TV networks sue maker of digital video recorder - AVS Forum
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post #1 of 55 Old 11-02-2001, 09:45 AM - Thread Starter
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From CNN.com:

TV networks sue maker of digital video recorder

This device is not HD capable, but any challenge to digital copying technology will ultimately affect HDTV recording, especialy in the current copyright protection climate.
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post #2 of 55 Old 11-02-2001, 10:05 AM
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Well, they're gonna loose!!!
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post #3 of 55 Old 11-02-2001, 11:48 AM
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Quote:
Originally posted by Bertil
Well, they're gonna loose!!!
I don't necessarily agree with you. The 1984 Sony Corp vs. Universal Pictures decision gave people the right to explicitly record television freely transmitted over the airwaves for timeshifting purposes; i.e., for personal use. The ReplayTV 4000 includes features for trading digital recording of anything you can record with it (including cable broadcasts that you had to pay for) over the Internet with friends who have the same device. This is what's being challenged and is clearly not covered by the earlier SC decision, and is also unlikely to be looked favorably upon by the courts.

A few years back, a company which set up business to record television and play it back for their clients over the net was shut down by the courts. This seems closely related.

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post #4 of 55 Old 11-02-2001, 12:03 PM
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I think the networks have a good case. I read the issue here being the internet capabilities. That smells of Napaster. I don't think the networks really care about PVR's, in fact they are safer than tape in that they are a dead end. They can't output a digital copy, except for this one.

As for the commercial stripper, I'll venture to bet it's not very reliable. There is only so much the internal CPU can assume. Fade to black sometimes happens within programs. Breaks in captioning happen during programs too. The only reliable units were those old ones that worked only on B&W programs. That's because it was an FCC violation to transmit color burst (a hidden signal that turns on the color processing in a TV as well as syncs it). That FCC rule is now also relaxed.

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post #5 of 55 Old 11-02-2001, 12:13 PM
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Thought of something else, a favorable ruling to the Networks could effect the computer hobbiest PVR's that now are sold. Cards such as the WinTV PVR, HiPix, AccessTV, and probably a few others. These cards can easily send files over the internet although they are not sold with that purpose in mind. The files generated are a standard Windows, in fact DOS readable, file format.

Most of those card either are or have HDTV versions available now. It's a joke these days to try and send an HD show over the net because they run at 8GB per hour. But that will change in the future with better compression and faster home connections.

I think the only reason these cards have not been challanged is that they are buggy, require a fairly powerfull PC, and are not user friendly. People that have them are hobbiests. But if a legal precident is made that no open file PVR device can be sold, that would end the sale of those devices.

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post #6 of 55 Old 11-02-2001, 02:01 PM
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The networks probably could have gone after HiPix, etc, if they gave a damn. But as you say, there are only a few of them right now, and the transmission of HDTV recordings over home network connections would be difficult--upload speeds are generally kept low even on broadband connections and some ISPs actually limit daily uploads to less than an hour's worth of 1080i. Shutting Telemann and similar HDTV capture-card manufacturers down is probably not worth the court costs, and probably won't be for some time to come.

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post #7 of 55 Old 11-03-2001, 05:36 AM
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There are 2 items that you all may want to consider prior to forming opinions as to who may win or lose this court case:

1) The Replay saves and outputs any copy protection information included in the broadcast.

2) The Replay software will only allow 14 copies to be made from any single source recording.

Obviously, Replay has made at least some effort to balance copyright protection and fair use.

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post #8 of 55 Old 11-03-2001, 09:47 AM
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The AccessTV card also has some built in protection. It will only play files it made therefore restricting them to the machine where the card is. I'll bet this is easily hacked however if anyone even cares.

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post #9 of 55 Old 11-03-2001, 10:17 AM
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Quote:
Originally posted by SmokeBringer
There are 2 items that you all may want to consider prior to forming opinions as to who may win or lose this court case:
Thanks for the information, but I still think they're gonna lose. They don't get to unilaterally decide that, if they place a certain set of restrictions that seem reasonable to them on it, trading digital copies of television programs on the net is fair. Do they, for instance, encrypt the copies in any way? What provisions have they made that will prevent someone from making a computer program to spoof one of their recorders, capture those copies and render them into ordinary PC MPEG files and then do whatever they want with them?

