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First, They Came For The Tivo Users
What is one to make of the proposed Republican fast forwarding ban? At first it seems like a bad joke. My father, when I informed him of this bill, seemed literally unable to believe that this was really happening. The really frightening thing, as one of Nick Confessore's correspondents points out, is the prospect of an enforcement mechanism for this rule. To make it work, your viewscreen would have to be giving some pretty comprehensive information to the state.
More realistically, there won't be an enforcement mechanism. This, too, is a problem. Legal systems work much better when people internalize the norms that the laws formalize than when they rest purely on effective detection and punishment of violations by the formal criminal justice apparatus. When you pass absurd laws that are easily and commonly violated (as seen notably in the treatment of marijuana possession and MP3 sharing) future generations grow up learning the lesson that the law is not something to be respected, either normatively or as a matter of enforcement. The consequences of loading one more straw onto the camel's back won't necessarily be catastrophic, but they're unlikely to be beneficial.
November 23, 2004 | Permalink
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Comments
That might be one of your most tasteless titles ever, MY. Huzzah.
Posted by: Kriston Capps | Nov 23, 2004 1:13:44 AM
It's already illegal to practically construct a DVD player that fast forwards past the commercials on a DVD. It's a DMCA violation. I wonder if the new language was probably targeting VHS AND opensource dvd players.
Both restrictions are complete and utter bullshit.
Posted by: jerry | Nov 23, 2004 1:14:03 AM
The point of such a law would not be to have a "fast-forward" police watch over the populace and charge them with the crime. Rather, it would be to make it impossible to sell technology that makes fast-forwarding (through commercials) possible. Thus, no one will care if you somehow manage to fast-forward at home. But it will not be done with any off-the-shelf bit of technology. It will have to be done in some hackish sort of way with an illegal mod-chip from Russia, or by a completely free software implementation on common hardware, where all the software is housed overseas. In other words, the vast majority of Americans will be unable to obtain the technology to fast-forward through commercials (at least, that would be the hope of the entertainment industry).
It's a government mandated retardation of technology to protect an industry that is terrified that it may have to change its business model.
Ditto for the broadcast flag.
Posted by: Timothy Klein | Nov 23, 2004 1:15:29 AM
The absurdity of the bill is an illusion, no matter how funny it is to pretend otherwise. The all-too-rational and intentional point of the bill was to insert language into copyright law to suggest that the content providers have a property interest in viewers seeing the show more-or-less as transmitted--that any edited version is a "derivative work" requiring permission from the copyright holder. (With the specific exception of "family-friendly" edits for home use--gotta serve the base, after all.) To what end? Not so as to actually enforce the claim against the individual viewer at home happily time-shifting and skipping through commercials, but so as to create the basis for a claim--and eventual judicial settlement or legislative resolution--against the TiVo/DVR people.
To put it briefly, the current business model of commercial TV, especially broadcast TV, is not sustainable. The ad buyers are paying the media companies to produce ratings (e.g., viewers), but they know they're not getting what they're paying for because more and more people are finding ways to view the shows without watching the commericals.
What is to be done? Product placement, sit-commercials, CNN-style tickers running on the bottom/side/top are a partial fix, but much more revenue is needed to serve the corporate interests of the media companies. Hawking coffee mugs and Yanni DVDs doesn't do PBS much good, and charging subscription prices meets resistance and may not be possible for the mass of consumers.
Thus, this legislation. First, we create a property right that is rountinely violated, and then the other shoe drops: we impose a forced licensing fee onto TiVo, DVR, etc. so that they compensate the media companies for the loss of ad revenue from the inevitable skipping of commercials that comes with their service. TiVo is legally defined, consistent with the corporate media perspective, the knowing (if not intentional) enabler of copyright violations on a massive scale, and, again from the corporate media perspective, ought to compensate those on whom they are "wrongfully" imposing a loss of revenue.
BTW: it's esentially a replay (in fast-forward?) of the fight over the VCR's in the early days of that technology.
Posted by: Darius | Nov 23, 2004 1:18:36 AM
What Timothy Klein said. They won't be arresting people for fast-forwarding through commercials. They will make the technology to fast-forward illegal to sell and thus no one will be able to do so without a hack of some sort.
Boy, the mandate sure has coughed up some interesting stuff already: the DeLay rule change, the tax return stuff, now this. Wonder what's next?
(I think instead of a Gotterdamerung of crazed right-wing laws fundamentally altering the fabric of society and repealing the 20th century, we're going to see a lot of cheap two-bit chicanery like this).
Posted by: Brian | Nov 23, 2004 1:31:17 AM
Why not just abolish all laws and make people guess at which ones the state finds inimical? That'll fuck 'em up.
