Whose Copyright is it Anyway?

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.

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