The current trend of the courts is against this sort of thing. This is, in effect, "Napsterization" of television.
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1) The Replay saves and outputs any copy protection information included in the broadcast.
So does it pay any attention to it? If, say, a program is transmitted with "Copy One Generation" protection on it, will it record "Copy No More" (the proper procedure) and not do this copy-over-the-net thing with it? If so, maybe there's no problem. The complainants can just transmit all of their programming that way and nullify this feature.
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2) The Replay software will only allow 14 copies to be made from any single source recording.
Interesting number--I wonder how they arrived at it?
Quote:
Obviously, Replay has made at least some effort to balance copyright protection and fair use.
Copying television over the internet (or giving copies of copyright protected material that you've made of anything to anyone else) has nothing to do with "fair use". The courts have decided that it's "fair use" to make recordings of free, over-the-air television (or cable/DBS rebroadcasts thereof), for purposes of timeshifting it. They've declared that it's "fair use" to transfer audio recordings that you own into other formats for private use by you on other audio devices that you own. As far as I can tell by reading Title 17, it's not actually legal to lend a copy of something that you bought to someone else (particularly a computer program or sound recording--see section 109 (b)(1)(A)). You can't hope to stop people manually lending things to each other, but seeking an injunction against the sale of a device created with an express secondary purpose of trading copyrighted material through the internet is wholely appropriate, IMHO.

And they don't even have to stop them from selling it. As we say in the software engineering biz, it's a SMOP (Simple Matter Of Programming)--they can keep the broadband adapter for the "program from anywhere' and "connect multiple recorders in your home" features, and excise the internet trading software.

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post #10 of 55 Old 11-03-2001, 10:48 AM
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As far as I can tell by reading Title 17, it's not actually legal to lend a copy of something that you bought to someone else (particularly a computer program or sound recording--see section 109 (b)(1)(A)).
Not so sure. See theReport to Congress Pursuant to Section 104 of the Digital
Millennium Copyright Act


Quote:
Section 109 of the Copyright Act, 17 U.S.C. 109, permits the owner
of a particular copy or phonorecord lawfully made under title 17 to
sell or otherwise dispose of possession of that copy or phonorecord
without the authority of the copyright owner, notwithstanding the
copyright owner's exclusive right of distribution under 17 U.S.C.
106(3). Commonly referred to as the ``first sale doctrine,'' this
provision permits such activities as the sale of used books. The first
sale doctrine is subject to limitations that permit a copyright owner
to prevent the unauthorized commercial rental of computer programs and
sound recordings.
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post #11 of 55 Old 11-03-2001, 12:37 PM
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Huh? I saw that. That's selling, not lending, leasing or renting. For any of those things, you ostensibly need the permission of the copyright holder, in particular for computer programs and sound recordings, probably since the person to whom you lent it to is likely to make a copy of it for his or her continued use.

U.S. Code Title 17, section 106 reads:
Quote:
§ 106..Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under his title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to he public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
I suspect that item (6) is a very recent addition, which they may need to modify to read "in the case of sound recordings or recordings of television..." :).

I withdraw the statement, anyway--it may be legal for you to lend a physical copy of some copyrighted work that you own to someone (though not for him to copy it or for you to give him a copy of it to keep while you keep the original, I don't think). The section of Title 17 I was looking at was explicitly about lending for "direct or indirect commercial gain".

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post #12 of 55 Old 11-03-2001, 01:23 PM
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Quote:
Originally posted by michaeltscott
So does it pay any attention to it? If, say, a program is transmitted with "Copy One Generation" protection on it, will it record "Copy No More" (the proper procedure) and not do this copy-over-the-net thing with it? If so, maybe there's no problem. The complainants can just transmit all of their programming that way and nullify this feature.
I don't know, since I did not write the software and it has yet to be finalized. However, I would think that Replay (Sonic) has spent a fair amount of time thinking about current (and future) copyright law, and that they have taken the necessary steps to enable them to prevail in a legal proceeding.

I think the networks may have jumped the gun on the legal side. They have filed suit, yet the software has yet to be made final. This "premature" filing is an obvious attempt to get an injunction against shipment, but given that the product is not in it's final form, proving "irreparable harm" will be difficult.

