Whose Copyright is it Anyway?

by on November 21, 2005 · 6 comments

Well how about that! On Thursday I mocked James DeLong’s assertion that “the market” will give TiVo users the opportunity to transfer video content to the iPod. And now TiVo seems to have proved me wrong by announcing plans to sell a new software that will enable compatibility between its video recorder and the iPods. “The market,” it seems, has vindicated Mr. DeLong. DRM technology really does give consumers the content they want at a price they can afford!

Not so fast. The premise of DeLong’s argument was that DRM technologies allow copyright holders to earn more revenue for their products, thereby creating a greater incentive to creativity. But TiVo doesn’t own the copyrights to the TV shows and movies recorded with its devices. Indeed, TiVo implemented its DRM scheme over the vociferous objections of the content lobby last year. So where exactly does TiVo get off charging consumers for the privilege of watching other peoples’ content on their iPods?

The DMCA protects DRM systems, not copyright holders. And DRM systems often benefit their creators more than they benefit the owners of the copyrighted content the ostensibly protect. The TiVo DRM scheme benefits TiVo far more than it benefits Hollywood. Apple’s FairPlay scheme benefits Apple far more than it benefits artists or the recording industry.

TiVo achieves iPod compatibility by essentially abandoning DRM protections for TV shows transferred to the iPod. The videos have a “watermark” attached to them, but watermarks are easily removed and seem unlikely to have much deterrent effect. The bizarre upshot of the announcement is that TiVo thinks it may “circumvent” its own DRM scheme in order to transfer video to an iPod (and charge customers for the privilege, even though it’s not their content), but customers who “circumvent” the DRM scheme without TiVo’s help to achieve the same objective are guilty of violating copyright law.

If I were Hollywood, I think I’d be giving serious thought to a lawsuit against TiVo for attempting to profit from others’ copyrighted content. And if I were Mr. DeLong, I think I’d avoid using this announcement as a cast study on the virtues of DRM or the DMCA.

  • http://www.geocities.com/water_skipper/ Randolph Miller

    I don’t agree that TiVo should get in trouble for letting it’s customers convert their TV shows into a different video file format so they can be viewed on the iPod. We’re talking about people who had legal access to the show (on broadcast or cable) and made a copy and now just want to watch that show on a portable player. They’re basically charging for a video file conversion service on a per show basis. If someone amassed a huge library of TV shows legally on the Betamax tapes and just realized they want to switch to VHS or DVD, I don’t see why it would be a big deal for a company to do the conversion for them. Yes, the company would have to charge money. That’s what computers are designed to do: convert from CD to hard drive and network card to the printer and so on. A computer is really just a digital photocopier. There’s nothing wrong with that.

  • http://www.geocities.com/water_skipper/ Randolph Miller

    I don’t agree that TiVo should get in trouble for letting it’s customers convert their TV shows into a different video file format so they can be viewed on the iPod. We’re talking about people who had legal access to the show (on broadcast or cable) and made a copy and now just want to watch that show on a portable player. They’re basically charging for a video file conversion service on a per show basis. If someone amassed a huge library of TV shows legally on the Betamax tapes and just realized they want to switch to VHS or DVD, I don’t see why it would be a big deal for a company to do the conversion for them. Yes, the company would have to charge money. That’s what computers are designed to do: convert from CD to hard drive and network card to the printer and so on. A computer is really just a digital photocopier. There’s nothing wrong with that.

  • http://www.binarybits.org/ Tim

    Randolph: I agree that there’s nothing wrong with TiVo allowing its customers to convert their legally-recorded video to other formats. What I object to is the monopoly on that functionality that’s created by the DMCA–a monopoly whose profits go to TiVo, not to the owners of the copyrighted content that’s being converted. If it weren’t for the DMCA, TiVo wouldn’t be able to charge very much money for this service because you would be able to download conversion utilities made by other vendors for free. TiVo’s profits on this product are going to be entirely due to the monopoly created by the DMCA. And given that TiVo hasn’t produced any of the content in question, I don’t see any reason why they should be given monopoly profits by copyright law.

  • http://www.binarybits.org/ Tim

    Randolph: I agree that there’s nothing wrong with TiVo allowing its customers to convert their legally-recorded video to other formats. What I object to is the monopoly on that functionality that’s created by the DMCA–a monopoly whose profits go to TiVo, not to the owners of the copyrighted content that’s being converted. If it weren’t for the DMCA, TiVo wouldn’t be able to charge very much money for this service because you would be able to download conversion utilities made by other vendors for free. TiVo’s profits on this product are going to be entirely due to the monopoly created by the DMCA. And given that TiVo hasn’t produced any of the content in question, I don’t see any reason why they should be given monopoly profits by copyright law.

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