The biggest TiVo in the world
In my post on Cablevision and the infinite TiVo, I argued that a proposed virtual-DVR service could be a Very Bad Thing for the film and television industry, and anyone who aspires to work in it.
But as a consumer of content, I would love it. That’s why studios, networks, guilds and operators need to keep working on ways to make it legal and cheap to watch any show, any time.
They just need to call it what it actually is: video on demand.
Much of the criticism in the ensuing comments came from one Anonymous poster, who claimed he wasn’t a lawyer, but sure wrote like one. And he didn’t deny that he worked for Cablevision, so it’s no surprise he had a strong opinion and very specific knowledge of the legal proceedings thus far:
If you read the 2nd Circuit holding you will see that it is simply not the case that the holding could inadvertently extend to the very different system you imagine. If the Supreme Court hears the case, neither will their holding inadvertently extend to completely different systems. Agree with them or not, the justices are hardly a group of fools. The Court is certain to tailor the decision quite deliberately.
That the system you imagine is achievable is irrelevant. Cases get decided based on the facts of what parties actually do, not based upon completely different facts that others concoct, regardless of whether those concocted facts are achievable.
But of course, the point of a blog is conjecture and analysis. And the job of a screenwriter is to ask what-if questions. What if the Yellowstone supervolcano exploded? What if monsters were afraid of us? What if SkyNet developed consciousness?
I’m certainly not qualified to argue about the language of the 2nd Court holding. But I’m very qualified to ask what-if questions. Nothing about the system I outlined in my original post is crazy. In fact, it’s all so reasonable that it seems very likely to be implemented, if not by Cablevision, then by another provider.
Anonymous continues:
Let’s also remember that even when major changes are faced, the only thing that can be assured is that there will be widespread predictions of doom. Doom actually occurring is much less frequent. The Betamax case is an excellent example of such a change that spawned similar predictions of doom for the film and television industry, yet went on to have the exact opposite effect, vastly increasing revenues into that industry.
Revenues increased because copyright holders suddenly had an entirely new market for their product, which had hitherto been sitting on a shelf. The system I foresee Cablevision building wouldn’t create a new market. It would redefine an existing market (video on demand) and let them keep the profit for themselves.
I disagreed with almost everything Anonymous wrote, but it was a pleasure having such an eloquent spokesperson for the other side. I was serious when I said he/she needed to get a blog of his/her own.
Sérgio Carvalho wonders if we’re just putting off the inevitable:
You do understand that if personal DVRs are allowed, forbidding Cablevision’s “community disk” is a stopgap measure. It buys about ten to fifteen years. Moore’s law (applied to physical storage) coupled with codec evolution means personal DVRs will reach a virtually unlimited storage capacity at some point in the near future.
There’s a big difference between unlimited storage capacity and unlimited access to all television aired. Even if you had an infinitely big hard drive, you couldn’t simultaneously record every channel; there isn’t an infinitely big cable coming into your house. No matter what the storage capacity, a personal DVR is still limited to recording those things you’re interested in, or think you might ever be interested in.
Nick offers a perspective from north of the border.
In fact, in Canada, where the laws are different (though no less draconian in several ways) many cable companies are already offering a service like this: you can watch any show in an on-demand fashion if it is currently airing, but eventually those shows cycle out of your list of available shows.
The U.K. has a similar system, and it sounds useful. It’s the kind of thing networks and providers can offer jointly, with profit for both. While some WGA’ers disagree with me, I think it’s reasonable to define a window of time in which an episode is considered “new,” and doesn’t require any additional payment.1
No matter what happens with the Supreme Court case, I think you’re going to see the clash between networks and providers become a much more public brawl in the next few years. Recently, Viacom threatened to pull 19 channels from Time Warner Cable when they couldn’t reach a deal. They played rough, with print ads featuring a crying Dora, and ultimately got the deal done.
If a company like Viacom decided they didn’t want their channels recorded on Cablevision’s DVR service, they could make that part of the deal — or walk. Cable isn’t a monopoly anymore. While Viacom would lose a lot of money, they don’t need one cable company as much as that one company needs them.
