DMCA Loophole For Peer-to-Peer TV Show Sharing?

An anonymous reader writes "Fortune.com asks, "Is TV Show Swapping Legal? For those using TiVos or new Windows PCs, it just might be." Why? "The law that ensnared ... DVD hackers, the Digital Millennium Copyright Act, doesn't specifically address the question of [personal video recorders]. But when it comes to the legality of hacking digital media, the law zeroes in on 'circumvention' -- did hackers have to circumvent protection to copy the video? Several hackers who have published their techniques online say they didn't have to crack anything to extract video from their TiVos""

What's the big deal about show swapping?

[angle_slam]

To the perspective of the networks, don't they want MORE people watching their shows? Plus, taping shows is already legal, what's the difference with letting people put it on computer?

DMCA Loophole? What about a copyright loophole?

[smd4985]

Seems like all this talk of a DMCA loophole is irrelevant - I'm more interested in knowing if sharing TV shows is allowed under copyright law. I'd assume no.

Feel free to celebrate this loophole though - but perhaps you should read the chapter in 'The Hobbit' entitled "Out of the Frying Pan, Into the Fire". :)

there is that whole

[geekoid]

copyright issue.

Trading copies of the program(regardless of medium) to people is a copyright violation.
sure, you can record a show for your own use, but not for distribution.

The DMCA is not the whole story

[Wesley Felter]

Even if the DMCA does not prohibit sharing TV shows, regular copyright law probably does. However, software and hardware which allows TV show sharing might be legal to sell if this article is right. OTOH, they didn't need the DMCA to shut down Napster, so my guess is that the TV networks will use similar contributory infringement arguments if they want to go after ExtractStream and friends.

Point missed

[javatips]

I believe the reporter missed the point.

Digital or not, copying copyrighted content without the consent of the copyright holder (beyong fair use) is illegal.

Hollywood is already going after people who share digitaly captured content from analog signal (no circumvention device used) using the DMCA and other copyright laws.

The fact that you don't circumvent protection mechanism does not allow you to share (beyong fair use) copyrighted material without the holder consent.

Re:Time limits

[Duds]

It could indeed be done

But there's the loophole again. Play it back through a PC with a capture card and goodbye limited life time.

This is the problem with limited life DVDs, it makes it no more difficult for some (evil - RIAA rep) person to rip it and copy it. That only takes 40mins or so and one read pass.

Circumvention

[sigwinch]

The wonderful (not) thing about the DMCA is that anything can be considered a protection system, because protection is in the eye of the content provider. The only way you can tell if your actions are unlawful circumvention are to try them and see if you get sent to jail.

Re:DMCA Loophole? What about a copyright loophole?

[MisterFancypants]

Of course it is a copyright violation to share/redistribute these shows. As many others have mentioned, including yourself, the DMCA angle is irrelevant.

You can't even show a TV broadcast in a public place without proper written permission, according to current copyright law, let alone record and redistribute the the content...

So what if it is shared

[Jedi1USA]

Shows are broadcast to an audience of unknown specific size or location with no guarentee that anyone will actually watch it. Why should they care if it is redistributed again elsewhere? If it were being sold....that is a different issue all together. Sounds like someone is getting upset for not maintaining 100% control. Of course these are the same people that say watching the shows commercial free is theft, so there is already precedent there is no sound logic behind their motives.

Fishy

[Espen]

This smells like a plant. This kind of copying is obviously still protected by normal copyright legislation, which does in fact protect the copyright holder. The only reason I can think of for someone to come up with this kind of misleading information would be so that it can be used to back a pro-DCMA arguement ie.: "Look what terrible things can go unpunished without the DCMA".

Another suspected 'plant' I've seen lately in the media is the idea that "consumers may soon have to may for things they used to get for free" (ie. making copies of media). Well, that is an interesting spin, because consumers never got that for 'free'; they payed for the product, and they knew that included the ability to copy it, it wasn't an unexpected bonus.

Because it's DIGITAL

[ink]

Didn't you already know? All copyright law has to be re-written because DIGITAL is completely different from analog copyright. Even though it's still illegal to violate copyrights, we have to have even more restrictions because of the almost-magical qualities of digital media. People who violate the copyright of certain materials should not only be prosecuted under conventional copyright law, they also need to be severely punished for breaking the magical digital restrictions as well.

Seriously, though, the governments and corporations of the world have taken advantage of us by pawning off all these "digital" versions of laws that are already in place. This is why the EFF keeps fighting it, and why everyone should too.

