The DMCA vs. Video Jukeboxes

by on July 14, 2006 · 22 comments

I sure wish I’d noticed the Kaleidescape lawsuit when I was writing my DMCA paper. Although not technically a DMCA case (they have a license from the DVD CCA, who is claiming its terms were violated), it’s clearly illustrates how the DVD cartel is wielding the power given to it by the DMCA. The dispute has nothing to do with piracy and everything to do with control: the DVD CCA wants to dictate what features DVD players are allowed to have, and Kaleidescape had the gall to include features that weren’t on the cartel’s list of approved features.

One of the weaknesses of the case against the DMCA is that there’s a limited number of concrete examples of innovations that have been chilled. I think that’s because most of them never got off the ground: their perspective inventors didn’t bother creating because they knew their inventions would be illegal. Of course, that’s sheer speculation on my part. But here’s a concrete example of a category of device that probably would exist right now if not for the DMCA: video jukeboxes. It does for DVDs what MP3 players did for CDs. If the iPod is 1000 songs in your pocket, a Kaleidescape is 1000 DVDs in your living room.

I think it’s almost certain that in the absence of the DMCA, there would today be a thriving market in home media devices that allow you to rip your DVDs and then stream them to your TV. Instead, there’s only one such device, it costs $25,000-$100,000, and the DVD CCA is doing its best to force it off the market.

I haven’t been able to find any news reports on the case in the last year. Does anyone know what became of the lawsuit? Kaleidescape appears to still be selling their product.

  • Randy Picker

    With a cheap video jukebox, what would prevent me from renting a movie at Blockbuster and immediately ripping it to my VJ? Taking my $18 per month/3 movies at a time Netflix subscription and converting into a lifetime’s worth of content? The instant the red envelope would arrive, rip it and return it? I think that I am getting throttled already by Netflix, imagine what that would look like with the VJ?

    As a legal matter, with the VJ in place, how would we preserve the distinction between rental–temporary access–and ownership–permanent access?

  • Randy Picker

    With a cheap video jukebox, what would prevent me from renting a movie at Blockbuster and immediately ripping it to my VJ? Taking my $18 per month/3 movies at a time Netflix subscription and converting into a lifetime’s worth of content? The instant the red envelope would arrive, rip it and return it? I think that I am getting throttled already by Netflix, imagine what that would look like with the VJ?

    As a legal matter, with the VJ in place, how would we preserve the distinction between rental–temporary access–and ownership–permanent access?

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

    An excellent question, and one I don’t have a good answer for. But it’s hardly a new issue: people can rip their friends’ CDs and put them on their iPods. And of course, Hollywood’s major argument against the VCR was that people would build libraries of recorded movies, which did happen to some extent.

    I think the practical answer is that most people wouldn’t do so, for the same reasons that most people still pay for music even though they can get it for free from Grokster or their friends’ CD collections. Some people will use their kaleidescapes to steal movies, just as they do with their iPods, VCRs, and TiVos. But I don’t think that’s a sufficient reason to ban the technologies in question.

  • Anon

    here’s a list of video juke boxes which you simply use your computer to do all the ripping:

    http://www.avsforum.com/avs-vb/showthread.php?t=585212

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

    An excellent question, and one I don’t have a good answer for. But it’s hardly a new issue: people can rip their friends’ CDs and put them on their iPods. And of course, Hollywood’s major argument against the VCR was that people would build libraries of recorded movies, which did happen to some extent.

    I think the practical answer is that most people wouldn’t do so, for the same reasons that most people still pay for music even though they can get it for free from Grokster or their friends’ CD collections. Some people will use their kaleidescapes to steal movies, just as they do with their iPods, VCRs, and TiVos. But I don’t think that’s a sufficient reason to ban the technologies in question.

  • Anon

    here’s a list of video juke boxes which you simply use your computer to do all the ripping:

    http://www.avsforum.com/avs-vb/showthread.php?t

  • chris

    “Taking my $18 per month/3 movies at a time Netflix subscription and converting into a lifetime’s worth of content? The instant the red envelope would arrive, rip it and return it?”

    What’s to stop you from doing that also with your computer, dvd decrypter and a dvd burner? Or your own local storage array /NAS? Nothing, at my peak of blockbuster.com rentals i was getting 12 dvds a month. >:)

  • Randy Picker

    But when you say that it isn’t a new problem, Hollywood would say that this is precisely the difference between CDs and DVDs: clunky add-on DRM for CDs, a failure or worse (see the Sony rootkit), versus planned DRM for DVDs. For the studios, the DVD with DRM was precisely about avoiding the problems with the CD.

    As to the availability of free music on Grokster vs DVD ripping, note the differences. The Grokster world is one of substantial uncertainty, where the downloaded software can junk up machines in a strong way. Ripping DVDs would have few of the practical risks associated with the p2p ecosystem, and you can see how easily you would stumble into ripping and storing. The movie is due back to Hollywood Video, you haven’t finished it, don’t want to pay the late fees? Just rip it and store it. Entering the p2p system is much more of a discrete, noticeable step–downloading the software. It would be easy to slide into DVD ripping.

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

    Professor,

    Thanks for commenting!

    If DRM had been designed into the CD format, the RIAA would have won Diamond and Apple would probably never have invented the iPod (remember that the iPod came out 18 months before the ITMS). Certainly that might have reduced piracy, but it strikes me as throwing the baby out with the bath water. Is your contention that it would have been better (from a policy perspective) if Diamond had lost and non-industry-approved MP3 players had been declared illegal?

