« FFII and nosoftwarepatents.com to Join | Main | Vagueness in the Written Description »
April 04, 2005
TiVo and Fair Use? Does It Matter?
I received an email yesterday from an author of an online law review note about the fair use practices of broadcast television shows recorded by Personal Video Recorders. As people begin recording and sharing television shows, will it become the new frontier of copyright infringement? While the article discusses a heretofore undecided area of law, I think that the question will never be decided, nor will it need to be, when the question is posed in the greater context of the realities of the industry.
First, in-home TiVo and PVR’s may be just a passing fad. I have a PVR and I know first hand how transforming the technology can be. However, cable television is capable of delivering video on demand and replacing multiple in-home PVR’s with a simple set top box that controls the video feed directly from the cable headend. From a consumer’s standpoint, the system works exactly like TiVo, but all the equipment is located at the cable operator’s facility and the storage of programming is virtually limitless.
New cable plants are being designed with sufficient bandwidth to support multiple independent video feeds to each subscriber. This means that each television monitor is displaying a separate, independent, and controllable video feed from the cable network.
If video on demand is well executed, it could provide much more value and performance than present day PVRs. Time will tell if the cable operators can pull it off, but the potential is there. Note that satellite operators do not have the bandwidth to provide this service, and because every home will require some sort of terrestrial connection, I don’t know how satellite operators will keep up.
Another reason why fair use will never be addressed is that the content providers have access to the golden key that can kill off PVRs: the electronic schedule that is essential to PVR functionality. If and when the copying and sharing of broadcast television programs grows out of hand, the content providers could put the clamps on PVRs by controlling access to the schedules without which the PVR cannot function. At this point, PVRs function only with the blessing of the content providers.
The big difference between video file sharing and audio file sharing is that the video market is controlled by the content providers. The audio market never has been controlled from front to back like the video market. And, the video content providers still hold the keys. The video content providers may wisely avoid litigation by controlling access to the content and also providing a lower cost and/or higher featured alternative to the perceived problem.
The question of what constitutes ‘fair use’ in broadcast video content may be an interesting, but could turn out to be a pointless academic exercise, when viewed in the larger economic picture.
As an aside, I don't normally link to other people's content by request, unless there is a profoundly interesting topic that I want to talk about. However, since the request came from a student at Duke, and I had picked Duke to win it all in this year's bracket and am still smarting from it, I figured he needed some support.
Posted by krajec at April 4, 2005 07:48 AM
Trackback Pings
TrackBack URL for this entry:
http://www.krajec.com/mt/mt-tb.pl/133