Shots Across the Bow

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Downloading and Copyrights

I admit it; I download content all the time. I'm a "pirate." Of course, I mostly download current TV shows, since it's more convenient for me to watch them on my PC than using a VCR or Tivo, and with the wireless network in my house, way more flexible. I can watch Numb3rs when I want, where I want, and commercial free.

According to Hollywood, that makes me one of the bad guys.

But here's a puzzle for you:

I set my VCR and taped Numb3rs the other night because I was busy doing something else, and I wanted to watch the show. Yesterday, I sat down and watched the show.

Have I violated copyright law?

The obvious answer is no, absolutely not. Under fair use, I have the right to time shift programming. In fact, I have the right to archive that programming as long as it is for private, noncommercial use.

Now, suppose my son Adam also missed the show, and I give him the tape to watch in his bedroom.

Am I in trouble with the law now?

Nope. That is still fair use.

OK, now assume my son is deployed overseas, and I send him the tape through the mail since AFRTS isn't available.

I'm still in good shape with the law because it's still private, noncommercial use.

What if I convert the show from a VHS tape to a digital file and email it to him? Now, where do I stand?

I'm still OK, because the show was freely available over the air.

But what if I recordeed the exact same show off of Comcast Cable and then sent it on to my son. Now I'm a criminal. I'm doing the same thing I did with the video tape, yet according to the DMCA, I am now a pirate.

Something stinks here, doesn't it?

Don't even try to think logically about it because there is no logic. The only difference in the two scenarios is that I'm copying the content from a different signal. It's the exact same content, right down to the commercial breaks, but because the signal is different, I could go to jail.

How did we get to such a ridiculous place?

Well, you have to remember about 30 or so years ago, when people began buying VCRs in large numbers. At the time, Hollywood studios opposed the VCR, saying it would devastate their revenues for reruns. If you remember, they even wanted to put a special 'piracy' tax on video cassettes to compensate them for their lost revenue.

They lost the fight.

Then video stores began renting out copies of movies, and Hollywood had another conniption. They sued, saying that their rights were being infringed, because nobody would buy a movie they could rent.

They lost that fight as well.

Remember when movies started coming out with different pricing structures? Some would be priced to sell to the consumer, at $25 or so, while the popular ones would be priced at $100 or so, for the rental market. They soaked the rental store owner untill they figured out that people would in fact buy movies even if they could rent them, as long as the movies were good.

Then came the satellite dishes. Not digital, like DirecTV, but the big, 10' analog jobs that moved with a hand crank. Cable was hard to find outside of major cities, and for many people, the only way to get the programming was to buy a C-band dish, similar to the ones the cable companies and network affiliates used. Dish owners were able to pick up most cable channels, as well as network feeds and live feeds from sporting events, etc. (I can remember one Monday Night Football broadcast, hearing Don Meredith threaten to dangle Howard Cosell out the window of the broadcast booth by his ankles if Howard interrupted him one more time. This was during a commercial break and obviously didn't make the air. Unless you had a dish.)

Once the dish owner base grew large enough, the programmers started crying foul, claiming that using a satellite dish was piracy, and trying to haul the dish users into court. Their contention was that they owned the broadcast, and that their copyright meant that the simpple act of receiving an open signal was piracy. The son heard the book without paying for it. HBO and ESPN both began airing messages saying that their signal was only available to subscribers, and unauthorized reception was a crime. To make a low tech analogy, it would be like the copyright holder of a book saying that a father could not read a book aloud to his children because they hadn't paid for the book.

Pretty silly, right? They lost this fight as well.

The courts decided that if the signal was transmitted in the clear then those with satellite dishes were not breaking the law by receiving the signal. The courts went even further, and declared that if the programmers wanted to encrypt the signal to keep it secure, they could do so, but they were required to provide a way for dish owners to receive the programming at a cost commensurate with that of a cable customer.

In short, they had to play fair. The programmers began encrypting their signals, and selling decoders, and everybody was happy. In fact, most programmers significantly discounted satellite programming packages, recognizing the additional up front equipment expense faced by a dish owner. (In an amusing development, cable companies began suing satellite providers for encroaching on their territories, because suburban customers began installing dishes instead of cable, preferring the extra value the dish added. cf the Howard Cosell dangling by his ankles story) I can remember in 1995 paying just under $200 for an annual package that included everything, every movie channel, both east and west coast feeds, every sports channel, satellite radio, the whole shebang. You couldn't get basic cable for that.

While the courts had made their decisions, ruling against Hollywood irtually every time, the content providers refused to give up. They searched for a way to roll back the decisions, and with the DMCA, they found their vehicle.

While the law clearly indicates that taping or ripping a program off the air and then sharing it for noncommercial use is allowable,(Note carefully, I'm not talking about ripping TV shows from DVD collections, or movies, games, or music. I am specifically talking about TV shows ripped from a broadcast.) under the DMCA, if the signal has been encoded in any way, this is no longer true.

Now. let's examine this "encoding" thing. What does it mean? In the old C band days, it meant VideoCypher I and II and their successors, i.e. encryption specifically meant to prevent open broadcast. Today, however, we get a different answer. Today, "encoding" is defined as any signal processing whatsoever, including analog to digital conversion. And since this conversion lies at the heart of most cable systems and all satellite systems, if you have watch TV by any method other than rabbit ears, then by the DMCA definition, you can't copy diddly squat without their permission. In fact, the terms of the DMCA are so broad that TIVOing a show is illegal unless you use a DVR approved by the content provider. And you might as well forget the VCR, pal.

It gets worse.

Our caring government, who wants nothing but the best for us, is requiring that all broadcast programming be done in High Definition, possibly as early as 2008. HDTV is, you guessed it, a digital signal and therefore "encoded." That means that all programming, whether over the air, cable, or satellite, will meet the definition of protected content. And if you think I'm exagerrating the threat, programming providers are pushing for the adoption of a "broadcast flag" that will tell your modern HDTV receiver to prevent any recording of the content whatsoever, even on authorized equipment, unless the copyright holder authorizes it.

Between mandating HDTV and the DMCA, not only will the program providers have reversed their losses from the C band wars, they will have gone a lot further, basically eliminating the Fair Use provisions of copyright law. They will have complete control over what you watch, when you watch it, whether you can skip the commercials, and the equipment you watch it on.

How does pay per view everything sound? With commercials no less!

The day I can no longer control what I want to watch, when I want to watch it, and where, that's the day the TV becomes a damn fine boat anchor, and I get a new aquarium.
Posted by Rich
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you have powerful people in powerful places that are on your side.

Did you catch Bill gate's vision of the world. All downloadable on demand.

Consumers still also have a powerful vote (their money.)

Secondly, the coming war between dvd-blue and hd-dvd could strengthen microsoft's hand.
Posted by cube  on  01/09  at  03:38 PM

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