The DMCA vs. Interoperability

by on November 17, 2005

Supporters of the DMCA keep telling us that “the market” will give us the fair use privieges that the DMCA took away. What about this one?

TiVo puts a DRM wrapper on the MPEG-2 video they store, so once you download it, you can only view it if (a) you have a media access key (comes with the TiVo) and (b) their software on your PC to control the viewing experience. If you remove the DRM wrapper, then you’ve circumvented the TiVo DRM.

The iPod, of course, doesn’t understand the TiVo DRM, which is based on a Microsoft DRM technology. There’s no way to view TiVo video on your iPod without removing the wrapper. There’s the rub. As a consequence of the DCMA, if you download a show from your TiVo and remove the TiVo DRM to put it on your iPod, you’ve broken the law. Keep in mind that we’re not talking about putting the show on the Internet, giving it to your friends, or anything else. Just moving it from one device you own to another device you own to watch then throw away.

DCMA supporters would jump in here to state that the DCMA is protecting the rights of people who distribute the shows. After all, perhaps NBC doesn’t want me to watch “The Apprentice” on my iPod. Ironically, however, it’s not NBC’s rights that are being protected since NBC has no say in the matter. They may, in fact, like the fact that I’m going to watch their show and the advertisements which are built into it in large part. One more viewer!

So what is being protected by the DCMA in this case? TiVo’s business model. I have to buy TiVo boxes or use their program to watch shows recorded with a TiVo. This has nothing to do with protecting the intellectual property of NBC and everything to do with protecting the interests of TiVo. TiVo is using the DCMA to lock in customers. It’s as if Congress made moving your stock data from MyYahoo! to Motley Fool a crime so that Yahoo! could retain its customers.

I wonder if James DeLong or other DMCA supporters could tell us when “the market” will give me the opportunity to buy the right to watch TiVo-recorded TV shows on my iPod. I’m not going to hold my breath.

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Tim Lee / Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.

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