored by non-cable-company-hardware) standard. Furthermore it was digital only - so all your NTSC adapters that work with cable continue to work fine. Second no ATSC/QAM tuner i've ever seen even offered support for this hardly-implemented non-mandated anti-fair-use idea.

My mythBox is about the size of two VCRs, has 1 TB of storage, is attached to my 100base ethernet, I can manage my recordings over the web. I can use Hulu on it. I could (and might) install Boxee (i'd prefer to use mythVodka if they ever get that plugin working well). And has numerous other abilities that your two VCRs just cannot do.... MAME [wikipedia.org] anyone?

Re:This is why I have ~10 VCRs (1)

ericrost (1049312) | more than 4 years ago | (#27924395)

So you spent $1000 on VCRs to save $10 on buying some DVD-RW's and $40 to buy your parents a DVD player?

Re:This is why I have ~10 VCRs (1)

ericrost (1049312) | more than 4 years ago | (#27922681)

Build a MythTV box, install boxee as well and move out of the dark ages brother!

http://www.mythbuntu.org/ [mythbuntu.org]
http://www.boxee.tv/ [boxee.tv]

Recommended tuner for mythbuntu:
http://www.hauppauge.com/site/products/data_hvr2250.html [hauppauge.com]

Recommended sound card:
http://www.turtlebeach.com/products/riviera/home.aspx [turtlebeach.com]

Re:This is why I have ~10 VCRs (1)

commodore64_love (1445365) | more than 4 years ago | (#27924199)

Disagree. See my post above why I think Tapes are superior to Media PCs.

Re:This is why I have ~10 VCRs (1)

ericrost (1049312) | more than 4 years ago | (#27924435)

See my reply above to see why you're misguided. DVD players (for your parents) cost $40 now. DVD-RWs cost ~$2 apiece if you don't hunt around for cheapies. MythTV didn't obey the "broadcast flag" even the 1 time it was "accidentally" set. Its fairly obtuse to keep trying to hunt up blank tapes (that no one manufactures anymore) that wear out and degrade.

However, you can only lead a horse to water.

Slave to the idiot box. (0)

Anonymous Coward | more than 4 years ago | (#27924501)

I find it disturbing you think watching pop culture kitsch is a topic so important you stockpile gear like one would for Armageddon...

Re:This is why I have ~10 VCRs (1)

HTH NE1 (675604) | more than 4 years ago | (#27924555)

This is why over the last year, I've acquired around 10 Super VHS VCRs (total cost around $1000).

Where did you find them so cheap these days? I haven't found any new much less than $300 each. D-VHS decks tend to play S-VHS tapes only at VHS quality.

MP3.com (2, Interesting)

GigsVT (208848) | more than 4 years ago | (#27922379)

Why is it OK for cable companies to "store video for later use by subscribers"... but MP3.com was shut down for doing the exact same thing?

I guess MP3.com needed better lobbyists.

Re:MP3.com (1)

NoStarchPlox (1552983) | more than 4 years ago | (#27923361)

Why is it OK for cable companies to "store video for later use by subscribers"... but MP3.com was shut down for doing the exact same thing?

You mean other than the fact that cable companies actually license the content they broadcast and MP3.com didn't? Yeah, I'm sure it wasn't that at all.

So they want us to pay twice for the same content (1)

KarlIsNotMyName (1529477) | more than 4 years ago | (#27922407)

What else is new?

All I saw was reuse and yet another way of recording something. If you've already had legal access to a TV series or whatever, you've already seen it, or at least have already paid for it in some way.

My 'writings' on the subject (5, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#27922517)

By the way, here's an article I wrote [blogspot.com] for the Journal of Internet Law, which discusses, at page 19, the main issue in the Cartoon Networks case which is "When is a copy transitory?" And here's an editorial comment [blogspot.com] I wrote for my blog after learning of the Cartoon Networks decision.

Re:My 'writings' on the subject (1, Interesting)

Anonymous Coward | more than 4 years ago | (#27923283)

After reading NYCL's blogspot article, I got to wondering why smaller recording studios and film production studios have not banned together to file a class action suit against the MPAA/RIAA for antitrust issues, or anti-competitve business practices?

While I cannot cite any specific cases, I would imagine that there are at least a few studios whose business models involve using a GNU-style license to their content (i.e. produce and distribute their content freely and try to make money by encouraging participation at live events), and that the RIAA/MPAA cartel behaviors are destroying the reputations of small businesses that get lumped in with the RIAA/MPAA because of the broadly defined 'industries' these organization pretend to fully represent.

Perhaps my thinking is incorrect on this subject, but it seems similar to a situation where 10 employees at local business, which employees 10,000 people, were to claim that they represented some sort of "employee union." Now if these 10 individuals began making deals with managemnt and filing suits on behalf of employees who never gave them authorization to do so, wouldn't those employees have some sort of recourse by which to prevent these rogue individuals from bringing down the entire company? I am sure there are laws on the books to prevent this scenario from happening, so I can't see why these same laws (or at least the logic behind them) can't also apply to an entire market/industry.

