Thomas Giovanetti: Victim of DRM

by on April 11, 2006 · 32 comments

I couldn’t help but chuckle at Tom Giovanetti’s post today concerning his inability to back up his favorite shows from his PVR, which crashed last night. As he laments:

The problem is, we have been using the PVR to record 2 years worth of a Spanish language curriculum that is broadcast over an educational channel, and we’ve been using this content to teach our son Spanish. Now the curriculum is gone. It’s not like I’m just inconvenienced in not being able to watch my “24″ episodes. An educational curriculum is lost.

For those who aren’t familiar with Mr. Giovanetti’s work, he’s a frequent and pugnacious commentator on intellectual property issues, and an avowed supporter of the DMCA and digital rights management technologies. He’s a frequent critic of “IP skeptics” and “commonists” who argue that copyright law–and the technological measures designed to protect copyright–have gone overboard.

Today he discovered that sometimes, technological measures designed to deter piracy are a pain in the ass for ordinary consumers–like him.

Here’s a radical proposition: Mr. Giovanetti should be permitted to make a backup copy of the television programs on his PVR, as long as his use of that mateiral stays within the bounds of copyright law.* Moreover, someone else should be permitted to sell him a device allowing him to do so. And finally–here’s the truly radical part–it should be legal to manufacture such a device without getting a license from Dish to do so.

That’s precisely what HR 1201, Rep. Boucher’s DMCA-reform legislation, would permit. Giovanetti’s organization published a paper by Prof. Richard Epstein cricizing Boucher’s bill. Epstein wrote that there “isn’t much of a case” for reforming the DMCA.

I’m not sure what to think about all of this. We DMCA critics find it awfully frustrating when DMCA proponents paint anyone who wants to circumvent DRM as amoral hackers bent on undermining all copyright. Yet Giovanetti (perhaps without realizing it) has just discovered that he, too, would like to circumvent a DRM scheme for a perfectly legitimate purpose. Yet any company building the backup hard drive he seeks would probably be guilty of a felony under the DMCA.

I hope this incident will lead him to take the concerns of DMCA critics–who are inconvenienced by DRM in situations quite analogous to his own–more seriously.

* It’s worth mentioning that Mr. Giovanetti was probably breaking the letter of the law by keeping an entire season of copyrighted television shows on his PVR, as the Supreme Court’s ruling that “time shifting” was fair use was based on the assumption that the content would be viewed once and then erased. But let’s assume, for the sake of argument, that his library of educational programming is in fact a fair use.

  • Lewis Baumstark

    I doubt this is a DRM/DMCA issue. For DRM to be applicable, there must be an available data stream to copy. My understanding from his post is that his DVR does not have any sort of output jack (i.e., an IDE interface) that would facilitate backing up his hard drive, so there is no available data stream. Thus there is no need to protect a data stream using DRM.

    I guess you could make the argument that the DVR manufacturer’s choice to not include an IDE interface is in itself a DRM scheme. But that would, I think, be a stretch. So, even thought I support HR1201, I don’t think it applies here. Mr. Giovanetti could have hacked a backup device onto his DVR without violating the DMCA, since no DRM scheme was present.

    I think this is more a case of the DVR manufacturer not wanting to get sued by the content companies for facilitating illegal distribution. A backup mechanism like he describes would, unfortunately, be a good way to facilitate such distribution (in addition to facilitating a legitimate fair use).

  • Lewis Baumstark

    I doubt this is a DRM/DMCA issue. For DRM to be applicable, there must be an available data stream to copy. My understanding from his post is that his DVR does not have any sort of output jack (i.e., an IDE interface) that would facilitate backing up his hard drive, so there is no available data stream. Thus there is no need to protect a data stream using DRM.

    I guess you could make the argument that the DVR manufacturer’s choice to not include an IDE interface is in itself a DRM scheme. But that would, I think, be a stretch. So, even thought I support HR1201, I don’t think it applies here. Mr. Giovanetti could have hacked a backup device onto his DVR without violating the DMCA, since no DRM scheme was present.

    I think this is more a case of the DVR manufacturer not wanting to get sued by the content companies for facilitating illegal distribution. A backup mechanism like he describes would, unfortunately, be a good way to facilitate such distribution (in addition to facilitating a legitimate fair use).

