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Television Media Your Rights Online

DMCA Loophole For Peer-to-Peer TV Show Sharing? 371

Posted by timothy from the honest-it-was-just-broadcast-to-me dept.
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""
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DMCA Loophole For Peer-to-Peer TV Show Sharing? More

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

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  • What's the big deal about show swapping? (Score:5, Insightful)

    by angle_slam ( 623817 ) on Monday January 06, 2003 @03:18PM (#5026988)
    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?
    • They don't want just viewers they want people who will watch the commercials too. I would tend to think that most people who watch recorded shows skip the commercials. Not something networks want.

      • Re:What's the big deal about show swapping? (Score:5, Interesting)

        by glesga_kiss ( 596639 ) on Monday January 06, 2003 @03:28PM (#5027101)
        I would tend to think that most people who watch recorded shows skip the commercials.

        Even if the people watching the shows from a p2p download did watch the commercials, the network still wouldn't get paid for these viewings. They simply have no idea on how many viewers will see it, and have no way to prove it.

        To me, all p2p has done is to change the business model. If the networks had any sense, they'd have every show available for download on a popular p2p app, with some major hosting at their end. Then they get to choose the commercials that exist in the de-facto standard download for that episode. And the advertisers will know that, and pay more for the privledge.

        Or, you could just bribe politions to change the law in-keeping with current practices, and have no control over a system that is growing larger every day. You can get almost any popular show on p2p now, with no commercials in it, having been stripped out by the person who did the capture.

        • I missed the Enterprise episode "Catwalk" due to bad weather. I just downloaded it and plan to watch it later. Love that Kaazaa!
        • Then they get to choose the commercials that exist in the de-facto standard download for that episode. And the advertisers will know that, and pay more for the privledge.

          Nah, because it'd be even easier to just cut out between the first keyframe of the brrak and the last keyfram of the break and reshare.

          They wouldn't even have to do the capturing, the network would have done the hard work. It would literally be a 30second job.

          • Re:One huge hole (Score:4, Interesting)

            by glesga_kiss ( 596639 ) on Monday January 06, 2003 @03:40PM (#5027175)
            Nah, because it'd be even easier to just cut out between the first keyframe of the brrak and the last keyfram of the break and reshare.

            Sure, but given a choice of the file with thousands of sources and ample bandwidth versuses the one with 3-4 from a couple of cable modems capped at 128k upstream, the "official" version will prevail. You can't control everything, and this seems to be the basic lack of understanding with these corporations.

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

              I really really hate watching dvd's in windows where it forces me to wait ages for that fbi warning. For me (and most ppl) I only see the fbi warning if I have the original dvd, and don't get harrassed by it if I have a ripped vcd or mpeg of it.

              • Re:One huge hole (Score:4, Insightful)

                by glesga_kiss ( 596639 ) on Monday January 06, 2003 @04:01PM (#5027327)
                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. :-)

            • Indeed, I'd certinally get the original one.

              Then I'd spend some of the time I saved cutting out the breaks :P

            • Re:One huge hole (Score:3, Interesting)

              by Minna Kirai ( 624281 )
              Yes, if CBS offered commercial-laden downloads on p2p, (without deploying any imaginative new impediments) they'd become the vastly preferred download source.

              In comparison to random tivo-rippers, they'd have superior timeliness, audiovisual quality, and legality (the viewers can sooth that tiny pange of guilt that plagues them today).

              The TV networks might even arrange some formula to inject p2p downloads into their Nielsen computations, so their income can proceed as usual.

              However, if this happens, their profit model will immediately face a new menace: "virtual copyright infringment". Some hackers will create/modify a software MPEG player so that it applies a simple EDL (Edit Directive List) to the video as it plays.

              When following an EDL, a player doesn't read through the stream linearly from start to finish. ("Begin at the beginning, and go on to the end. Then stop"). Instead it may start playing 15 seconds in, then pause after 24 seconds and skip ahead 30 seconds before continuing, etc. Using an appropriate EDL, you could for instance watch a PG-13 edit of an R-rated DVD.

              Or, more worrisome in this scenario, you could skip over the commercials of a recorded TV program.

              So what will happen eventually is that the first few viewers to download a TV show will create a list of commercial start/end times when watching the show (just tap a button when viewing it for the first time) and then dissemenate a no-commercials EDL far and wide.