Re:What's the big deal about show swapping?

[Cpt_Kirks]

I missed the Enterprise episode "Catwalk" due to bad weather. I just downloaded it and plan to watch it later. Love that Kaazaa!

Re:What's the big deal about show swapping?

[jgerman]

Well, they really have no way of knowing if you watch the commercials now, unless you have a Nielsen box that is.

Though I do agree that the business model must change, it's not as easy for an executive to see that. The status quo is what makes them money, they don't want to change.

Good Commercials

[Anonymous Coward]

Perhaps if the majority of companies would stop producing stupid comercials and having them played twice in every comercial break, people would actually be more inclined to pay attention to them. There are certain good commercials that I pay attention too, simply because they are funny, witty, intelligent(somewhat) or visually appealing, but comercials that get played to often or are just plain annoying, stupid, condescending, etc. aren't worth my time or attention. It's quite obvious how ever that once a show is recorded with out the commercials, the viewer won't see them again BUT for the person recording to actually skip the commercials, they have to watch them, then even if they give a copy of the program to a friend, there is a 95% chance that that friend has already seen the commercials that have been skipped over. I don't see a problem with that in the slightest. With the amount of advertisement that the average person sees in a given day, there should be nothing wrong with skipping over a bunch of it. After all, seeing an ad for... i dunoo, some deoderant over and over and over and over is more than likely going to leave a hateful impression in my mind and when its time to go buy some deoderant I'll choose the product that wasn't bruted forced to my attention.

Wake up marketing people! Wake up!

Re: What's the big deal about show swapping?

[xchino]

No, this is not what the networks want. Many people seem to think it's because they want you to watch the commercials, and most people tend to remove commercials from their recordings, but this has absolutely no bearing on the network. In fact, they'd probably rather you remove the commercials, not wanting to give out free advertising. The fact is, they want you in your seat giving your full attention at X time every Y number of days per week. If they can't control when you watch a certain show, they have no leverage for charging excessive advertising fees.
Also, keep in mind many advertisements are time based, due to store hours. What good would a burger king commercial do at 2:00 in the morning? All the burger kings are closed. So they need to make sure they get airtime while their open, and especially around eating times. If they can't be assured that their marketing plan is executed in a timely and proper basis, they won't pay up for adverts.

It's always more interesting than it seems...

[werdna]

Here's the deal. It is just fine to have a VCR, because VCR's are capable of substantial noninfringing use and don't get sold primarily for swapping. It is not fine to have a centrally managed PTP file sharing system like Napster for reasons only the 9th Circuit can fathom, and Napster couldn't afford to bring to the Supreme Court (which reversed the 9th Circuit's opinion in the Betamax case). Now, there is also the claim of DMCA, which I agree is not an effective circumvention method, particularly when used just like a VCR -- the content that was broadcast was in the clear, and not encrypted.

But this does not mean that a mechanism for sharing TIVO files digitally would be lawful, or that any particular sharing would be lawful -- any more than it means that a VCR tape copy made of a movie may be freely shared (it can't be). If someone contributes to the infringement of another, and there is no substantial noninfringing use, there may be liabliity in the contributor as well -- in most every case, the TiVo user who swaps files is very likely an infringer of Copyright.

In short, the devil is in the details, and there is no meaningful TiVo exception to the Copyright Act. That the DMCA might not apply (and it probably does not unless the original content were encoded in some manner) is beside the point, they might get you the same way they got Napster -- straightforward and good old-fashioned claims of copyright infringement.

Re:Point missed

[Fnkmaster]

I think you missed the point. Under existing copyright law, it's illegal to use such a feature for purposes other than those protected by Fair Use (for example, transmitting a show for educational purposes only to a specific individual, or using such a feature to make a backup, or using such a feature with permission from a copyright holder, or so on. Prosecution of an individual for breaking copyright law using the ability to get content out of some set top PVR box has always been possible.

However, the person who made the box, provided the feature, or wrote a piece of software to get data out of a Tivo (ExtractStream) to the best of my knowledge did not themselves infringe existing copyright law. That's why the DMCA is relevant. Contributory infringement, admittedly, already existed, but there is a redline test involving "primary purpose or effect". The DMCA doesn't require any such test to be applied if "circumvention" has occured (no this isn't a formal legal analysis, just my current recollection).

Re:there is that whole

[Cyno]

I believe as long as you are not selling it fair use applies. Besides most TV shows are broadcast across the airwaves making them public domain, since anyone could intercept them. Basicly everyone has a license to view TV programming. HBO Movies might be a different story. Or an encrypted TV network, like digital cable or HDTV.