Can anyone explain this to me?

Re:My 'writings' on the subject (2, Insightful)

HBI (604924) | more than 4 years ago | (#27923973)

Ray:

I read your article. I hope you feel good about the work you are doing in this area, because you are rendering a significant service to your fellow countrymen. You are moving the United States closer to justice on this particular issue with your efforts.

Thank you.

cable == time shifter? (0)

Anonymous Coward | more than 4 years ago | (#27922711)

And I always thought a cable IS a time-shifter... you can even compute the data-capacity (in Gbytes contained) per unit length, by using the bandwidth, cable length, and the velocity of the signal.

Fair Use? (2, Interesting)

jvkjvk (102057) | more than 4 years ago | (#27922787)

I think that they probably waived fair use because they, themselves don't want to strengthen fair use case laws.

Perhaps they have some content themselves that they don't want other people sharing [full, entire] version of their stuff through time shifting mechanisms.

I mean, if it's fair use that a cable network can time shift stuff for you then logically other companies and individuals can also get into that game.

And let me tell you, my friends, that way least to anarchy! Or at least a lot less profit for both cable operators as well as content holding companies.

VOD vs DVR (4, Insightful)

vlm (69642) | more than 4 years ago | (#27922799)

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?

Re:VOD vs DVR (0)

Anonymous Coward | more than 4 years ago | (#27925537)

"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."

It's not what *they* want to broadcast, but what their parent company *USA* channel wants to be broadcasted on SciFi. That's why we are tortured with Wrestling on SciFi.

Re:VOD vs DVR (1)

nine-times (778537) | more than 4 years ago | (#27925599)

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.

Why not drop the channel end of things? I mean, I know why. It's a money maker. But as a customer, I'd rather ditch DVR and channels and just have access to everything as VOD.

It's time to RENAME copyright (1, Insightful)

Anonymous Coward | more than 4 years ago | (#27922949)

Congress shall have the power .. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

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.

Hotel-related cases (4, Interesting)

Animats (122034) | more than 4 years ago | (#27923085)

I think there was at least one case on this involving hotels. Back in the early VHS era, many hotels provided VHS players for guests, and lent out tapes at the front desk. No problem there, at least in the US; that's just the "first sale" doctrine.

Better hotels would deliver tapes via room service. This was labor-intensive. Some hotel then realized that it would easier to centralize all the VCRs, and just have someone in an office put the requested tape in the VCR when requested. This was the beginning of "video on demand".

That was held not to be a copyright infringement, even though the hotel was in a sense "distributing" the content.

Now, of course, there are "video on demand" systems for hotels. But they usually have contractual relationships with all their sources; they're not just buying VHS tapes at retail.

Follow the money! (2, Insightful)

rickb928 (945187) | more than 4 years ago | (#27923975)

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.

I'm surprised at the programmers here! (5, Insightful)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#27924441)

I'm surprised that there isn't more interest in the main issue in the case, the question of what is a "transitory" copy.... especially among you software developers out there!

Re:I'm surprised at the programmers here! (1)

pnuema (523776) | more than 4 years ago | (#27924845)

It's the summary. I had to read half of the comments before I figured out this article was about moving DVR HD's out of the home.

Yes, I'm a typical slashdotter. I did not read the article.

It's about precedent! (1)

mattt79 (1005999) | more than 4 years ago | (#27924529)

The cable company is waiving the "Fair Use" defense because they don't want to win a case that then strengthens the "Betamax" decision.

I'm willing to store your shows for you. (0)

Anonymous Coward | more than 4 years ago | (#27924705)

Just drop by your Blu-Ray collections to me. I will watch them occasionally to make sure they work.

I am surprised fair use was waived (1)

maroberts (15852) | more than 4 years ago | (#27924935)

If other issues do want to be raised, then I thought the defendant could simply give multiple reasons why the action cannot succeed, and ask the court to rule on them all....

It's tricky. (1)

Maxo-Texas (864189) | more than 4 years ago | (#27925427)

With a DVR and an external drive, I can keep a cable TV show as long as a video tape in theory.

If a cable company can keep a digital copy of "Wolverine" indefinately, then why would I buy a copy?

It seems reasonable to me that a cable company could save a copy of a show for a few days or a week but not indefinitely.

collusion and attempt to get advisory ruling? (0)

Anonymous Coward | more than 4 years ago | (#27925547)

Are these stipulations against fair use defense and secondary infringement claim an attempt to bypass the "case or controversy" doctrine and get what amounts an advisory ruling from the court about a somewhat different point of law than the case would more obviously turn on? Is that a common tactic? Should the court throw out the case on account of it?

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