  • http://www.techliberation.com/ Tim

    I think it’s a safe bet that the content on his DVR is encrypted. Which means that if a third party were to sell a product that modified the Dish device to backup the shows, that probably would be circumvention under the DMCA.

    Another thing he could have done is to purchase a third-party DVR (or build his own), except that we’re fast approaching a world in which all digital video devices have DRM from the coax cable/satellite dish to the TV. That means that in the near future, third party PVRs will effectively be illegal, at least if you want to watch the shows in high definition. That’s because any device that accesses the digital data stream without getting a license from the satellite company will be “circumventing” the DRM scheme.

    So it’s possible that the DMCA isn’t directly responsible for Mr. Giovanetti’s fate–it’s hard to say without knowing more about the details of the device in question. However, what is clear is that the DMCA has prevented people from doing very similar things. For example, the DMCA has banned DVD X Copy, a utility for home duplication of DVDs. I don’t see any essential difference between making a personal backup copy of one’s DVD library, and making a personal backup copy of the TV shows on one’s PVR.

  • http://www.techliberation.com/ Tim

    I think it’s a safe bet that the content on his DVR is encrypted. Which means that if a third party were to sell a product that modified the Dish device to backup the shows, that probably would be circumvention under the DMCA.

    Another thing he could have done is to purchase a third-party DVR (or build his own), except that we’re fast approaching a world in which all digital video devices have DRM from the coax cable/satellite dish to the TV. That means that in the near future, third party PVRs will effectively be illegal, at least if you want to watch the shows in high definition. That’s because any device that accesses the digital data stream without getting a license from the satellite company will be “circumventing” the DRM scheme.

    So it’s possible that the DMCA isn’t directly responsible for Mr. Giovanetti’s fate–it’s hard to say without knowing more about the details of the device in question. However, what is clear is that the DMCA has prevented people from doing very similar things. For example, the DMCA has banned DVD X Copy, a utility for home duplication of DVDs. I don’t see any essential difference between making a personal backup copy of one’s DVD library, and making a personal backup copy of the TV shows on one’s PVR.

  • John L.

    Many Dish Network PVRs include a USB port for backing up and viewing video on a proprietary device, PocketDish which itself is protected by DRM.

    See http://www.pocketdish.com/

  • http://www.mattazuma.com Matt V.

    I don’t think the data on a Tivo is encrypted, since I know there is a way to pull shows off the HD onto a PC, so maybe Dish’s DVR is the same.

    I don’t think DRM is going to make 3rd party DVRs illegal, look at Tivo’s Series 3 DVR, which will have HD recording when they finally release it. Tivo got a license for CableCard slots and Cable Labs recently approved their DVR.

    What DRM is going to kill is DIY PC-based HD DVRs. PC companies are not to going to be able sell PCs with CableCard slots without approval from Cable Labs. And the Newegg’s of the world will not be allowed to sell CableCard slots on PCI cards. I’m also guessing reverse engineering a CableCard system to work with Linux is going to be a non-trivial project.

  • http://www.techliberation.com/ Tim

    I discuss the relationship between TiVo and CableCard in my Cato paper. That section is largely based on this excellent column. The upshot is that there are third-party DVRs, but they’re subject to very restrictive CableCard rules that renders them little different from the set-top boxes the cable industry offers. I’d be willing to bet money (although I don’t have time to slog through several hundred pages of documentation to find out for sure) that the CableCard standard doesn’t permit backups to third-party hard drives.

  • John L.

    Many Dish Network PVRs include a USB port for backing up and viewing video on a proprietary device, PocketDish which itself is protected by DRM.

    See http://www.pocketdish.com/

  • http://www.mattazuma.com Matt V.

    I don’t think the data on a Tivo is encrypted, since I know there is a way to pull shows off the HD onto a PC, so maybe Dish’s DVR is the same.

    I don’t think DRM is going to make 3rd party DVRs illegal, look at Tivo’s Series 3 DVR, which will have HD recording when they finally release it. Tivo got a license for CableCard slots and Cable Labs recently approved their DVR.