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post #13 of 55 Old 11-03-2001, 11:08 PM
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This is just another example of how the old copyright laws don't work anymore. Content providers will change their distribution methods or they will perish. Back when copyright laws were created, it was expensive and troublesome to copy something, and the copy didn't come out as good as the original. Now that practically anything can be digitized (movies, music, books, etc.) and copying digital information has become so easy and cheap, all the middle men are in trouble. The actual content creators, mind you, are not. When you buy a CD, how much of the $15 actually goes to the artist? $3? $1? 50 cents? I'd much rather pay $3 to the artist and download the song, than to buy it from Tower Records for $15. That's what's scaring the middle men, technology has finally cut them out of the loop. So they scream and shout about how their rights are being violated.

BTW, I'm personally against pirating any intellectual property. I've purchased every singe game I play. I even once got a copy of Close Combat 2 from a friend at Microsoft, and after trying it and liking it I went out and bought a legitimate copy. I'm saying this just to let everyone know I don't think people should be using something someone worked hard to create without paying them for it. That's just common sense.

But what all the hoopla is about is not whether or not the actual creators are getting screwed, it's that the entire industry that has grown on top of them is so afraid that someday soon they will be obsolete, thanks to technology. Just like Polaroid.

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post #14 of 55 Old 11-03-2001, 11:12 PM
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Quote:
Originally posted by SmokeBringer
I don't know, since I did not write the software and it has yet to be finalized. However, I would think that Replay (Sonic) has spent a fair amount of time thinking about current (and future) copyright law, and that they have taken the necessary steps to enable them to prevail in a legal proceeding.
You think that, do you? Well, Sonic Blue is a miniscule company in comparison to the combined forces arrayed against them (or even one of the individual complainants). I wouldn't be surprised if the networks haven't had their considerable legal departments preparing for just this sort of thing. We'll see, but, I really think that they'll won't have much trouble getting an injunction against shipment of these things with that internet sharing feature intact.

As I pointed out before, with this, you can record something from a subscription channel that your friends and/or family members do not subscribe to, or a pay-per-view program, and just ship it to them over the net, and it'll look just as good as when you saw it, if you watched it through your ReplayTV. To my mind, this is just plain wrong, and if that's not intuitively clear to you, there's no point in our arguing about it. I predict that this would become the most common use of the the feature and if I were those networks, I'd get HBO, Showtime, DIRECTV and Echostar to join in the suit.
Quote:
I think the networks may have jumped the gun on the legal side. They have filed suit, yet the software has yet to be made final. This "premature" filing is an obvious attempt to get an injunction against shipment, but given that the product is not in it's final form, proving "irreparable harm" will be difficult.
The software's not final? Sonic Blue is advertising this feature on their web site. I think that they'll have a hard time arguing any harm to their business caused by taking this questionable online trading feature out, since nobody has it now and PVRs are selling anyway. The broadband connector still has lots of use: the "Room to Room Sharing" and "iChannels" (which sounds a lot like NVOD, delivered over the net) features could still be quite useful.

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post #15 of 55 Old 11-04-2001, 09:23 AM
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...I have the ability to record D-VHS and I'm not an engineer or industry guru. This is still a free country and if I want to record a HD program for later replay in my house for personal reasons I should have that right. It is no different than repeating the words someone speaks in my opinion. And, if I want to show that tape or speak those words to a friend that is ok as well.