Re:What's the big deal about show swapping?

[ryanvm]

That's why TiVo has never implemented an automatic commerical skip feature. ReplayTV has it, but they are getting harrassed because of it. Very lame.

Very lame? I know the /. mantra is "I wan't it free!", but you've got to be realistic. These companies are providing you entertainment at no cost to you. They do this because they're paid by advertisers. Why shouldn't they be opposed to commercial skipping?

I don't think commercial skipping should be made illegal, but you have to understand that your actions have consequences. If everyone is skipping the ads, free TV is going to go away. Either you'll be forced to watch ads (like the unskipable previews on some DVDs) or you'll have to pay for your TV programming (e.g. HBO). There are no other solutions.

Personally, I'd like to see TiVo stay a cult item so I can "cheat" the advertisers with mine while the rest of you suckers foot the bill.

But you could make your case to Ad Agencies

[RumGunner]

..by reporting statistics like "Our show is the most swapped on the internet" which would probably do wonders for in show advertising.

I.e., imagine Stan and Kyle drinking Pepsi and belching. Or Cartman eating Hormel Beans and... well, you get the idea.

.

This violates several laws

[abbamouse]

Although this may not violate the DMCA (depending on how courts construe "circumvention"), it violates several other criminal statutes. First, it violates the No Electronic Theft Act, which criminalized copyright violations even without a profit motive. While the Act requires a value of $1000 of content to trigger its provisions, courts have allowed this threshold to be met by production or "black market" prices rather than realistic costs. In addition, this may violate the National Information Infrastructure Protection Act, which criminalized unauthorized access to servers. While this was intended as an anti-hacking law, perhaps it could be extended to unauthorized intrusion into one's own server (Tivo) if (and this is a HUGE if) owning the thing doesn't automatically authorize one to access it.

While the second of these is speculative, the first can and has been used to prosecute warez folks so I have no doubt the Justice Department of John Ashcroft would use it should entertainment companies begin wailing about TV piracy.

Re:there is that whole

[Wesley Felter]

I believe as long as you are not selling it fair use applies.

People have argued this both ways, but your interpretation seems to be losing.

Besides most TV shows are broadcast across the airwaves making them public domain, since anyone could intercept them.

No. That's not how copyright law works.

Basicly everyone has a license to view TV programming.

To view it, but not to redistribute it.

Re:Screw Tivo

[JohnFluxx]

Actually the van doesn't contain anything - the dectector bit is just hand held. Ya see, the tv signals are kinda weak and so are overlayed on this big strong high frequency signal. (tv+Strong signal). So in the tv all it does is generate another strong signal(different frequency for different channels) and overlay that on top of the incomming signal with a phase difference of 90. (tv+Strong-Strong = tv!).
The detectors just simply try to pick up what the strong signal from the tv.(Which btw means they also know what channel you are watching).

Re:there is that whole

[Monkelectric]

Thats kind of tricky though ... Is it legal for me to record a show with a VCR and then keep it? Is it legal for me to record a show on a pc and keep it? Is it legal for a friend to record a show on a vcr and give me the tape ? Is it legal for a friend to record a show on a vcr and for me to make a copy of his tape? Is it legal for a friend to record a show on a computer and give me a copy?

I think the networks will have a tough time litigating this one beacause, you pay for the shows (yes, I pay adelphia for the shows, I dont pay for "service". They dont advertise great HBO *service*, they advertise HBO SHOWS. If the electric company worked the same way, I would be paying for the power poles and not the electrons.) Second of all, if a show is on in my area I *could* have recorded it and that would have been legal. Now for people who dont subscribe to cable, that might be a different story.

Re:What's the big deal about show swapping?

[Triv]

you'll be forced to watch ads (like the unskipable previews on some DVDs)...

Ooooh, how I HATE them. It's one thing to hit me with ads for something I'm essentially getting for free (TV) but to put 'em in front of a movie I've paid for is extremely annoying. Our economy is becoming more and more entrenched in "Free=advertising, cost=no advertising" land, which is fine, but it makes violations of this 'agreement' stick out like a sore thumb.

Triv

Re:there is that whole

[Sparr0]

intercepting them is legal (except for cable, which it is illegal to "steal" in most states). watching them is legal. REDISTRIBUTING them is illegal regardless of whether you are selling it or not. Fair Use applies to clips, quotes, screenshots, etc, not entire episodes.