    I agree with your general point that permitting devices like Kaleidescape makes it easier, on the margin, for consumers to infringe copyright. There’s clearly a trade-off that must be weighed. Personally, I like the balance the courts struck in Sony and Diamond better than the post-DMCA balance in which the entertainment industry effectively has a veto over what devices the consumer electronics industry can make. I think that the anti-piracy benefits of the restrictions are over-stated, and the harm of banning circumvention devices is underestimated.

  • chris

    “Taking my $18 per month/3 movies at a time Netflix subscription and converting into a lifetime’s worth of content? The instant the red envelope would arrive, rip it and return it?”

    What’s to stop you from doing that also with your computer, dvd decrypter and a dvd burner? Or your own local storage array /NAS? Nothing, at my peak of blockbuster.com rentals i was getting 12 dvds a month. >:)

  • Randy Picker

    But when you say that it isn’t a new problem, Hollywood would say that this is precisely the difference between CDs and DVDs: clunky add-on DRM for CDs, a failure or worse (see the Sony rootkit), versus planned DRM for DVDs. For the studios, the DVD with DRM was precisely about avoiding the problems with the CD.

    As to the availability of free music on Grokster vs DVD ripping, note the differences. The Grokster world is one of substantial uncertainty, where the downloaded software can junk up machines in a strong way. Ripping DVDs would have few of the practical risks associated with the p2p ecosystem, and you can see how easily you would stumble into ripping and storing. The movie is due back to Hollywood Video, you haven’t finished it, don’t want to pay the late fees? Just rip it and store it. Entering the p2p system is much more of a discrete, noticeable step–downloading the software. It would be easy to slide into DVD ripping.

  • Randy Picker

    Apple would have entered vertically integrated earlier; as best I can tell, vertical integration was the plan all along:

    http://www.wired.com/news/mac/0,2125,64286,00.html

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

    Professor,

    Thanks for commenting!

    If DRM had been designed into the CD format, the RIAA would have won Diamond and Apple would probably never have invented the iPod (remember that the iPod came out 18 months before the ITMS). Certainly that might have reduced piracy, but it strikes me as throwing the baby out with the bath water. Is your contention that it would have been better (from a policy perspective) if Diamond had lost and non-industry-approved MP3 players had been declared illegal?

    I agree with your general point that permitting devices like Kaleidescape makes it easier, on the margin, for consumers to infringe copyright. There’s clearly a trade-off that must be weighed. Personally, I like the balance the courts struck in Sony and Diamond better than the post-DMCA balance in which the entertainment industry effectively has a veto over what devices the consumer electronics industry can make. I think that the anti-piracy benefits of the restrictions are over-stated, and the harm of banning circumvention devices is underestimated.

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

    Interesting, I hadn’t seen that article. However, note this passage:

    Knauss noted that there were no demands to add FairPlay, Apple’s copy-protection technology, which was appended to the second-generation iPod to coincide with the introduction of the iTunes music store.

    “There was no discussion of (digital rights management),” Knauss said. “Their belief was DRM would hurt sales when they rolled out the music store. They specifically wanted no DRM in the original iPod.”

    So at a minimum, the iPod would have been held up until the ITMS was set up, right?

    To this day, many customers mostly put their existing CD collections on their iPods rather than purchasing music from the ITMS. How successful would the iPod have been if people had had to purchase an iPod and then immediately start rebuilding their existing music library with iTunes songs? I doubt I’d own an iPod today if I’d been forced to spend hundreds of dollars re-building my music collection.

  • Randy Picker

    Apple would have entered vertically integrated earlier; as best I can tell, vertical integration was the plan all along:

    http://www.wired.com/news/mac/0,2125,64286,00.html

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

    Interesting, I hadn’t seen that article. However, note this passage:

    Knauss noted that there were no demands to add FairPlay, Apple’s copy-protection technology, which was appended to the second-generation iPod to coincide with the introduction of the iTunes music store.

    “There was no discussion of (digital rights management),” Knauss said. “Their belief was DRM would hurt sales when they rolled out the music store. They specifically wanted no DRM in the original iPod.”

    So at a minimum, the iPod would have been held up until the ITMS was set up, right?

    To this day, many customers mostly put their existing CD collections on their iPods rather than purchasing music from the ITMS. How successful would the iPod have been if people had had to purchase an iPod and then immediately start rebuilding their existing music library with iTunes songs? I doubt I’d own an iPod today if I’d been forced to spend hundreds of dollars re-building my music collection.

  • Doug Lay

    Prof. Picker:

    That’s a good article about the iPod. However, I don’t see anything there to support the claim that Apple would have vertically integrated EARLIER if the Diamond decision had gone the other way. If DMCA-backed vertical integration can deliver results to consumers earlier, where’s our vertically-integrated video jukebox service?

  • Doug Lay

    Prof. Picker:

    That’s a good article about the iPod. However, I don’t see anything there to support the claim that Apple would have vertically integrated EARLIER if the Diamond decision had gone the other way. If DMCA-backed vertical integration can deliver results to consumers earlier, where’s our vertically-integrated video jukebox service?

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

    Doug:

    Arguably, MovieBeam is a vertically-integrated video jukebox service, although it doesn’t seem to be taking off so far. Presumably, it would sell better if it gave people the option of ripping their existing DVDs onto it. And it would also probably sell better if its DRM scheme weren’t so restrictive.

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

    Doug:

    Arguably, MovieBeam is a vertically-integrated video jukebox service, although it doesn’t seem to be taking off so far. Presumably, it would sell better if it gave people the option of ripping their existing DVDs onto it. And it would also probably sell better if its DRM scheme weren’t so restrictive.

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