The difference is simply money. Recordings should not be allowed to be used for profit in any venue. Besides, to show a HD recording you must have the HD recorder-which based on price-will rule out 95% of the general public.
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post #16 of 55 Old 11-04-2001, 10:29 AM
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Quote:
Originally posted by RobertM
...I have the ability to record D-VHS and I'm not an engineer or industry guru. This is still a free country and if I want to record a HD program for later replay in my house for personal reasons I should have that right. It is no different than repeating the words someone speaks in my opinion. And, if I want to show that tape or speak those words to a friend that is ok as well.
Yes--all of that is perfectly OK and is covered by the courts' broad interpretation of Title 17's "Fair Use" clause. However, making a copy of that program for your friend, is not. You may make a recording of free, over the air broadcasts (there has been no ruling on the legality of recording pay television, but you cannot--yet--allow one while prohibiting the other) and have as many friends as you like view it as many times as you like, as long as you don't charge them anything, at any private location. You cannot, however, legally make copies of that tape and hand them out, even without charge. That's more analogous to taking a book that you borrowed from the library, copying it word for word and handing out paper (or worse, electronic) copies of it to whomever you please, than it is to "repeating the words someone speaks".
Quote:
The difference is simply money. Recordings should not be allowed to be used for profit in any venue. Besides, to show a HD recording you must have the HD recorder-which based on price-will rule out 95% of the general public.
The ReplayTV 4000 is not an HD recorder--we're just discussing its record-and-share-through-the-internet feature on general principles. It's quite relevant to HD--this is why the major studios are demanding copy protection: they don't want people freely trading around digital copies of their stuff, for fun or profit. In this case, since ReplayTV at best is making a copy of an S-video connection from a digital cable or DBS STB, the maximum quality of the recording is limited, though it'd still be more than acceptable to most people (I tried ReplayTV once, when my out-of-warrantee Tivo bit the dust, and found the maximum quality setting of its MPEG encoder to be terrible--ran back to the store to exchange it for a new Tivo--but they may have improved that since). If you could hack it out of the ReplayTV as an MPEG file, or spoof it into sending it to a program on a PC pretending to be another ReplayTV, you could do whatever you wanted with it--no further degradataion of the image would occur when copying it.

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post #17 of 55 Old 11-04-2001, 01:40 PM
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Quote:
Originally posted by michaeltscott
Well, Sonic Blue is a miniscule company in comparison to the combined forces arrayed against them (or even one of the individual complainants).
True, but irrelevant to the question of how carefully (or not) the legal issues have been considered. You make it sound like Sonic is run by a bunch of morons who blindly release a product that clearly violates copyright law. I simply can't believe that they would "put the gun to their heads and fire the trigger" without thinking about it a bit.

In any case there is no way to know one way or the other. We'll all just need to wait and see what happens.

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post #18 of 55 Old 11-04-2001, 01:53 PM
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Quote:
Originally posted by michaeltscott
The software's not final? Sonic Blue is advertising this feature on their web site. I think that they'll have a hard time arguing any harm to their business caused by taking this questionable online trading feature out, since nobody has it now and PVRs are selling anyway.
I develop software for a living and I can tell you that it is most likely not final at this stage, particularly any controversial features. I would bet that they have several options that can be selected in the software to turn-on/turn-off selected features.

The specific claim from their website that I assume you are referring to is Video sharing over the Internet. Well, all I can say is that the devil is in the details. The software may only allow material not marked for copy protection and/or may allow limited distribution.

I'm no legal expert but it would seem to me that the defendants (Sonic) do not carry any burden of proof regarding the exclusion of a feature due to market competition. Rather, it will be up to the prosecution (networks) to prove irreparable harm will be done if the product is released as advertised.

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post #19 of 55 Old 11-04-2001, 08:59 PM
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Quote:
Originally posted by SmokeBringer
I develop software for a living and I can tell you that it is most likely not final at this stage, particularly any controversial features. I would bet that they have several options that can be selected in the software to turn-on/turn-off selected features.
I develop software for a living, too, and have for the past twenty-five years. First writing custom research lab automation apps for the biochem department in the university I attended, then custom and turn-key lab and industrial automation apps for a consulting firm, then six years at Digital Equipment Corporation working on disk drive and storage subsystem adapter firmware and OS networking enhancements (in eastern Mass and greater Seattle), followed by work on the networking subsystems embedded in Xerox's current multi-function office devices, then several years of writing distributed network management agents embedded in large-scale networking devices for various companies and now work on user-interface firmware in cellular phone handsets (which is a lot of fun--the first time I've done embedded programming where I can bring prototypes of the product home in my briefcase).