But again, the smarter solution is to work together find ways to let consumers watch any show at any time for the right price. Sure: easier said than done. But that’s the only way to ensure sustainability.
- To me, the window is a week. Maybe ten days. ↩
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February 3rd, 2009 at 6:31 am
So let’s take a moment here and discuss “a la carte” pricing of cable services. It doesn’t get much press and the major conglom’s consistantly lobby against it in congress when a bill comes up.
It’s worth mentioning that the cable operators stand to lose a fortune when this legislation passes. And pass it will — the days of charging hundreds of dollars a month for TV channels that you don’t watch are going away. Count on it.
So a good hedge against this loss — one that will keep the royalty and residual money flowing — is a big-giant subscription DVR service.
The future I envision has the cable connection itself as a cheap commodity costing only a few bucks per month — maybe less. Instead of subscribing to HBO which plays a few movies a month and also runs The Sopranos, I can buy whatever I want.
So branded content networks like NBC and HBO will go away to make room for, as an example, the John August channel. Or the Craig Mazin channel. Or whatever.
The point is that there might be an upside here. Have you considered that possibility?
February 3rd, 2009 at 8:46 am
I read your previous look at this, but didn’t have time to comment. Since it’s come up again, and I do have time, I’d like to point out something that I think is a fundamental flaw in the logic that leads to your fear of the “infinite DVR” supplanting VOD.
The entire reason that VCRs, DVRs, etc, are allowed under the current copyright law is that their use is considered a “fair use” activity. It’s that mechanism which makes them legal.
However, your dystopian vision of “record everything just in case someone else might want it, and give it to them after the fact”, it seems to me, falls well outside of a fair use activity. Granted, I’m not an IP lawyer, but this seems pretty clear-cut to me. That would essentially be piracy with a very well-placed ripping center and unusually efficient distribution network.
Further, as a distributer with contractual agreements with the content producers, there are surely contractual mechanisms that are (or could be) put in place to prevent this sort of re-distribution, copyright law totally aside. That seems to be a distinction that people often fail to make in discussions like this, there seems to be this expectation that copyright law is some magical cloak that provides some sort of legal invulnerability, and therefor it is the appropriate tool for everything when it comes to creative content. It seems to me that this is an issue that might be more appropriately handled by contracts. But that’s a different discussion entirely, one I’m even less qualified to participate in. :D
Bottom line, I think this is a lot of worry over nothing. Offering the DVR service is likely a valid fair use activity and I hope the courts allow it, though there are certainly arguments to be made that it is not. However, your vision of it spinning out of control into a way-back machine for TV seems to me to be alarmist hand-wringing. That is such a completely different activity that I don’t see how any reasonable person could consider it to be a fair use.
February 3rd, 2009 at 11:38 am
A cable-company-run infinite DVR only seems probable in the sense that it’s one of several possible products that meets increasing demand for video on demand. The real question is, what will the shape of the industry allow, and how will it evolve? Cable companies and content producers play very different roles with very different business models in these possible future scenarios, and both will resist major changes that reduce or eliminate their role, or introduce substantial business risk.
My preferred future scenario is video content delivered to my TV on demand directly from the content producer over a high speed Internet connection, where anyone else on the Internet can be a content producer. That scenario eliminates traditional cable TV service entirely, except to the extent the cable company is a net-neutral Internet service provider. Cable companies provide Internet service today as a hedge against the failure of other efforts to control content distribution.
There will always be demand for a small number of sources of mainstream entertainment, so big studios are still in the picture. But it probably means a slimming of their business. Of the hundreds of hours of programming streaming into my home, I’m interested in about 10 hours a week (+5 for the kids), which is more than I have time for anyway. Now we have studios running VOD web sites, to develop business models for this likely future.
The Internet isn’t going away, and neither are the companies with copper wiring into most homes and regulated geographical monopolies on what to do with them. Whatever the future brings, it’ll always be a pain in the ass to hook up to my TV.
