In a decision that has triggered much debate, a Federal judge ruled recently that Cablevision’s Digital Video Recorder system infringes the copyrights in TV programs. It’s an unusual decision that deserves some unpacking.
First, some background. The case concerned Digital Video Recorder (DVR) technology, which lets cable TV customers record shows in digital storage and watch them later. TiVo is the best-known DVR technology, but many cable companies offer DVR-enabled set-top boxes.
Most cable-company DVRs are delivered as shiny set-top boxes which contain a computer programmed to store and replay programming, using an onboard hard disc drive for storage. The judge called this a Set-Top Storage DVR, or STS-DVR.
Cablevision’s system worked differently. Rather than putting a computer and hard drive into every consumer’s set-top box, Cablevision implemented the DVR functionality in its own data center. Everything looked the same to the user: you pushed buttons on a remote control to tell the system what to record, and to replay it later. The main difference is that rather than storing your recordings in a hard drive in your set-top box, Cablevision’s system stored them in a region allocated for you in some big storage server in Cablevision’s data center. The judge called this a Remote Storage DVR, or RS-DVR.
STS-DVRs are very similar to VCRs, which the Supreme Court found to be legal, so STS-DVRs are probably okay. Yet the judge found the RS-DVR to be infringing. How did he reach this conclusion?
For starters, the judge geeked out on the technical details. The first part of the opinion describes Cablevision’s implementation in great detail – I’m a techie, and it’s more detail than even I want to know. Only after unloading these details does the judge get around, on page 18 of the opinion, to the kind of procedural background that normally starts on page one or two of an opinion.
This matters because the judge’s ruling seems to hinge on the degree of similarity between RS-DVRs and STS-DVRs. By diving into the details, the judge finds many points of difference, which he uses to justify giving the two types of DVRs different legal treatment. Here’s an example (pp. 25-26):
In any event, Cablevision’s attempt to analogize the RS-DVR to the STS-DVR fails. The RS-DVD may have the look and feel of an STS-DVR … but “under the hood” the two types of DVRs are vastly different. For example, to effectuate the RS-DVR, Cablevision must reconfigure the linear channel programming signals received at its head-end by splitting the APS into a second stream, reformatting it through clamping, and routing it to the Arroyo servers. The STS-DVR does not require these activities. The STS-DVR can record directly to the hard drive located within the set-top box itself; it does not need the complex computer network and constant monitoring by Cablevision personnel necessary for the RS-DVR to record and store programming.
The judge sees the STS-DVR as simpler than the RS-DVR. Perhaps this is because he didn’t go “under the hood” in the STS-DVR, where he would have found a complicated computer system with its own internal stream processing, reformatting, and internal data transmission facilities, as well as complex software to control these functions. It’s not the exact same design as in the RS-DVR, but it’s closer than the judge seems to think.
All of this may have less impact than you might expect, because of the odd way the case was framed. Cablevision, for reasons known only to itself, had waived any fair use arguments, in exchange for the plaintiffs giving up any indirect liability claims (i.e., any claims that Cablevision was enabling infringement by its customers). What remained was a direct infringement claim against Cablevision – a claim that Cablevision itself (rather than its customers) was making copies of the programs – to which Cablevision was not allowed to raise a fair use defense.
The question, in other words, was who was recording the programming. Was Cablevision doing the recording, or were its customers doing the recording? The customers, by using their remote controls to navigate through on-screen menus, directed the technology to record certain programs, and controlled the playback. But the equipment that carried out those commands was owned by Cablevision and (mostly) located in Cablevision buildings. So who was doing the recording? The question doesn’t have a simple answer that I can see.
This general issue of who is responsible for the actions of complex computer systems crops up surprisingly
often in law and policy disputes. There doesn’t seem to be a coherent theory about it, which is too bad, because it will only become more important as systems get more complicated and more tightly intereconnected.
Wow cablevision broke another law, there’s a shocker.
In which case, it seems the RS-DVR is safe after all — so long as the cable company complies with DMCA takedown requests and nukes a customer’s saved copy of that new Stargate episode if requested to by whoever has the copyright…
It’s not just the Microsoft/Google office apps potentially under the gun here, it also would have implications for sites like YouTube, since they’re operating under essentially the same principle (“Customers provide data and indicate how that data is allowed to be distributed, and we store the data and distribute it how they told us to. It’s not our fault if they lie to us!”).
This is priceless. The cartel inflicts two self-inflicted gunshot wounds to its feet with one bullet this time!
First, they outlaw the RS-DVR, which would much more easily let them do evil things like arbitrarily restrict what you can keep and for how long, commercial skipping, and the like, or make some shows “pay per view” when watched other than the original airing. All of this when ruling that a cable company that was specifically authorized to distribute copyrighted programming to viewers somehow infringed the copyrights on that programming by … distributing copies to viewers.