              The EDL might be spread on a p2p network, or ftp site. But it's such a tiny file that you could easily transmit them through (mass?) email or IM instead. If the EDLs have a naming convention based on the authoritative filename used when the TV network released their show, then the viewer's process could be automated even more: when you start to play an official MPEG, the player hops onto Morpheus and searches for an EDL matching the commercial breaks for the video in question. (rather like the CD-audio database)

              I could go on and discuss possible countermeasures (technical, legal, or creative) to the threat of EDL and virtual-infringment, but you get the idea.

        • Re:What's the big deal about show swapping? (Score:5, Insightful)

          by jgerman ( 106518 ) on Monday January 06, 2003 @03:35PM (#5027150)
          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.

          • Even with the Nielsen box, you can still go an put on the kettle and take a leak. It does give you a rough idea of your audience, which is better than nothing.

            Mind you, modern (digial) cable systems can track watch you watch with their two communications. They will surely be observing channel-hopping during commercials, but for every 10 channel-hoppers, there are 1 or 2* people who did watch the commercial.

            Note: *Numbers made up

        • Re:What's the big deal about show swapping? (Score:4, Informative)

          by Lumpy ( 12016 ) on Monday January 06, 2003 @04:36PM (#5027642) Homepage
          Re:What's the big deal about show swapping? (Score:5)
          by glesga_kiss (596639) on Monday January 06, @02:28PM (#5027101)
          I would tend to think that most people who watch recorded shows skip the commercials.
          Even if the people watching the shows from a p2p download did watch the commercials, the network still wouldn't get paid for these viewings.

          I have a revelation for you... they dont know that 99.997% of all viewers see them or are even watching the show. they dont know that your Tv is tuned to channel 4 from 3:30pm to 7:30 pm during the soft core porn afternoon.

          the cable Tv companies do not YET collect the viewing demographics and sell them.. (I said YET.. it is coming!)

          your point is moot ... they don't know that I am watching TV at all let alone what channels at what time. they dont care... I'm not a nielsen family so my choices dont mean squat to them..

          They get paid on the commercial UP front based on the viewers in that area.. if UHF-62 in your town has 20,000,000,000,000 viewers and has a high rating point number then they charge $$$$$$$ for that spot... even if ony 3 people watched that commercial and everyone else tuned out, they still got paid all that money for that airing.

          NOBODY pays on how many people saw that show/commercial... they pay up front for X amount of subscribers at X rating for X daypart..

          I'm inside TV advertising... I know this stuff.
    • I think it boils down to the fact that networks make money on the commercials. They don't make any more money if you copy the videos and give them to your friends. Plus most people skip commercials when they record a show... a practice the networks HATE. 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.

      • Re:What's the big deal about show swapping? (Score:4, Informative)

        by rvaniwaa ( 136502 ) on Monday January 06, 2003 @03:33PM (#5027132) Homepage
        Actually, TiVo does have a 30 second skip feature. It is just not enabled by default and it is not well known how to enable it. See this link [tivofaq.com] for details on how to enable it.

      • Even more problematic is that ratings systems (the way networks determine how many people saw a show and its commercials and how much they can therefore charge in the future for commercial time) cannot currently effectively deal with the TiVo:

        If you tape a show and watch it months later, how does it count? The ratings have already been published!

        If you fast-forward through commercials while watching a program right after it actually aired, should it count?

        While these aren't huge problems today, as more people get PVRs the problems will become larger. Neilsen has spent time investigating VCRs in the past and are working with TiVo right now to address these issues in the future.

      • Re:What's the big deal about show swapping? (Score:5, Insightful)

        by ryanvm ( 247662 ) on Monday January 06, 2003 @03:42PM (#5027187)
        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.

        • Re:What's the big deal about show swapping? (Score:4, Insightful)

          by Triv ( 181010 ) on Monday January 06, 2003 @03:58PM (#5027302) Journal
          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
        • The whole point of cable was to get rid of commercials. You know, customer paying for TV rather than advertisers paying for TV. Not to mention product placement. If we're talking about free-as-in-free TV that you got from your rabbit ears, we can question it. But, if we're talking about paid TV, you're only accepting that there are commercials, not that there should be.