Re:One huge hole

[glesga_kiss]

The would have to release their own software which wouldn't let you fast forward during the adverts.

Again, I don't understand this argument. There is nothing forcing you to read the adverts in magazines, newspapers, billboards. TV has only been different because that is the way the technology worked. This is no longer the case and they need to get over that fact.

and don't get harrassed by it if I have a ripped vcd or mpeg of it.

Kind of ironic, isn't it. Saying that, I can't imagine anyone saying, "bugger, can't watch it then, better bin it" after seeing the warning on a pirate.

Personally, I bought a hardware DVD player with a chip to disable the "user prohibitions" features. No macrovision (use my VCR to convert the composite out to RF, fed around the house) and of course, multi-region. Bliss!! Moral of the story...research before you buy. :-)

Re:there is that whole

[gilroy]

Blockquoth the poster:

Is it legal for me to record a show with a VCR and then keep it? Is it legal for me to record a show on a pc and keep it? Is it legal for a friend to record a show on a vcr and give me the tape ? Is it legal for a friend to record a show on a vcr and for me to make a copy of his tape? Is it legal for a friend to record a show on a computer and give me a copy?

Yes. Yes. No. No. No. It really isn't tricky: The courts have said you may make a copy of a TV broadcast for timeshifting or spaceshifting for personal use only. Heck, remember the MP3.com case: A judge said that MP3.com couldn't distribute digital copies of a CD even to people who verifiably owned the CD (and thus were entitled to making their own copies).

Come on!

[fishexe]

Is it circumvention of copy control to copy mp3s off cd and put them on p2p? No. Is it illegal? Yes.
I don't know who got the idea that the issue with p2p was circumvention. The issue with p2p was straight-up copyright violation, illegal for well over a century prior to the DMCA. The issue with /DeCSS/ was circumvention.

Re:What's the big deal about show swapping?

[elmegil]

Oh, and I suppose networks like Nickelodeon, who can't be bothered to air Invader Zim (a favorite in my house) at a consistent time from week to week if at all, really deserve my time to track down the show through all the dreck they usually replace it with along with making me watch their commercials. Sorry, but I'm very happy to swap shows over the net so I can see animation that really amuses me without the hassle of an insane entertainment provider.

It's About Reruns, too.

[pythorlh]

If you're swapping shows online, or even taping and replaying the shows, they only sold those commercials once. If you're watching reruns instead, they can sell different commercials each time. Plus, their ratings drop during rerun season. Ratings = Advertising Dollars, so they want you in the seat, even during reruns, to keep the cost of their commercials up. Not to mention DVD sales of season compilations.

Re:my four ha'pennies...

[M.C. Hampster]

Compare this to open source software

You can make comparisons and analogies to open source software all you want, but it doesn't make it anymore true (or +5 Interesting). While both television shows and open source software are (usually) under copyright, that doesn't mean they both have the same rules to cover distribution. Open Source software (at least under the GPL) is allowed to be distributed by anyone because that is what the original author, who owns the copyright, has allowed under their license. The owners of copyrights of television shows have not released their shows under the same license.

Also, as is been mentioned on several of the other threads, you have the legal right to make your own copy of a broadcast television show and timeshifing, but you have no legal right to distribute that show to anyone else.

Re:What's the big deal about show swapping?

[grrliegeek]

I currently don't subscribe to cable at my home, because of the lack of quality programming for the price and all the commercials. However, I would pay for TV service that was lacking commercials and had better quality than the current drek that passes for "cable TV". I also remember when the option first arrived where we could pay for service without commerials (in the days when you had a little black decoder box on your TV for each premium channel). It seemed pretty simple, they provide the tech & content, you pay them for it. I realize that I pay the cable company for the cable tech, not for the content that is delivered, but (on a side note) I've seen some cable channels come in with *really bad reception*. Apparently some cable companies aren't really concerned with making sure their tech does the job of ensuring you get the channels they contractually promised in a way you can view without going blind.

I see a parallel here to the P2P music swapping debate. If a TV broadcaster / network produces something that people want to pay for, they will. If they produce quality shows in a way that the customer finds convenient (unlike the Nickelodeon example) that offers benefits which outweigh TV show swapping, people will fork over the money for it. I'd be one of them.

My Valenti Impressions

[Didion Sprague]

Actually, the networks aren't afraid of copies. They're afraid of *perfect* copies.

Hence, the fear of digital.

Geriatric Jack "Maddog ... Grrrr!" Valenti goes on and on about the danger of "perfect" copies. I've seen him speak twice -- a amazingly underwhelming experience -- and find him to be much to old to actually "get" what's going on.