Posted by: snarkey | Nov 23, 2004 2:40:38 AM
I just learned my Congressman (a Democrat!) is a co-sponsor. He just received an email from asking why.
Hopefully the Senate will modify this bill.
Posted by: EG | Nov 23, 2004 2:41:11 AM
BTW: it's esentially a replay (in fast-forward?) of the fight over the VCR's in the early days of that technology.
And that fight was won by the margin of one Supreme Court justice. Scary.
Posted by: digamma | Nov 23, 2004 3:15:43 AM
Could this be payback for the velvet glove treatment the media gave Bush?
Posted by: Michael7843853 | Nov 23, 2004 5:12:16 AM
"To make it work, your viewscreen would have to be giving some pretty comprehensive information to the state. More realistically, there won't be an enforcement mechanism."
Both of these statements are dead wrong.
Implementing this technologically and legally would be trivial.
- You send a "Do Not Fast-Forward" flag on broadcast commercials.
- You make it illegal to sell equipment that doesn't respect the flag.
Done and done.
Congress has already done something very similar in making it illegal to sell a consumer camcorder that won't respect the Macrovision flag on analog signals coming out of DVD players and VCR's.
Do Not Fast-Forward would be no different.
Posted by: Petey | Nov 23, 2004 5:51:55 AM
Not to suggest that the provisions discussed in that TechReview article wouldn't be bad, but it's important to point out that these provisions are *not* in the bill that actually passed on Saturday (S.3021 -- see section 202). An earlier draft contained the more limited language that expressly allowed fast-forwarding, skipping, or blanking out, but only for content that wasn't an ad. However, that draft language faced some stiff opposition. A different, and perhaps even more significant question, is whether this provision is necessary at all. Fair use ought to provide this same type of exception for skipping/blanking of certain content, but whether and to what extent it does is the subject of litigation between the makers of the smut-skipping ClearPlay technology, and a bunch of Hollywood film makers who are suing ClearPlay. (Putting civil and/or libertarians in the awkward position of supporting the party that wants to give people the "freedom" not not view content they find objectionable, and opposing the party -- film makers -- that traditionally ight be their ally on liberties issues.)
Posted by: pilgrim | Nov 23, 2004 8:26:19 AM
Implementing this technologically and legally would be trivial.
- You send a "Do Not Fast-Forward" flag on broadcast commercials.
- You make it illegal to sell equipment that doesn't respect the flag.
And someone in Europe will write a piece of code to disable the flag, someone in Canada will test it out against the various PVRs on the Market, and sell it with instructions over the Net. The underground economy will grow, more people will violate the law and we will be back where we started.
The Recording and Movie industry should start dealing with the fact that the technologiocal environment has changed and start to adapt to it.
The Music industry will have to realize that the only way left for them to make money is concerts, anf the TV industry should realise that they will have to go to a TV Show subscription model.
Posted by: Don Quijote | Nov 23, 2004 8:58:06 AM
And someone in Europe will write a piece of code to disable the flag, someone in Canada will test it out against the various PVRs on the Market, and sell it with instructions over the Net. The underground economy will grow, more people will violate the law and we will be back where we started.
Yeah, and that sucks. I want to live in a country where I'm free to watch movies on my own equipment the way I want in my own home.
Posted by: digamma | Nov 23, 2004 9:17:03 AM
Could this be payback for the velvet glove treatment the media gave Bush?
no, it's much simpler: this is the Republican lobby machine trying to earn the loyalty of Hollywood.
Posted by: cleek | Nov 23, 2004 9:24:19 AM
And someone in Europe will write a piece of code to disable the flag, someone in Canada will test it out against the various PVRs on the Market, and sell it with instructions over the Net. The underground economy will grow, more people will violate the law and we will be back where we started.
That'd be nice, but there are no guarantees that it's possible. TiVo is very hackable, but as the company moves away from serving customers and more toward serving industry the platform will get locked down. The best-case scenario is a situation like Microsoft's XBox -- but let's face it: most consumers are not going to want to get out their soldering iron when they make a new electronics purchase. Nor should they have to.
The real threat is that legislation will mandate all electronics to use a trusted computing platform like that being developed by the TCPA. Most folks don't realize just how open and modifiable the PC platform is right now. That could change quickly, restricting consumer choice and driving tech prices up.
The fast forwarding issue is a good place to fight this battle. "Congress wants to force Americans to watch commercials." That's how this can be framed. There isn't going to be a better chance to ensure that platforms stay open until things get much, much worse.
