FAQ: What Microsoft's block of 'American Gladiators' teaches us
Users of Windows Vista Media Centers who were blocked from recording two NBC shows last week are eager to learn why Microsoft is taking marching orders from broadcasters.
EFF's Danny O'Brien says digital-TV viewers must not lose the rights they owned as analog users.
(Credit: Greg Sandoval)Microsoft is soon expected to explain why it inserted technology into its Vista operating system that blocked digital-TV viewers from recording their favorite shows. Their current excuse--that Microsoft adheres to regulations proposed by the Federal Communications Commission--makes little sense, as the only rules on controlling recording from broadcast TV were struck down by the courts in 2005.
The controversy began last week, when some Vista Media Center users trying to record from over-the-air digital or basic cable television discovered that they were barred from recording NBC TV shows American Gladiators and Medium.
In what for some was a stunning acknowledgment by Microsoft, the software maker said Windows Media Center honors the flags used by broadcasters to limit recording.
That triggered a wave of speculation. Some people asked if Hollywood had declared war on digital video recorders (DVRs). Some Windows users suspected Microsoft of possibly cutting financial deals with the studios. Others questioned whether a bug within Vista may have caused the block.
To this point, there are more questions than answers. We tried to address a few here.
Are cable and network TV companies trying to undermine the power of DVRs?
There is nothing to indicate that the blocking of the two NBC Universal shows represents some new attempt by the network or the entertainment industry to restrict the recording of over-the-air TV shows. In interviews with CNET News.com, executives of two DVR companies say broadcasters have not pressured them to limit recording--lately, at least.
"I'm not aware of any effort by the industry to prevent people from recording their shows," said Jim Denney, TiVo's vice president of product marketing. He qualified his answer by saying Hollywood doesn't attempt to restrict recording "outside of the regulations already in place, a la CableCard rules." We'll get to those rules later.
One important point to note is that broadcasters frequently block DVRs from recording TV content that isn't broadcast "over the air" (i.e. received by an aerial). Premium cable channels can prevent the recording of movies delivered via video-on-demand, or VOD. But what broadcasters haven't done before is to try to systematically block the recording of content delivered over analog channels or over-the-air digital.
That doesn't mean that they won't, according to Danny O'Brien, a staffer at the Electronic Frontier Foundation, which advocates for Internet users and has launched its own investigation into the NBC block. O'Brien notes that broadcasters have always felt threatened by TiVo and other devices that help viewers skip commercials.
"What the broadcasters and content owners have always wanted is a veto over new technologies," O'Brien said. "They want some way of controlling the powers of devices that they don't like. That's what the fight over the broadcast flag was about."
What is a broadcast flag?
The term "broadcast flag" has taken on several meanings, but it is best known for describing a set of proposals made by the FCC. The commission wanted those that made television software and hardware equipment to honor the flag, a code that broadcasters can insert into the data stream of digital-TV shows that typically place restrictions on the copying of shows.
The courts ruled against the FCC's plan in 2005, saying the regulator couldn't force electronics makers to interpret TV signals a certain way. Since then, those software and hardware companies have had the option of deciding whether to design their systems to obey the broadcasters' flags.
It's important to note that the flag rules were never meant to ban the recording of over-the-air digital broadcasts. They were designed to wall off content, and prevent mass reproduction and piracy. But Vista's remote copy control apparently goes much further and may forbid the recording of broadcast TV shows.
How many people could be affected by this issue?
About 30 million U.S. households are equipped with a DVR, according to research firm Leichtman Research Group. Forrester Research says about a third of the country's households own DVRs and predicts that the percentage will climb to 50 percent by 2010. That number is likely to rise rapidly after February 17, 2009, when all full-power U.S. broadcast television stations will switch from analog to digital broadcasts.
As for Window users, more than 140 million copies of the Vista operating system have been sold, Microsoft said last month. Both Vista Home Premium and Vista Ultimate contain Media Center, though a tuner is needed to record from TV.
What companies have acknowledged honoring copy controls?
It's unclear whether any other software or hardware makers follow a policy similar to Microsoft's.
O'Brien says companies that do "should come clean" and let consumers know that they could be buying a product that may limit their ability to record.
How do CableCard rules apply?