February 3rd, 2009 at 12:34 pm
Dan is right. The Internet is not going away. It’s becoming bigger all the time. It’s gotten to the point where we have websites like Hulu where we can watch popular TV shows and movies mostly without commercial interruption, and without censorship. The Internet has provided a significant benefit over getting content via a cable box. And what is Hulu if not a VOD service?
However, Hulu is partially owned by NBC. Therefore, anything NBC makes is available to the public for free. And little advertisements, like the one for Comcast on the HD Gallery page today, make them a little extra money. What they’re really doing, though, is getting people interested in the program on their own time. Hulu is an entry point to real cable, where the real advertisement happens. That’s where the money is. That’s where the ratings come from.
To move everything to online-only, and to provide only duplicated content (that I believe does NOT fall under Fair Use policy, but I’m no lawyer — for real, I’m no lawyer), takes that away. So the studios need to either find a way to adapt to the change that Internet is bringing on, or fail. It’s as simple as that. I don’t agree with what Cablevision is doing, but I also don’t agree with advertisements. As a consumer, I feel qualified to make these points, and would expect these needs to be met by those providing content to me. Otherwise, I’ll just pirate the stuff, and that’s something the studios try to avoid.
February 3rd, 2009 at 2:45 pm
I love the idea of being able to watch a program at any time during the first week. So if I miss an episode, or one program conflicts with another, I’ll just the show later later. That’s basically what I do with my DVR, because I rarely am free when a show is airing to watch it live.
But I think the biggest benefit of being able to watch a program at any time during it’s “new” period, is that perhaps one day these new-on-demand viewers would count towards ratings. Maybe our favorite shows might get that ratings bump they need to stay alive, though the trade off is probably adverts that you can’t skip.
This concept is probably quite scary to TV Networks. All of the sudden timeslots become irrelevant. If you want to kill off a show, sticking it in a dead time slot might not work anymore. They’ll be forced to keep producing quality entertainment that rates well. The up side for them is that if this kind of on-demand during the first week system was in place, they could potentially sell bigger ads in some of the smaller timeslots if the show is rating well on-demand.
February 3rd, 2009 at 2:52 pm
How is the money being handled now with video-on-demand?
With Comcast, I have quite an extensive selection. Every premium movie channel, lots of TV shows, even IFC’s movies currently in theaters (Che right now).
February 5th, 2009 at 9:32 am
@Quentin:
I think “fair use” is actually a more limited term than how you’re using it, but I know what you’re getting at: we seem to be allowed to hold onto things for our personal use.
My scenario, which you seem to grasp, is that the not-so-wayback machine can easily be defended by the same principles as “virtual DVR.”
@Dan:
As a consumer, I too would like to be able to get just the shows I want, direct from the content provider. This obviously changes the entire business model, and relies on fast, net neutral distribution.
@Kieran:
Ratings already account for people who watch a show close to when it airs, with terms like “Live + 7″ meaning the first week.
@Al Sweareengen:
I don’t know what terms studios have with different outlets, but there are existing formulas for residuals and other back-end calculations.
February 9th, 2009 at 10:46 am
The problem with your reasoning, John, is that the service Cablevision provides is nothing like the one you describe. The one you describe is Video on Demand. Cablevision’s service is not.
A court’s job is not to rule based on conjecture of what might happen in the future, it’s to rule based on the facts and the law. The Appellate Court ruled for Cablevision for the simple reason that, as designed, the customers’ level of control over the content makes it much more like a DVR or VCR in the home than the direct and obvious copyright infringement situation you describe. (They’re not offering unlimited indefinite storage – the storage is partitioned into a section on a remote hard drive that is dedicated for that customer.) This is the right decision, based on the facts and the law, and my guess is that it’s unlikely even to be heard, much less overturned by the Supreme Court.
February 9th, 2009 at 1:04 pm
@David Kassin Fried:
You’re misreading the point of the post. This isn’t about how the Supreme Court will rule in this case, but rather what the implications could be if a provider like Cablevision begins offering this type of service. Nothing in a Supreme Court decision would be so specific as to limit a provider to offer X gigabytes of service per customer, for example, and the idea that each customer would have a separate partition is unworkable and unverifiable for reasons discussed in the original thread.