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."
A week after some users of Vista Media Centers were prevented from recording two NBC Universal shows, the network acknowledged Monday that it inadvertently blocked some people from recording the shows.
The owners of Windows Vista Media Centers were prevented from recording American Gladiators and Medium last Monday. At the message board The Green Button, Vista users gathered to complain about receiving a prompt that informed them that the broadcaster had "prohibited recording of this program."
"We made an inadvertent mistake," an NBC spokeswoman said in an interview with CNET News.com. "We're not aware of any other complaints, and we believe we have addressed the problem."
For a week, fans of digital video recorders wondered if Hollywood was trying to force DVR (digital video recorder) owners to watch commercials. Historically, TV and cable networks have resented DVRs for enabling viewers to jump past ads. The Federal Communications Commission proposed rules that would require electronics manufacturers to set up their technologies to block recording at the request of TV networks.
The courts ruled that the FCC was out of bounds, but there is nothing to stop Microsoft or other electronics makers from choosing to adhere to flags.
The NBC spokeswoman said the network had no intention of blocking the show but declined to specify how the error was made. Flags that have been issued accidentally aren't uncommon, some industry insiders say. While acknowledging that it "fully adheres to flags used by broadcasters," Microsoft said that it was working with content owners to reduce the number of false flags.
"The success of the entire distribution chain is dependent on all involved maintaining the necessary checks and quality control so that coding is correctly applied," a Microsoft spokeswoman wrote in an e-mail to News.com.
Meanwhile, the larger issue for some is that Microsoft and possibly other hardware and software makers will honor broadcast flags.
"Customers need to know who Microsoft is listening to and how that affects their equipment," said Danny O'Brien, a staffer at the Electronic Frontier Foundation, an advocacy group for Internet users.
The EFF says it's important for consumers to know whether their DVRs can be controlled by entertainment companies.
Microsoft has acknowledged that Windows Media Centers will block users from recording TV shows at the request of a broadcaster.
"Microsoft included technologies in Windows based on rules set forth by the (Federal Communications Commission)," a Microsoft spokeswoman wrote in an e-mail to CNET News.com. "As part of these regulations, Windows Media Center fully adheres to the flags used by broadcasters and content owners to determine how their content is distributed and consumed."
The software company was responding to questions about why some users of Windows Vista Media Center were prevented from recording NBC Universal TV shows, American Gladiator and Medium on Monday night.
The "rules," in which the spokeswoman is apparently referring to are those proposed by the FCC, which would require software and hardware makers honor "broadcast flags." The flags are code that broadcasters can insert into the data stream of TV shows that typically require restrictions on the recording of the shows. What she didn't say is that the "rules" aren't rules at all.
The courts struck down the FCC's proposal in 2005, saying the regulator lacked the authority to tell electronics makers how to interpret the signals they receive. Since then, Microsoft and other manufacturers have retained the option of whether to honor the flags.
News that the world's largest software maker has voluntarily agreed to help broadcasters control the recording of their shows is bound to outrage enthusiasts of digital video recorders, as it represents the biggest threat to the practice known as time shifting since the FCC's attempt to require flag adherence.
"Microsoft has put the requirements of broadcasters above what consumers want," said Danny O'Brien, a staffer at the Electronic Frontier Foundation, an advocacy group for Internet users that is looking into Monday's block. "They've imposed restrictions way beyond what the law requires. Customers need to know who Microsoft is listening to and how that affects their equipment. Right now, the only way customers know what Microsoft has agreed to is when the technology they've bought suddenly stops working. Microsoft needs to come clean and tell its customers what deals it has made."
The question of whether NBC Universal issued a flag for American Gladiator has yet to be answered. The network said last week that it needed time to look into the matter. Microsoft's spokeswoman did not offer any information on whether NBC Universal activated a flag. The software company did, however, inform us that accidents do happen.
"In some cases content may be incorrectly flagged in the actual broadcast, which may affect the consumer's TV experience," Microsoft's spokeswoman wrote. "The success of the entire distribution chain is dependent on all involved maintaining the necessary checks and quality control so that coding is correctly applied thereby avoiding any unexpected outcome."
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