In the work I do currently, the codebase is highly conditionalized to allow turning on and off various features at the behest of the customers who sell our products as accessories to their calling plans. We call the set of macros used for this "feature-guards". I'm sure that Sonic Blue can fairly easily remove the Internet Sharing feature from this product. Heck, they and Tivo download major revisions into their systems overnight through phone modems now. But as I said before, the feature is described in detail on their website, where you can order the product for delivery in time for Christmas. The website doesn't say "we're considering including this set of capabilities"--it says "it will do the following things." Certainly some people are ordering it wholely or in part because of it having this particular feature. This makes removing it not something that they can do without consequence. However, I think that they may have to, anyway--your opinion may differ. In any case, it's not as if they couldn't ship with it turned off and turn it on later, remotely, if they won the court battle, a point in favor of granting the injunction.
Quote:
The specific claim from their website that I assume you are referring to is Video sharing over the Internet.
The only other thing the networks are complaining about is the commercial stripping feature. RCA and Panasonic, I believe, are selling VCRs that can mark a tape recording such that commercials are automatically skipped on playback (though there will be pauses while fast-forwarding), so they might have a hard time arguing against this feature, though I can see their point. Commercial OTA programming is provided to us on the condition that we watch the advertisements; we can skip through them in timeshifted stuff with the fast-forward button, but we have to see the images to know when to stop fast-forwarding, which is often enough to catch our attention.
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Well, all I can say is that the devil is in the details. The software may only allow material not marked for copy protection and/or may allow limited distribution.
True enough. There's not enough information in that CNN article to determine what it does with copy-protection information. But if it detects CGMS-A and complies with it, the broadcasters could mark all of their broadcasts with "Copy One Generation", which the PVR should record as "Copy No More" and refuse to send copies of it over the net to others. But who's going to pay for the cost of adding this copy protection signal to broadcasts?

It does look as though previous ReplayTVs did pay attention to CGMS-A and Macrovision. I found this in the online manual for Panasonics PV-HS3000 "Showstopper":
Quote:
When Macrovision or CGMS-A (Copy Generation Management System-Analog) copy protected signals are available for TV broadcasting, the show is NOT viewable in LIVE TV mode, nor can it be recorded. To view copy protected material, split the RF signal. The following illustration shows how to split the signal.
But copying is not what bothers the broadcasters--distributing digital copies is. They probably haven't had any reason to use CGMS-A until now. Again, who's going to pay for them adding it?
Quote:
I'm no legal expert but it would seem to me that the defendants (Sonic) do not carry any burden of proof regarding the exclusion of a feature due to market competition. Rather, it will be up to the prosecution (networks) to prove irreparable harm will be done if the product is released as advertised.
I'm not a legal expert either, but I don't think that the complainants have to prove any "irreparable harm" to their businesses, if they can prove that the primary purpose of the feature is to break existing copyright laws against distributing copies of copyrighted material without the permission of the copyright holder.

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post #20 of 55 Old 11-04-2001, 09:15 PM
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Quote:
Originally posted by SmokeBringer
True, but irrelevant to the question of how carefully (or not) the legal issues have been considered. You make it sound like Sonic is run by a bunch of morons who blindly release a product that clearly violates copyright law. I simply can't believe that they would "put the gun to their heads and fire the trigger" without thinking about it a bit.

In any case there is no way to know one way or the other. We'll all just need to wait and see what happens.
I don't think that they're morons, but I do think that the combined legal departments at CBS, NBC and ABC have far more experience with copyright law than whoever they have working for them. If they didn't think that they had good legal standing to shut them down, I don't think they'd be taking them to court. We'll see who's right.

I think that it's quite possible that Sonic Blue is well aware that they're on shakey legal ground with this thing. It's a minor gamble that they're taking--one interesting feature in their box among many, that they may have to withdraw, which is easy enough to do. They may consider it worth a roll of the dice. Since it hasn't even shipped yet, they aren't facing any possible punitive charges--just potential withdrawn orders or returned units.

But they're doing a couple of other interesting things with that broadband adapter and I can think of few more services that they could offer using it without breaking any laws, so they risk only the cost of adding the sharing feature (a couple of man-months, at most, if you subtract the cost of engineering in the broadband adapter and support firmware, which is used by other features) and some court costs.

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post #21 of 55 Old 11-04-2001, 09:57 PM
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Originally posted by Glimmie

As for the commercial stripper, I'll venture to bet it's not very reliable. There is only so much the internal CPU can assume. Fade to black sometimes happens within programs. Breaks in captioning happen during programs too.
Forum First: self flame!

The above is jumping too fast to conclusion. I just figured out how they are cutting commercials and actually it's very easy and will be very reliable. One hint... at least it is for now.

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post #22 of 55 Old 11-05-2001, 05:05 AM
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In the fifteenth century Portugese navigators introduced a lower cost of distribution forcing the Silkroad traders to literally fold up their tents.