        • I agree, and this is a very good thing. I don't know how many /.ers watch HBO, but I know I do and it is excellent. HBO has, bar none, the best original programming of any channel. They are simply far superior. Why? To make money they need you to choose HBO. They don't just throw it out over the wire with commercials and hope someone watches it. You buy it because you like it. If other channels had to compete for viewers on that level there would be an explosion of excellent programming as opposed to the nigh-unwatchable garbage floating about the airwaves and cable lines. Go HBO

          By the way, news channels and channels such as TechTV would probably still get by with advertisements. It is channels trying to sell content that would have to improve their business models.

      • But you could make your case to Ad Agencies (Score:4, Insightful)

        by RumGunner ( 457733 ) on Monday January 06, 2003 @03:42PM (#5027192) Homepage
        ..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.

        .
    • Don't you watch the news? Computers are EEEEEEEEEEEEEEEEEEVIL.

      Besides, they don't want more people watching the shows, they want more people watching the commercials.

      It's an important distinction. I certinally cut out the ads when I TV cap and even if I didn't you can bet my mate would whack "Forward 30secs" until they finished.

    • Because it's DIGITAL (Score:5, Insightful)

      by ink ( 4325 ) on Monday January 06, 2003 @03:33PM (#5027131) Homepage
      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.

      • My Valenti Impressions (Score:5, Insightful)

        by Didion Sprague ( 615213 ) on Monday January 06, 2003 @05:19PM (#5028045)
        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.

    • Re: What's the big deal about show swapping? (Score:5, Insightful)

      by xchino ( 591175 ) on Monday January 06, 2003 @03:37PM (#5027162)
      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 About Reruns, too. (Score:4, Insightful)

        by pythorlh ( 236755 ) <pythor AT gmail DOT com> on Monday January 06, 2003 @04:11PM (#5027387) Journal
        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.

  • DMCA Loophole? What about a copyright loophole? (Score:5, Insightful)

    by smd4985 ( 203677 ) on Monday January 06, 2003 @03:18PM (#5026990) Homepage
    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". :)

  • DMCA is neither here nor there (Score:3, Interesting)

    by Duds ( 100634 ) <dudley @ e n t e r space.org> on Monday January 06, 2003 @03:18PM (#5026994) Homepage Journal
    Just because the DMCA doesn't mention it, it's still distribution of copyright material

    At least in the UK this is still illegal. Hell, recording to a VCR for personal use is I believe technically illegal

    Any info on the situation in other countries?
  • First, people were trading beanie babies ...

    Now they'll be trading re-runs of Friends ...

    What is the world coming to???

  • there is that whole (Score:4, Insightful)

    by geekoid ( 135745 ) <dadinportlandNO@SPAMyahoo.com> on Monday January 06, 2003 @03:19PM (#5027008) Homepage Journal
    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.

    • Re:there is that whole (Score:3, Insightful)

      by Cyno ( 85911 )
      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.
      • 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.
        • Thanks for the reply, but can you provide some links or reasoning to backup your claims? Its legal for me to copy anything transmitted over the airwaves, any content I grab out of the air does not have a copyright attatched to it, as far as I know. Or else I would be able to limit the court's use of my cell phone transactions because I'd own the copyright to them. Copyright is not as strict as you make it out to be. Initially it was intended to protect the valuable intellectual property of authors from the printing press and businesses that wanted to profit off of their work. Now you are using it, like the MPAA and RIAA would prefer us to use it, to limit our freedom to copy and distribute works without causing financial harm to anyone. See the difference? Napster was at fault because they were profitting off of other people's work. Gnutella is not and as a result is not breaking copyright law.

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

          Perhaps that is what you precieve to be true because you get your News from the popular media.

          • Re:there is that whole (Score:3, Informative)

            by krlynch ( 158571 )

            Not a lawyer and all that, but:

            • When a television show is made by a studio, that studio holds the copyright on the show itself.
            • When it "sells" the show to a network for broadcast, it is generally using its copyrights to charge for a distribution license.
            • The individual stations that broadcast the show over the aether have paid the government for the exclusive right to use a given set of frequencies for the express purpose of delivering broadcasts. The government gets the right to do that from you (in the US).
            • In exchange for being given those exclusive broadcast rights over the airwaves, the received broadcasts are still subject to copyright law (check the appropriate sections of the USC and applicable court rulings, all of which I am too lazy to look up for you :-)
            • In exchange for giving up control over the broadcast spectrum to private interests, the government retains some rights for you the citizen such as the fair use right of time shift recording for personal use, and the right to control content to the extent that it violates community standards of decency (which is why the latter doesn't violate the First Amendment in the US). Note that this DOES NOT impinge upon the copyright law prohibition against distribution by sources not authorized by the copyright holder during the full course of the copyright term.