Second, by doing so their left hand (Hollywood) threatens the lucrative “software as a service” business model being aggressively promoted by their right hand (Microsoft), whereby M$ would take your copy of Word away from you and then rent it back to you, and instead of buying some software functionality once, paying say $100, and having its perpetual use and only having to pay more if you wanted to upgrade, you’d have to pay say $10/month to keep using it, which gives them a free extra $20 by the end of the first year and $120 of pure gravy every subsequent year you used it. (Of course, the argument is that this lets you get essential updates and other upgrades for free, but when was the last time any of your commercial software showed true improvements rather than just gratuitous and often annoying changes and a trade of one set of bugs you’d learned the workarounds for for a whole new set? And it’s not like Word in particular doesn’t try to use gratuitous format changes and network effects to create an upgrade treadmill already, anyway. And the free updates would no doubt be forced updates, letting them redact useful functionality to create more artificial scarcity. Change it so you can’t use it to badmouth the government (or M$). One day you try to italicize a paragraph and get a surprise popup saying they now want you to pay $.99 a month extra for the privilege of using italics, which used to be free. And so forth. Of course, the whole scheme is pure folly anyway. People budget a certain amount of their income for entertainment and for productivity software, and if the stuff costs more they’ll get less of it and the cartel will get exactly as much money as they did before. Oh, but they’ll be able to wish some magic “growth” figures into existence to show their stockholders by the same sort of mathematical sleight of hand as if Toyota claimed a million-fold jump in “units sold” by suddenly counting individual screws and gears as “units” instead of whole automobiles. Only without it being so transparently obvious to the stockholders.)
http://www.dklevine.com/general/intellectual/against.htm
Artificial scarcity is the root of all evil.
Progress clause should have read “Congress shall have Power … [t]o promote the Progress of Science and useful Arts, by securing for all Times to the People the affirmative right to Distribute and Disclose all Writings and Discoveries with Laws against Enforcement of Secrecy and the Restraint of Trade.”
That little change 300 years ago would have made a huge difference now. In combination with the First Amendment, all private or government restriction on freedom of communication would have been verboten.
I have to say, this is a surprisingly dumb business plan.
If you’re going to sell a set-top box that potentially angers copyright holders, do you really want to create a centralized architecture that involves you in the actual copying and storage?
Having that level of control over your own users is legally dangerous. You could be forced by a lawsuit to restrict the device’s functionality, or to monitor users or enforce usage rules—e.g., prevent too much commercial skipping. You could add fingerprints at point of distribution to trace captured video that ends up onfile sharing networks. All this would drive away customers and seriously increase your operating costs.
Having the power to monitor or control users opens up the possibility of a vicarious infringement claim. If you could add fingerprints, and Universal wants you to add fingerprints, and you don’t add fingerprints, then you had the power to stop infringment from which you financially benefit. This can be used as a crowbar to force you to rearchitect your system—if you made the mistake of making it centralized.
Finally, there is a direct act of copying for which you can be sued. The industry can not affordably sue all your users, but you’re a big single target with money. These people obviously thought they’d save money by centralizing their architecture but didn’t realize the inherent legal risk of that architecture.
Finally, I’m surprised that the industry is dumb enough to sue over this. If you were the MPAA, and you had the choice between the public owning 10 million STS-DVRs and 10 million RS-DVRs, wouldn’t you go for the RS-DVRs and their greater potential for enforcing usage policy? It sounds like they’re forcing the industry to stick with the devices that give them the least control over the user.
I agree with Juan’s trepidation about how this might impact the “software as a service” market. As if corporate managers don’t already have enough to worry about regarding potential liability for what employees do or say using corporate systems, will vendors of hosted applications now be be liable for what gets stored by corporate users on their systems? (For an example of such a system, see: http://www.ddmcd.com/salesforce.html )
I just don’t understand this:
If you pay a monthly fee for cable TV and they play a show you can watch it, or if you can’t then you record it and watch it later but you have already paid to see it regardless of the fact that you might have missed the original airing.
So what exactly is that copyright thing again?
Paul’s argument got me thinking: how will this affect the “Software as a Service” concept? So, working with certain data is legal if you do it in your local machine, but illegal if you use a browser to instruct a remote server farm to do it for you? Perhaps Google, Microsoft and the rest should be looking into this, as they all are building huge datacentres to provide precisely that functionality. They might find themselves in Cablevision’s plight not far in the future.
Along the lines of Mark Levitt’s comment, I wonder what the judge would make of a system where each show went to the consumer’s house to be digitized, but the home recorder had only a relatively small storage cache (say 10 hours of programming), and shipped its excess data to network-attached storage maintained by the cable company. (Algorithms for potentially-lossy compression on the NAS or in the transmission process by detecting identical or near-identical sequences in different stored files are left as an exercise for the reader.)
What this fundamentally shows, of course, is how broken copyright law is in the hands of the current judiciary…
I wonder if a distributed peer to peer storage system for a “STS” DVR would be legal.
I mean, I can imagine a system where the DVRs are all networked and recorded shows are stiped across all of the DVRs on the network, but the pieces are encrypted such that only the people who’ve recorded them can decrypt them.
In theory, that would give you an amlost limitless amount of storage (assuming everyone doesn’t keep their DVRs full all the time) without there being a central storage facility.
What’s so amusing about this is that the copyright holders are going to wind up with the worst possible outcome, at least as far as their own interests are concerned. The net result of this case is that STS-DVRs will be legal, but the RS-DVR will be illegal. This is exactly the wrong way around from the copyright holder’s point of view. As has been discussed numerous times on this blog, the STS-DVR is always going to be hackable, since the end user actually has the copy in his possession. (And, for example, Tivo has definitely been hacked.) While it may be possible to hack the RS-DVR as well, it at least stands a fighting chance of keeping the data secret.
It’s an opera buffa.
I’m surprised you didn’t mention the mp3.com “music locker” system which was shut down on similar grounds: it’s legal for you to rip a CD, but it ‘s apparently not legal for you to pay mp3.com to rip the CD on your behalf. Same result, different legality.
Just another example of technology getting ahead of the law. Of course, the irony here is that Cablevision’s DVRs offered the content cabal a greater level of control over viewing content than a set-top PVR does, and far more than a homebuilt PVR does. You’d think the content cabal would be happy to try to get cable customers hooked on a service that they could eventually mold into the pay-per-view model.