Copyright lawyers are in the unenviable position of defending the latest Silkroad.
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post #23 of 55 Old 11-05-2001, 08:14 AM
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Again, who's going to pay for them adding it?
Who pays for the bars I put over my windows? Who pays to install and maintain my firewall? If you want security you have to pay for it.

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post #24 of 55 Old 11-05-2001, 08:47 AM - Thread Starter
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There's a new article in today's New York Times (free registration required):

Networks See Threat in New Video Recorder
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post #25 of 55 Old 11-05-2001, 12:03 PM
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Originally posted by firefighter

Who pays for the bars I put over my windows? Who pays to install and maintain my firewall? If you want security you have to pay for it.
And you only install those things because there is crime. No significant amount of this particular crime (copyright infringement by the unauthorized trading of digital recordings of television programming) will occur without the widespread and open sale of the Internet Sharing feature of this tool and future products like it. There are laws that block the sale of things whose sole purpose is to aid in the commission of crimes; to the extent that they are successful, you are safer and have to spend less time and resources protecting yourself.

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post #26 of 55 Old 11-05-2001, 12:20 PM
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It's interesting to note that, since they changed their name, Sonic Blue has taken a decided turn towards slimey-ness. When they were Diamond Multimedia, they sold quality graphics, audio and network adapters for PCs. Now they specialize in things with significant application to affronting copyright holders--MPEG players, GoVideo dubbing decks and these new ReplayTV features. :)

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post #27 of 55 Old 11-05-2001, 01:27 PM
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Originally posted by michaeltscott
It's interesting to note that, since they changed their name, Sonic Blue has taken a decided turn towards slimey-ness. When they were Diamond Multimedia, they sold quality graphics, audio and network adapters for PCs. Now they specialize in things with significant application to affronting copyright holders--MPEG players, GoVideo dubbing decks and these new ReplayTV features. :)
Okay--I rescind some of this statement--I visited Sensory Science's site and all of their current dubbing decks respect Macrovision (and the DMCA) and will not dub tapes and DVDs with copy-protection on them. No one can ask for more (certainly the prerecorded tape and DVD publishers aren't asking for any more).

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post #28 of 55 Old 11-05-2001, 02:07 PM
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I don't have the link but I just read on the OpenDTV list that the CEA is taking a position against this suit.

Also I think Microsoft, IBM, and some others are deciding to fight the proposed SSSCA. Maybe the manufacturers are finally getting tired of taking the flak for the IP lawyers. Then again maybe it's just a bargaining ploy.

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post #29 of 55 Old 11-05-2001, 07:50 PM
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First, sonic blue is experienced with defending this type of lawsuit. The RIAA tried to take out the Rio and got spanked. Sonic Blue knows more about riding the edge of copyright than just about any other company. And has taken on the "big guy" before.

That being said, this thread talks a lot about the file transfer system, but it's described with almost Napster like qualities. Let's contrast this a little to how the transfer actually works. First, there is no search function, there is no DB, you can't even pull this programs from the replay. The person who has the timeshifted material must specifically send it too you. I don't think there is anything to debate here.

In this country the copyright is defined by a mish mash of laws and case law. It's a mess. In general terms, however, what we seem to have is this concept that individuals are indemnified from copyright liability so long as they aren't selling or distributing en mass. I don't think there is much to debate on this either.

So let's take recording a program. It's timeshifting, it's okay. What about loaning your program to a friend. A little more grey, but it doesn't matter, one tape isn't considered distribution, you're indemnified. So, the question comes down to will the replay transfer be considered functionally similar to practices accepted today in the VCR world, or will it be considered a new form of distribution?

This is the meat of the argument. I think Sonic Blue has an Ace up it's sleeve. The big clue to me is the number of times you can copy the show. 14 times. 14... interesting number... It's not a number marketing would come up with. Marketing likes nice round marketing numbers. 5, 10,15 or 20... Not 14... Most likely SB dug up case law that defines distribution and they are under the limit.

So, while replay may not be home free, I wouldn't go so far as to count them out.. It doesn't seem nearly as clear cut.