    What DRM is going to kill is DIY PC-based HD DVRs. PC companies are not to going to be able sell PCs with CableCard slots without approval from Cable Labs. And the Newegg’s of the world will not be allowed to sell CableCard slots on PCI cards. I’m also guessing reverse engineering a CableCard system to work with Linux is going to be a non-trivial project.

  • http://www.techliberation.com/ Tim

    I discuss the relationship between TiVo and CableCard in my Cato paper. That section is largely based on this excellent column. The upshot is that there are third-party DVRs, but they’re subject to very restrictive CableCard rules that renders them little different from the set-top boxes the cable industry offers. I’d be willing to bet money (although I don’t have time to slog through several hundred pages of documentation to find out for sure) that the CableCard standard doesn’t permit backups to third-party hard drives.

  • Oustet

    lolz owned

  • Oustet

    lolz owned

  • http://voxluna.com VoxLuna

    Looks like karma’s making its rounds…

  • http://voxluna.com VoxLuna

    Looks like karma’s making its rounds…

  • ‘dillo

    I’m looking at my sympathy meter and it’s barely even twitching. I would say he’s on the receiving end of exactly what he’s asked for.

  • ‘dillo

    I’m looking at my sympathy meter and it’s barely even twitching. I would say he’s on the receiving end of exactly what he’s asked for.

  • Goldenpi

    Early Tivos were unencrypted – they used a propritary, undocumented filesystem.

    After information became available on how to read this filesystem, encryption was added. All tivos manufactured before a certain date are non-encrypted, all those after are encrypted.

  • Goldenpi

    Early Tivos were unencrypted – they used a propritary, undocumented filesystem.

    After information became available on how to read this filesystem, encryption was added. All tivos manufactured before a certain date are non-encrypted, all those after are encrypted.

  • John

    I would have to say that he firmly believes that his fecal matter is rather fragrant and pleasing. I rip DVD’s because I have a daughter who likes to load the DVD player. This way a $30 Disney movie is not ruined but a $2 DVD-R. I do the same for audio cds. Back-ups, data redundancy, disaster recovery are terms any technologically wise individual is well aware of and a firm supporter of. So why stop at backing up a HDD? Back-up everything mulitple times that way you will always have it. Thats something that is becoming increasing more difficult to do. If I spent the money to buy why should I have to buy it again when it gets scratched or cracked? That is most definately what back-ups are for.

  • John

    I would have to say that he firmly believes that his fecal matter is rather fragrant and pleasing. I rip DVD’s because I have a daughter who likes to load the DVD player. This way a $30 Disney movie is not ruined but a $2 DVD-R. I do the same for audio cds. Back-ups, data redundancy, disaster recovery are terms any technologically wise individual is well aware of and a firm supporter of. So why stop at backing up a HDD? Back-up everything mulitple times that way you will always have it. Thats something that is becoming increasing more difficult to do. If I spent the money to buy why should I have to buy it again when it gets scratched or cracked? That is most definately what back-ups are for.

  • A. Reader

    What I do not understand is why most people appear as if they will go into withdrawal or die if they do not get their daily video/audio media fix. People should simply refuse to put up with all the DRM/ads/costs associated with all current media devices and content. Quit watching TV and home movies, quit buying audio CD’s, quit paying crazy prices for cable and dish channels, quit using cell phones, quit playing video games. Start going for walks, reading, enjoy family outings, go to traditional movie theaters for an occational movie, get excercise, do yard work, go shopping, get a real hobby… experience real life and quit wasting time and money on media based pastime. It’s not good for you, it’s expensive, it pays money to corporate thieves, it’s a waste of life.

  • A. Reader

    What I do not understand is why most people appear as if they will go into withdrawal or die if they do not get their daily video/audio media fix. People should simply refuse to put up with all the DRM/ads/costs associated with all current media devices and content. Quit watching TV and home movies, quit buying audio CD’s, quit paying crazy prices for cable and dish channels, quit using cell phones, quit playing video games. Start going for walks, reading, enjoy family outings, go to traditional movie theaters for an occational movie, get excercise, do yard work, go shopping, get a real hobby… experience real life and quit wasting time and money on media based pastime. It’s not good for you, it’s expensive, it pays money to corporate thieves, it’s a waste of life.