A CableCard is an interface that enables U.S. consumers to view and record digital cable TV. It allows people to bypass set-top boxes and watch cable broadcasts on DVRs, computers, and TV sets, provided that they have been sanctioned by CableLabs.
CableLabs, a consortium created by the cable industry, must certify all CableCards. Microsoft's Vista operating system supports CableCards, and this can effectively turn a sanctioned PC into a DVR.
CableLabs require CableCard-equipped devices to come with DRM and adhere to commands from broadcasters. Those commands include "copy never," "copy once," and "copy freely." Typically, consumers bump into these flags only when trying to record video-on-demand or pay-per-view programming from premium cable channels. VOD is often protected with a "copy never" or "copy once" command.
To date, it is unclear whether any broadcaster has intentionally tried to use the "copy never" or "copy once" commands to limit recordings from over-the-air digital or basic cable. It's safe to say the practice isn't common. But EFF says the block of American Gladiators proves that it can be done, and O'Brien expects that broadcasters will be under pressure to try it in the future.
Do DVR owners have any rights?
You bet. "You have a fair-use right to record TV content, as specified by the Supreme Court in the now-famous Betamax case," O'Brien said.
"The important thing to remember," he added, "is that digital-TV viewers must not lose any of the rights they owned as analog users."
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
Also, Microsoft just keep demonstrating that they are simply a company not to be trusted. They just dont get it anymore.
Everyone 'in the know' had to have known that this functionality was in Windows Media Center in Vista.... so why didn't they bring this up LOOOOOONG ago when Microsoft was first saying they were going to put this functionality in because their arms were being twisted by the content providers?
Telling your customers, who all have busy lives that make scheduling to someone else's requirements a near impossibility, that they can only watch a show when the station feels like showing it is the same as telling them that they can't watch it. And if you're telling your viewers they can't watch your shows, then you're an idiot. The company will go bankrupt and stockholders in those companies are going to lose their shirts.
If I rember that is why most stations run shows in varying time slots. Now in many cases some broadcasters offer an OnDeman feature *for a cost* that allows you to do this.
Now in the past when you bought tape or recored shows, in the past you fell under. http://www4.law.cornell.edu/uscode/17/1004.html
So you still paid at least $1.00 of your VHS tape cost towards the recording.
Even with Tivo you pay a fee, since TIVO is paying it on your behalf.
Open source? I'm sure the system will catch up the loop holes.
But like I said the Big 3 over the past 60 years had no issues with making money and keeping people happy.
Its todays new belief that everythign should be free and when I want it.
I would assume there are many reasons for this.
In the past when it was over the air, so we are talking the 70's here, the income for TV channels was advertising. In the Mid - late 70's most households did not have VCR's so recording was not a huge issue. As Tape became more common, a TAX was placed on these tapes to cover costs to broadcasters. Similar ot the TAX on Audio casettes. We as the end user never saw this since it was already built into the price. It was anywhere from 3% to 10% was on the blank material as well as the recorder.
So the fact you recorded and later skipped commercials..etc.. made up for any commercial fee's.
This continued with DVD' CD...etc..etc. Since typically you could figure a value of tax based on length of the recording.
DVR's change the playing field. How do you collect levies? How do you set a levie?
Now we can argue that the Cable companies make enough money out of the fee's they charge us so we should have it for free?
So we are jumping into the assumption that we should own the rights to replay content just becuase we pay a charge for content delivery.
I am going to assume then that these companies want to control what content is free for people to watch, and what they believe has a finacial impact on them.
The one thing I am bemused about over the past 7-10 years is the "Free" concept. Every one believes it should be free, movies, TV, Music.
In this model how do people make up for the loss of income? Directed advertising? Well that goes out the window when you can bypass it. Advertisers will work on other methods of getting your attention.
So beyond the Vista/DVR issue. I have to ask people? How do they expect artists and broadcasters to earn money?
As for commercial skipping. Here's the message I have for US broadcasters. Make them more relevant and interesting and people might watch them. I mean what's the point of those "Ask your doctor about <fill in the black>..." commercials where they can't even tell what the drug is for. 99% of products that are advertised I will never buy and those that I buy, I already know about. I mean how many more times do I need to see a Coke commercial? Really, I'm not gonna buy more coke.