  

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post #30 of 55 Old 11-06-2001, 12:06 PM
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First, sonic blue is experienced with defending this type of lawsuit. The RIAA tried to take out the Rio and got spanked. Sonic Blue knows more about riding the edge of copyright than just about any other company. And has taken on the "big guy" before.
True, they certainly do seem to have made a habit out of buying companies on that fringe. But the RIAA's suit was tissue-thin--the Rio and other MP3 players are virtually indistinguishable in function from a cassette tape walkman. There has been no function built into them with no purpose other than breaking the law.
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That being said, this thread talks a lot about the file transfer system, but it's described with almost Napster like qualities. Let's contrast this a little to how the transfer actually works. First, there is no search function, there is no DB, you can't even pull this programs from the replay. The person who has the timeshifted material must specifically send it too you. I don't think there is anything to debate here.
No, it is not identical to Napster, but it does enable widespread public trading of copyrighted material, as Napster did. If Replay were ever so successful with this as they want to be (and they've sold their system to Motorola for inclusion into cable set-tops), potentially more copies of television programs could be traded around every day than Napster ever did business in music tracks.
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In this country the copyright is defined by a mish mash of laws and case law. It's a mess. In general terms, however, what we seem to have is this concept that individuals are indemnified from copyright liability so long as they aren't selling or distributing en mass. I don't think there is much to debate on this either.
I'm sorry, but I think that there is. If you're dubbing all of the tapes or discs that you rent from Blockbuster and passing the copies around to all of your friends and relations, I'm pretty sure that you're breaking the law. It's just impossible to enforce this law. It is possible, however, to keep people from selling things that would enable it on a wholesale scale, like this ReplayTV feature--you can use it to copy recent theatrical releases from HBO or Showtime or PPV or whatever and pass them to your friends who didn't pay to see them. The only way that pay television can stop this is by adding Macrovision Colorstripe to their signal, which can screw up the signal for non-copyright-infringing uses (often causing distortions if run through anything, even a switching receiver, before entering the television) or CGMS-A, which may well be benign. But why should they have to do anything?

As I asserted before, commercial broadcast television is provided to you so that you will watch the advertisements, or at least scan them as you FF past them on a recording. The advertising time on those programs is sold to national and local businesses, but even the national businesses tailor them to the local market. They don't particularly want your Aunt Martha in Milwaulkee watching ads for their products that aren't sold there and the people who paid for the ads during the program in Milwaulkee are a bit put out if anyone in their area get to watch that program without being exposed to their ads. This is the "Superstation" problem, and why the FCC requires you to get a waiver from your local CBS affiliate to receive HD CBS on DISH. This feature creates exactly the same problem. You might hand a tape of a program that you caught off to one or more buddies at work, but you're not nearly so likely to put one in the mail to Auntie M.
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So let's take recording a program. It's timeshifting, it's okay. What about loaning your program to a friend. A little more grey, but it doesn't matter, one tape isn't considered distribution, you're indemnified.
Loaning your timeshifted tape to your friend is one thing, making a copy of it for him, another--that is distribution. The law explicitly allows you to display anything you have a right to copy in any private place, including your friend's house, and show it to anyone else without charge, including your friend. So giving him your copy to watch in private; fine: making a copy of it for him and up to 14 other people; probably not so fine.
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So, the question comes down to will the replay transfer be considered functionally similar to practices accepted today in the VCR world, or will it be considered a new form of distribution?
It is substantially new. Making a copy of something and passing that single copy around to a bunch of people over a period of several days is what we can easily do now. Making up to 15 copies of identical quality and passing them out to 15 separate people who could be located nearly anywhere in the (NTSC using) world overnight is what this allows you to do.
Quote:
This is the meat of the argument. I think Sonic Blue has an Ace up it's sleeve. The big clue to me is the number of times you can copy the show. 14 times. 14... interesting number... It's not a number marketing would come up with. Marketing likes nice round marketing numbers. 5, 10,15 or 20... Not 14... Most likely SB dug up case law that defines distribution and they are under the limit.
Actually, if you read the article, you'll find that the number is 15, which I think they probably pulled out of their collective butt; Smokebringer just misquoted it.
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So, while replay may not be home free, I wouldn't go so far as to count them out.. It doesn't seem nearly as clear cut.
I'm not counting them out--anything's possible in America's often boneheaded system of justice (which, don't get me wrong, I do hold dear). But the winds of change are--and properly I think--blowing against them at this time. What they've implemented here isn't exactly Napster, but I'd argue that the collateral effect would be pretty much the same.

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