John August

In my post on [Cablevision and the infinite TiVo](http://johnaugust.com/archives/2009/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](http://johnaugust.com/archives/2009/cablevision-and-the-infinite-tivo#comment-167455):

> 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](http://johnaugust.com/archives/2009/cablevision-and-the-infinite-tivo#comment-167531):

> 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](http://johnaugust.com/archives/2009/cablevision-and-the-infinite-tivo#comment-167356) 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](http://johnaugust.com/archives/2009/cablevision-and-the-infinite-tivo#comment-167361) 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. ((To me, the window is a week. Maybe ten days.))

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.