All we are asking broadcaster is to rethink their business model instead of trying to fight technology. DVRs came about, because people were so completley fed up with living by the broadcasters schedule and watch stupid non-relevant commercials. I mean before the DVR I changed channels when commercials came on or I went do something else. DVRs actually improve the quality of TV.
Interesting, because it puts open source projects in the driver's seat for strictly legal reasons.
I really don't undertand this method of thinking. Say you have an farm? you grow plants that you sell to people. Every year you loose some money to people who wander in at night or when you are not looking and "steal" your product.
You build this into your cost model, and you continue to sell albeit at a higher price.
Now people have greater access to your farm since a new highway went up, and your quality of produce is well know.
You now find more and more people are running into your field, and stealing your product. So you jake the price up. Now its getting to the point that people are actually setting up groups to come and get your produce. They love it the stuff is great and all you need to do is run down that ditch and fill up your bag. Take it home share it with friends..etc..etc.
You finally petition your local government to put some sort of fence between you and the highway so all these people will stop stealing your produce.
So the people cry out how can the governement put up a fence in a public ditch to block access to a private field? We have the right to be in that ditch.
So no fence goes up, and a few years later people come buy and watch the bank auction at the farm. The field goes back to wildflower, and now they have to pay a higher price for a lower quality product in there store.
To counter Wolivere's argument, the reason a tax doesn't work is that it spends government resources to reward a private group with funds that it may not deserve. It assumes they've lost sales when they may not have or may never have made otherwise. As with subsidies for other industries such as auto making, it simply ends up encouraging bad business decisions. It's corporate welfare. Also worth noting that TV is unlike other media in that it is free, over-the-air, and this is where the issue with Vista comes in. Fast forwarding through commercials is not the same as blocking people from recording shows for the purpose of timeshifting. If that were the problem, why not just block fast forwarding? The real reason is the proliferation of episodes for sale on sites like iTunes where people now have to pay for stuff that was once free aside from your cable bill. If you bring that into consideration, the broadcast flag makes sense, at least to content providers.
Really, it is simply time to tell television content makers that they cannot charge for episodes online, because they are ALREADY being paid for them out of cable and satellite revenues, and are getting their 'fair share' of profit.
Even though when you bought a VHS tape and maybe recored multiple times over that tape. A minimum $1 from the purchase of that tape was recaptured in a levy, and if your VCR was lets say in the $100 $300 range anywhere from $10-$30 was captured from that in a levy fee.
So you had fair use but you still actually paid some form of fee.
Microsoft didn't really have a choice in the matter and now that it is out in the open, they are getting support from the community who don't like this...... they might finally update and REMOVE this functionality from Media Center.
There have been NUMEROUS cases where people were prevented from recording TV shows on Tivos. In all cases so far this was on cable, and the bits were set by the local cable provider, sometimes in error. Sometimes people managed to get the cable provider to fix this, sometimes not. You can find a lot of discussion of this on the tivocommunity forums.
Agreed that this case is different, in that it is the first verified case of over the air prevention. NBC says the bits were set "in error". Not sure what that means, but a little more digging would be useful. Presumably the EFF will do this.
Yes any device that is verified as obeying such flags should be considered less useful and capable than any device that doesn't. So Microsoft's Media Center software (unfortunately the only choice if you want to use cable card) is not as good as MythTV and others. And cable reception isn't as good as analog ATSC. And ATSC isn't as good as analog. But even analog has ways of flagging content using the old line 21 tricks MacroMedia has defined...
"The court stated that the Commission could not prohibit the manufacture of computer or video hardware without copy protection technology because the FCC only has authority to regulate communications, not devices that receive communications."
What does this mean? It means the FCC does not have the right to block the manufacture of computer hardware that does not have the abiity to see this flag.
They do have the right though to regulate the communication to said device. So toss out all this they can't do it the broadcasters can do it. (period)
You also need to read Fair USE
"Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such "
- by farmer-dave May 22, 2008 3:56 PM PDT
- NEWS FLASH! AT&T's U-verse service now does the same thing for ALL Pay Cable channels (HBO, Showtime, Starz, Cinemax, etc.). Since their DVR is integrated with their IP-TV service, there's no way around it. I'm trying to decide if that's a reason to switch.
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Showing 1 of 2 pages (35 Comments)Probably not, since I only watch/record those channels when they have a "free preview".