  • Dennis

    I have a DVD r/w Philips which I cannot use now as Comcast has changed the FIRMWARE on their HDTV desktop boxes..and now I find they have done the same on the OLDER ones.

    they kill the data stream from the PBS station that updates the TV guide built into the device,so you end up with a dead on arival TV guide you cannot use it ..NO station info and no setting recording times,so you cannot USE IT to record programs! What Happened to FAIR USE!

    this is WRONG! My DVD recorder is now a $300 doorstop! because the movie guy,s don,t want me recording movies,BUT I don,t Have Showtime,HBO,etc! so WHY me!

    Dennis

  • Dennis

    I have a DVD r/w Philips which I cannot use now as Comcast has changed the FIRMWARE on their HDTV desktop boxes..and now I find they have done the same on the OLDER ones.

    they kill the data stream from the PBS station that updates the TV guide built into the device,so you end up with a dead on arival TV guide you cannot use it ..NO station info and no setting recording times,so you cannot USE IT to record programs! What Happened to FAIR USE!

    this is WRONG! My DVD recorder is now a $300 doorstop! because the movie guy,s don,t want me recording movies,BUT I don,t Have Showtime,HBO,etc! so WHY me!

    Dennis

  • Vuarra

    I’m glad that Canada does not have DRM. Even though my American STB is not making it easy for me to back up programs (you all do remember the VHS libraries that people used to have?), I can still do it – legally.

    Why do you Americans elect politicians who remove your constitutionally-guaranteed rights? Should that trend continue, there would be no difference between the future USA and the former USSR.

  • Vuarra

    I’m glad that Canada does not have DRM. Even though my American STB is not making it easy for me to back up programs (you all do remember the VHS libraries that people used to have?), I can still do it – legally.

    Why do you Americans elect politicians who remove your constitutionally-guaranteed rights? Should that trend continue, there would be no difference between the future USA and the former USSR.

  • http://www2.fwi.com/~kimble Ed

    It all comes down to this: At some point the data comes out of the whiney boys’ spigot and into your brain unencrypted, at which point you can record the daylights out of it, before, during or after it hits your brain, until of course they start installing filter chips in your brain!!!! But of course yoou won’t remember this because….

  • Joe

    Yes, as Ed says, at some point the data comes out; on my PVR it’s video or S-video + L/R stereo audio. This can be run into the computer, edited as required and then burn a dvd. Or, as in this case for the kid to learn spanish: record onto videocassetes; and the quality is more than adequate for this purpose. At present dvd blanks have become cheaper than cassettes: everyday about 40 cents each in stacks/100 @ costco and nearly every week less, at a store running a sale.

    Yes, the DMCA enthusiast has had a nice comeuppance, but don’t count on it to improve his brain functions, even with filter chips installed.

    As to the politicians, a good slogan is ***DON’T RE-ELECT ANYBODY!*** I perversely am hoping gas will hit $6-10 / gallon this summer, raising the “pain index” to a point where the people will finally THROW THE BUMS OUT in November.

    Cheers.

  • http://www2.fwi.com/~kimble Ed

    It all comes down to this: At some point the data comes out of the whiney boys’ spigot and into your brain unencrypted, at which point you can record the daylights out of it, before, during or after it hits your brain, until of course they start installing filter chips in your brain!!!! But of course yoou won’t remember this because….

  • Joe

    Yes, as Ed says, at some point the data comes out; on my PVR it’s video or S-video + L/R stereo audio. This can be run into the computer, edited as required and then burn a dvd. Or, as in this case for the kid to learn spanish: record onto videocassetes; and the quality is more than adequate for this purpose. At present dvd blanks have become cheaper than cassettes: everyday about 40 cents each in stacks/100 @ costco and nearly every week less, at a store running a sale.

    Yes, the DMCA enthusiast has had a nice comeuppance, but don’t count on it to improve his brain functions, even with filter chips installed.

    As to the politicians, a good slogan is ***DON’T RE-ELECT ANYBODY!*** I perversely am hoping gas will hit $6-10 / gallon this summer, raising the “pain index” to a point where the people will finally THROW THE BUMS OUT in November.

    Cheers.

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