He doesn't get what's going on. His staff does, but he's the spokesperson, and he's not a very good one. Valenti is much more interesting -- and actually engaging -- when he talks about his time in the Kennedy (that's right, JFK) White House.

But this digital stuff -- and the fear that Valenti loves to spread -- just doesn't resonate when Valenti is doing the talking. He's like some old guy talking about "The Pink Floyd" while watching a PF video and then pointing, saying, "Is that Pink? Is that guy Pink?"

He's the sort of guy that would do the much-maligned "Funky White Guy" dance -- squinting, sorta pursing his lips, lifting his hands, and trying to shake once or twice to the beat. It's not only not effective, but it's not funny. It's abymsal, in fact, and that's exactly the sort of aura that Valenti projects among the 20/30/early 40 crowd -- at least when he's doing his public speaking thing.

People look at him and have this: "Is this guy for fucking real?" look. We all clap politely but know nothing's gonna change until he takes his retirement, leases that new Lexus, and heads out to Tuscon or Phoenix or Palm Desert or wherever has-beens go to relax and prune-out.

The other issue -- at least when I saw him speak -- was the fact that Valenti was talking about digital copying as if it were a fate worse than terrorism. I mean, for fuck's sake, let's be real.

The neo-Islamo-fascist weapons trade is serious.

Kim "Look at my lofty bouffant hair-do" Il-Jung proliferating his plutonium and U-235 is serious.

Angry Chechen mobsters with lead-lined cannisters that are warm to the touch are serious.

But a copy of "Buffy the Vampire Slayer" -- even if it's a perfect copy -- is not serious.

Yes, yes, I understand that a good portion of media America is concerned and worried about "proliferation" of perfect copies. But believe me, that same group of Italian-suit-wearing-hire-me-a-nice-young-intern-s o-I-have-something-to-fuck-on-weekends executives will be a helluva lot *more* worried if one day we wake up to see goofy Donald Rumsfield breaking into 'Days of Our Lives' to tell us that we've just stopped and boarded an unflagged North Korean tanker headed for an unspecified port with 100 kilograms of plutonium on board.

And the other issue with Valenti is that the word "compromise" is simply not in his vocabulary. Several folks asked him about whether or not he could find a "happpy medium" and his response was always, no, digital copies must be protected. Period.

So he didn't score any points -- at least not with me and booze-whores I hang out with.

You do NOT license DVDs! You OWN them.

[ChaosDiscord]

I don't own a license to view a DVD, I own a license to view a Movie.

Unless you're buying your DVDs somewhere strange, you don't have a license to anything. You own a single legal copy of the movie as encoded onto the DVD. There is no license either granting you additional freedoms or taking freedoms away from you. You are free to use the DVD however you like, within the limits of copyright law. You are free to watch it, destroy it, sell it, give it away, and loan it out without any license needed, just like a VHS tape, a CD, a book, or a magazine. Assuming you can get around the Macrovision and CSS without violating the DMCA, you're even free to make copies for personal use. Copyright law does places some limitations on behavior, including prohibitions on distributing copies of the work and publically perform/show/broadcast it. (The DMCA part of copyright law effectively bans software capable of breaking the encryption on DVDs.)

The idea that you need a license of some sort to make personal use of copyright protected content is wrong. Many copyright based businesses are spreading this erroneously idea because it increases their effective power. Don't buy into it!

(The claim that a publisher can use a click-through license on software is based on some very shaky assumptions and still lacks a good national test case. Any attempt to spread such behavior to DVDs or other media would likely fail miserably.)

Um. They did have to hack.

[jmanning2k]

They ran ExtractStream. Video extraction is expressly prohibited by the TiVo terms of service. In order to run this app, they had to crack open the TiVo and install custom software. With the series2 TiVo's, this is definitely a hack, breaking the encryption and hash verification they have on the kernel and binaries (well, not breaking, really just avoiding - aka "circumventing" - this protection by inserting shell code into the boot parameters as a BASH_ENV variable). With the series1, you have to modify the prom to do this, unless you have a very old TiVo that you have prevented TiVo from updating the boot code for, again "circumventing" the code TiVo has in place to prevent this sort of activity.

I would consider heavy reverse engineering of an unpublished disk format, installing custom software by circumventing the measures they have in place to prevent that, and violating the Terms of Service to extract video equivalent to "cracking" or "hacking" - no matter how you define those terms.

And they say they didn't have to crack anything...