            Your argument about cell phone transactions is specious, at best. It is generally illegal to record those private conversations, whether they go out over a landline or a cell transmission (because the citizenry has chosen to create/retain their rights to privacy in these cases), but I don't believe that has anything to do with copyright law.

            However, even if it did, don't forget that copyright is a LIMITED monopoly, and one of the limitations of that monopoly is in situations of pressing government interest. A court ordered wiretap or a subpoena for phone records are just hte types of pressing interests that trump copyrights. Patents also have the same sort of limitations (don't forget the "taking" of the Wright airplane patents in the First World War).

      • 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.
        You want to support either of those statements?

        Although commercial vs. non-commercial use is a consideration in determining fair use [copyright.gov], the intent is to protect non-commercial educational use, not just giving copies to your friends for the fun of it. The fact that you're not charging money does not automatically make it fair use.

        Nor does free distribution place a work in the public domain. Works in the public domain by definition receive no copyright protection. There are plenty of examples of freely distributed works which are under copyright, including most free software.

        • Re:there is that whole (Score:3, Interesting)

          by Cyno ( 85911 )
          Under your interpretation of copyright law we'd have no DJs. Copyright law does not prevent you from copying content. If I own a license to view content I can view it reguardless of which format it is in. I don't own a license to view a DVD, I own a license to view a Movie. If both you and me own that license, then what happens if I can copy my DVD into an ogm file and give you a copy. Would we be breaking copyright law? (I'd be breaking the DMCA, but that's beside the point here) That's something I bet even our courts would have a hard time figuring out.

          How many friends have handed you mixed tapes of their favorite music. Its the same thing. How do you prosecute someone for making a mixed tape or giving it to their friends. Its different when their friends become everyone connected to Gnutella, but to keep things simple let's just talk about neighbors sharing TV broadcasts.

          • Re:there is that whole (Score:3, Informative)

            by mph ( 7675 )
            Under your interpretation of copyright law we'd have no DJs.
            You're talking about radio DJs, not wedding reception DJs, right? They play music under license, of course. (And, traditionally, the labels are even willing to pay them to do so. Look up "payola.") Copyright law is about unauthorized reproduction, of course.
            Copyright law does not prevent you from copying content.
            Do you know anything at all about copyright law?
          • 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.)

      • Re:there is that whole (Score:2, Insightful)

        by Sparr0 ( 451780 )
        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.
    • 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:there is that whole (Score:3, Insightful)

        by gilroy ( 155262 )
        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).

  • Time limits (Score:5, Interesting)

    by march ( 215947 ) on Monday January 06, 2003 @03:20PM (#5027011) Homepage
    I wouldn't be surprised if a time-to-live feature is added to "swapping" devices. I.e., you can swap all you want, but the swapped copy has a limited lifetime and then erases itself. Like those disposable DVD's.

    This could be easily done by the folks at TiVo or ReplayTV.

    • Re:Time limits (Score:3, Insightful)

      by Duds ( 100634 )
      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.

  • The DMCA is not the whole story (Score:5, Insightful)

    by Wesley Felter ( 138342 ) <wesley@felter.org> on Monday January 06, 2003 @03:22PM (#5027028) Homepage
    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.

  • No story here re swapping copyrighted stuff (Score:4, Interesting)

    by declana ( 214275 ) on Monday January 06, 2003 @03:22PM (#5027029)
    Taking the poster's "legal analysis" as true "sharing" copies of television shows is still a violation of other copyright laws. As the MP3.com case proved, no one has a right to make a copy for you. Only you have the right to "space shift" (transfer to VHS, CDR, etc) an mp3 file (or television show). This is where Napster and MP3.com were found to violate copyright law. Not the DMCA's anticircumvision.