Posted by: tom | Nov 23, 2004 9:26:49 AM
> different, and perhaps even more significant
> question, is whether this provision is
> necessary at all. Fair use ought to provide
> this same type of exception for
> skipping/blanking of certain content,
I think it is fairly clear that Fair Use will be outlawed soon. I expect it to happen within the next two years, probably in the same bill that outlaws the General Public License and mandates Digital Restrictions Management (DRM) technology in all home computers (prong 2 of the attack on Linux, since DRM requires patent licenses which Free Software(tm) cannot obtain).
Cranky
Posted by: Cranky Observer | Nov 23, 2004 9:42:08 AM
> And someone in Europe will write a piece of
> code to disable the flag, someone in Canada
> will test it out against the various PVRs on
> the Market, and sell it with instructions
> over the Net.
Thus "freeing" about 0.25% of the population. And of those, a few hundred will be jailed and/or sued for $millions, as an example to the rest.
Cranky
Posted by: Cranky Observer | Nov 23, 2004 9:44:17 AM
Sorry sir, it is illegal to leave your seat for popcorn or anything else during previews of coming attractions. You may only do that during play of the movie itself. Please return to your seat NOW, sir. Face forward and eyes open, please.
Thank you and enjoy the movie.
Posted by: wfeather | Nov 23, 2004 10:24:11 AM
I think it is fairly clear that Fair Use will be outlawed soon. I expect it to happen within the next two years, probably in the same bill that outlaws the General Public License and mandates Digital Restrictions Management (DRM) technology in all home computers (prong 2 of the attack on Linux, since DRM requires patent licenses which Free Software(tm) cannot obtain).
Won't happen!!! Most of the hardware is designed & manufactured outside the US, and if Linux is rendered illegal, the OSS industry will move to some other country (Indis, Brazil, China)!
Globalization is double edge sword.
Posted by: Don Quijote | Nov 23, 2004 10:59:43 AM
So what if, instead of fast-forwarding through the commercials, I use the three minutes to take a piss (as many of Americans have been doing for years)- will toilets of the future come with a "DO NOT FLUSH DURING COMMERICIALS" flag?
The 2004 Election has given this liberal a healthy new perspective on the virtues of the Second Amendment. They can come for my remote control when they pry it from my cold, dead fingers...
Posted by: oodja | Nov 23, 2004 11:27:44 AM
Does this remind anyone else of Max Headroom, or am I the only person over 30 here? That was a particularly fun futuristic dystopia, but at the time it seemed silly and unlikely. Boy...
Posted by: Charisse | Nov 23, 2004 11:56:10 AM
Won't happen!!! Most of the hardware is designed & manufactured outside the US, and if Linux is rendered illegal, the OSS industry will move to some other country (Indis, Brazil, China)!
So importation of "insecure" (non-DRM) equipment becomes illegal. Doesn't matter where the OSS is written if you can't run unsigned code on your computer.
I agree that it won't be easy for congress to completely shut down fair use, but we shouldn't just assume everything will work out ok on its own.
Posted by: tom | Nov 23, 2004 12:03:54 PM
Won't happen!!! Most of the hardware is designed & manufactured outside the US, and if Linux is rendered illegal, the OSS industry will move to some other country (Indis, Brazil, China)!For a very small fraction of the population, perhaps. You neglected to mention the dollar volume of sales to the US (and euro volume to the EU). The big exporters know where their bread is buttered and really don't care about things such as "rights" or "freedom". When the laws/regulations come down, they will obey.It is very hard to make a computer without CPUs and video chips. Very hard to make those chips without lots of money. Very hard to get lots of money without the gov't sticking its hand in. You see where this goes...Cranky
Posted by: Cranky Observer | Nov 23, 2004 12:08:47 PM
I posted this above, but I'll mention it here too. The House bill would NOT have "banned" commerical-skipping.
I looked at the actual bills to determine what's going on here (the Wired article Matthew links to above links the House bill (HR2391), and the new Senate bill (S3021)). And here's what I found out: the hysteria about making fast forward illegal is just that, hysteria. It has no basis in reality.
The provision we are talking about is an EXEMPTION from the copyright law. Absolutely no new infringing activities would have been added to the copyright law.
If removing commercials is not an infringing activity now, neither of these bills would have made it into an infringing activity. (Conversely, if removing commercials IS an infringing activity now, then PERHAPS the Senate bill exempts it, since the language it written quite broadly.)
The House bill would have been a wash for commercial-skippers. The Senate bill may actually affirmatively protect them, depending on whether commercial skipping is currently an infringing activity, and whther the broad language in the Senate bill would be construed to protect commercial-skippers.
Posted by: Al | Nov 23, 2004 12:59:35 PM
All this is going to do is spike usage of MythTV.
Posted by: fling93 | Nov 23, 2004 4:37:22 PM