  • Screw Tivo (Score:5, Informative)

    by mhoover ( 446585 ) on Monday January 06, 2003 @03:22PM (#5027031)
    I have a ReplayTV. Love it! Can share my files directly off the Replay to the net (with some firewall rules). Not to mention software like DVArchive [sourceforge.net] that "emulates" another replay on my network allowing me to dump the files from the replay to my fileserver and share them back again for later viewing.

  • my four ha'pennies... (Score:4, Interesting)

    by blaimue ( 637983 ) on Monday January 06, 2003 @03:22PM (#5027034) Journal
    Compare this to open source software:

    The code is freely available. You can download it from the internet and do whatever you want with it. Anyone can watch a TV show and record it if they want.

    So why do people pay for things like Linux distributions? It's the convenience. They're not paying for the code, they're paying for the packaging, the tech support, etc.

    Same thing with the TV shows. If people want to record them and share them for free (essentially providing a service), that's their perogative.

    • Re:my four ha'pennies... (Score:4, Insightful)

      by M.C. Hampster ( 541262 ) <M...C...TheHampster@@@gmail...com> on Monday January 06, 2003 @04:26PM (#5027543) Journal
      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.

  • The Lawyer whorde will soon enough (probably already 'working' on it) patch the wholes, further screwing everyone else just a little more. This is not a troll, just basing my prediction on their standard operating procedures.

    Lets just hope we the people manage to stay one step ahead of them.

    Louisiana prosecutors rebuked for wearing 'noose' ties in court [xnewswire.com]

  • Point missed (Score:2, Insightful)

    by javatips ( 66293 )
    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:Point missed (Score:3, Insightful)

      by Fnkmaster ( 89084 )
      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).

      • 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

        Actually, the DMCA does require such a test to be applied, in 17 USC 1201(b) [cornell.edu], for devices designed or marketed to break "a technological measure that effectively protects a right of a copyright owner under this title". The right to exclude others from making unauthorized fair use of a copyrighted work is not such a right. Thus, section 1201(b) merely codifies the guidelines developed in e.g. Sony v. Universal.

        On the other hand, I'm not so sure about 1201(a).

  • If the show is copyrighted, you can not distribute copies. DMCA has nothing to do with this. It only adds criminal liability in case when the copy was created by circumventing a protection scheme. The civil liability is always there.

  • !DMCA != legal (Score:3, Informative)

    by DdJ ( 10790 ) on Monday January 06, 2003 @03:25PM (#5027055) Homepage Journal
    Just because the DMCA doesn't forbid it doesn't mean it's legal. Show-swapping is still a violation of ordinary, regular copyright, whether done via TiVo or VHS tape, regardless of what the DMCA says.

    If you pay to receive programming, and you make a videotape of it, and you give that videotape to someone who doesn't pay to receive the same programming, you're violating copyright and are breaking the law. Using a TiVo doesn't change that.

  • Circumvention (Score:4, Insightful)

    by sigwinch ( 115375 ) on Monday January 06, 2003 @03:25PM (#5027059) Homepage
    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.
    • Indeed. If you copy from a subscription service like DirectTV say you're doomed simply because technically the subscription fee is protection.

  • I'll respect the DMCA when and only when.. (Score:3, Interesting)

    by Dutchmaan ( 442553 ) on Monday January 06, 2003 @03:27PM (#5027077) Homepage
    they provide me with the capability to create a legitimate backup of my purchases...

    If I can't make a backup copy then screw em' because that's my right.

    If it wasn't for the moral erosion in the world by both corporations and consumers alike the DMCA would most likely not even exist.

  • The author of that story is confused (Score:5, Informative)

    by btempleton ( 149110 ) on Monday January 06, 2003 @03:27PM (#5027078) Homepage
    The Tivo just has a tuner and mpeg encoder that records video onto its hard disks. This is no different from any number of tuner/encoder cards for PCs such as the ATI All in Wonder, which have been out for years, and will record video to your hard disk.

    There is nothing new in the Tivo doing this, and it does not violate any laws. If somebody takes a copyrighted TV show and transmits it to others, they may be violating copyrights, and this has nothing to do with the DMCA or anything else.

    In fact, the Replay doesn't really do much different either. The studios are suing the replay because it makes it really easy to transmit shows, and they claim that this should be illegal. (Not transmitting shows, that's already illegal. They want it to be illegal to make equipment that automates the process.)

    Again, this has nothing to do with the DCMA. The DMCA made building tools that decode DVDs illegal. It doesn't actually much affect the rules on what you do with a decoded movie once you have it -- regular copyright law still applies there, and it can be illegal to make a copy of the movie for somebody else, and legal to make a backup copy for yourself.

    Tivo did indeed not have any protection system in it. They used a different filesystem to store the files but otherwise they were in a minor variation of standard mpeg formats.

  • As I understand the article either one of three, each interesting things, could happen: M$ gets a hard time, thoughts about copying should be changed or perhaps DMCA proves to fail.

    Or worst case, nothing happens... But that's something I cannot image because big players are involved...

  • So what if it is shared (Score:4, Insightful)

    by Jedi1USA ( 145452 ) on Monday January 06, 2003 @03:27PM (#5027088)
    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.

  • WAY better idea (Score:2, Interesting)

    by drdanny_orig ( 585847 )
    Why don't we show them who really holds the cards and just stop watching the damned TV and stop buying CDs! Jeebus H. Kriste, books are better for you, cheaper, and more fun besides.
    Just a thought. I'll take my mod points offline, thank you.
    • Books? Cheaper? hahahaha

      Cable - $50 CAD / month for hours upon hours of "entertainment"

      Books - $10 CAD to $100 CAD each for 3 to 10 hours of entertainment (unless you go to the library where selection is often limited)

      Books are not "better" for you - sure, you may be more likely to find more interesting content in a book, but there are plenty of trashy novels out there and plenty of educational and/or interesting tv shows as well.

      (For the record: I watch 5 hours of TV per month and read about 5 to 10 books per month.)

  • Fishy (Score:3, Insightful)

    by Espen ( 96293 ) on Monday January 06, 2003 @03:29PM (#5027107)
    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.

  • Circumvention required for SOME Tivos (Score:4, Informative)

    by undie ( 140711 ) on Monday January 06, 2003 @03:29PM (#5027111) Homepage
    I have a DirecTivo and participate in the Deal Database [dealdatabase.com] forums regarding Extraction, etc.

    I wanted to mention that extraction of video from Standalone Tivo does not require circumvention, but extraction from DirecTivo units does.

    DirecTivo's store the stream from DirecTV directly to the hard disk. Though it is stored AFTER the Access Card has decrypted it, it is re-encrypted when written to the hard drive.

    A smart person over at the forums wrote a kernel module that disables this (noscramble.o). This allows you to extract TYstreams (almost MPEG-2 :)

    So, from what I've read above, this loophole only applies to Standalone Tivo units.

  • Sorry Charlie... (Score:4, Interesting)

    by Fnkmaster ( 89084 ) on Monday January 06, 2003 @03:29PM (#5027112)
    The DMCA sets a pretty low bar for circumvention - DVD CSS is arguably a copyright protection mechanism. Mind you, there is no real jurisprudence yet on what constitutes circumvention, and, as always, the standards are likely to come down to whether a judge thinks a "reasonable person" would consider it circumvention of copyright protection measures. Was the undocumented Tivo filesystem a copyright protection measure? Somebody might be able to make an argument that it was.


    The good thing that the Tivo hackers (and I'm included in this one, I've hacked my Tivo unit and even got ExtractStream to work once or twice over my TivoNet connection - and that's no mean feat, unless somebody's made the damned thing work better since then) have going for them is that Tivo isn't really interested in having them prosecuted because Tivo isn't protecting their own copyrighted material. As for the copyright owners, I'm not sure they really care since with respect to Tivo, this is a hobbyist hack, and it sure is a hack (like I said, you try getting ExtractStream to work reliably).


    You can bet that anybody that commercializes an easy to use system for sharing saved shows will get sued (i.e. ReplyTV). For the time being, the desktop TV Card-based PVR software products are all so damned klunky that I doubt anybody has cared enough yet to push the US Government to action. When somebody mass markets a product for the top of your TV set, that's what gets panties in a bunch - the content producers figure that a few egghead hobbyists isn't a big deal but a mass market product is.

  • Always has been illegal... (Score:4, Interesting)

    by Kjella ( 173770 ) on Monday January 06, 2003 @03:29PM (#5027114) Homepage
    It's always been illegal to swap TV shows under conventional copyright law, nothing under fair use covers that. It covers time-shifting, and using small portions in various ways.

    What DMCA added was that it outlawed any tool or information that could be used to circumvent protection mechanisms (and screw any fair use or other applications it might have).

    I really don't see the point here...

    Kjella

    • Re:Always has been illegal... (Score:4, Interesting)

      by jgerman ( 106518 ) on Monday January 06, 2003 @03:46PM (#5027226)

      It's always been illegal to swap TV shows under conventional copyright law, nothing under fair use covers that. It covers time-shifting, and using small portions in various ways.


      Illegal or not, they can bite me ;) I'm usually out on friday nights, so I fully expect the right to ask a friend to tape Firefly and borrow the tape later to watch. This wouldn't be an issue if it wasn't so easy to release shows to the masses digitally but it's still pretty much bullshit in my book. Especially in the cases where the show is no longer avilable. For instance if I wanted to watch The Wonder Years I can't without finding someone online who has a capture. Or waiting on the remote possibility that it will be shown... at a reasonable time, on a channel I have, and in a reasonable order. As far as I'm concered, I will never feel guilty downloading and watching something I have no other way of obtaining.

  • My TV (Score:2)

    by grub ( 11606 )

    The networks better keep their gripes to themselves or Bill might just make "My TV" a reality..

  • It's always more interesting than it seems... (Score:3, Insightful)

    by werdna ( 39029 ) on Monday January 06, 2003 @03:39PM (#5027173) Journal
    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.

  • A fight I can't wait to see... (Score:3, Interesting)

    by gillbates ( 106458 ) on Monday January 06, 2003 @03:44PM (#5027213) Homepage Journal
    "We're sitting here wondering how long it will be until Microsoft gets sued,"

    Personally, I'm waiting for the content faction (RIAA, MPAA, et al...) to take on Microsoft for "contributory copyright infringement" . It is illegal to market a device whose primary purpose is to facilitate copyright infringement, and it appears that the new Windows functionality does just this*. It's only a matter of time before:

    1. The content faction sues Microsoft, or
    2. Microsoft "retroactively" (via Automatic Update...)incorporates DRM into its OS
    From my standpoint, it seems as if option 1 is better for Microsoft; DRM could hamper the widespread adoption of the new Windows OS's. Though Microsoft would like to push Palladium, I think they realize that they'll sell more operating systems without it - simply because people need a good reason to upgrade. Being able to record and swap tv shows is a significant reason to the average PC buyer; without it, Microsoft might have a harder time selling upgrades, especially in this stagnant economy.

    Personally, I'd like to see Microsoft buck the content faction, and get sued. As both Microsoft and the content faction have lots of money, it would be interesting to see them embroiled in a legal battle against each other, rather than trying to screw their customers...

    * - yes, ATI has produced hardware which allowed PC users to record tv shows, however, it is not nearly as universally recognized or used as Microsoft. Microsoft's backing of tv recording programs has a much bigger impact, as the software will be on virtually every desktop sold.

  • This violates several laws (Score:5, Insightful)

    by abbamouse ( 469716 ) on Monday January 06, 2003 @03:45PM (#5027220) Homepage
    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.
  • When I learned that Series 2 Tivo cryptographically signs the kernel and uses filesystem checksums, I quickly packed mine back in the box for a full refund.

    Now I'm happily running MythTV.

  • Come on! (Score:3, Insightful)

    by fishexe ( 168879 ) on Monday January 06, 2003 @04:05PM (#5027352) Homepage
    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.

  • Mixed Feelings (Score:3, Interesting)

    by jmoriarty ( 179788 ) on Monday January 06, 2003 @04:24PM (#5027511)
    On one hand, I want to say "GO TEAM!" On the other hand, if this just whips around and Big Brother tries to address the problem by removing PVRs from the equation entirely by going after TiVO, et al, I'll be very, very depressed. On the TiVO Community [tivocommunity.com] board, discussion about data extraction are banned for just that reason... no one wants the lightning rod.

    My TiVO is very near and dear to my heart. As just about every member of the TiVO Cult chants, "It changes the way you watch television." I want this technology as much freedom to develop as we can squeeze out of our rapidly gestapoing society.

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