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Sonicblue Wins Stay of Spying Order
ebonkyre writes "According to this article, federal Judge Florence-Marie Cooper has stayed the order which would require SONICBlue to begin recording users viewing habits and reporting them to the MPAA, et al. It has been stayed until June 3rd, at which time the court is to review SB's motion to throw out the order entirely." EPIC has filed a brief supporting Sonicblue's position. EPIC's argument (starting on page 5 of the PDF) neatly summarizes why this order should never have been given.
ok, I'm trying to find out why a court WOULD order that a company like SONICBlue to record viewing habits for distribution to other media companies..does anyone know the court's reasoning behind this?
Those who can, do. Those who can't, go into business for themselves.
Well, I guess the first judge ignored the fact that there were actual people involved here who had a reasonable expectation of privacy. Instead she figured that these "records" were just ordinary discovery. Glad to see that another judge at least wants to think about it for a while.
Don't moderate flamebait as Troll. Know the difference or you will be Meta-moderated.
You may think this is a no-brainer, but if the viable source of income for TV producers is to "promise" a certain number of eyes watch your commercials, thats how they are priced. Otherwise, you'd be paying-per-channel of cable TV, which again is possibly a good idea...
With the corporations soon to be expecting a discount based on the market share/demogrpahic of owners of SB or Tivo-like devices, we'll see the budgets of TV constrained from their traditional sources. Of course, other sources will be built (look out for a tax bill).
So, the bottom line is the dollars are expeced out of the consumer's pockets somehow. If the ad rates drop and TV quality follow suit, will we watch less TV? I doubt it, although I hope so. If a tax-proposal fails for devices that manipulated recorded video, then perhaps we'll see everything sold through cable at higher rates. So, the cable bill goes up.
This will undoubtedly push the distribution faster into free methods: PTP video. But then again, this may positively impact broadband sales. Perhaps cable companies again here will reap the rewards (Telecomm cannot compete since there is too much infighting about open markets and DSL just cannot cut it long term).
So the eyes have it. Shows can be compressed to a cheap size (still huge by today's file sizes) and passed around. When the bandwidth is sold with an odometer-like billing model, we'll be here again, discussing the neighborhood radio networks and other private options.
Oh the drama.
signal
Among features the studios and networks object to are the ability to skip commercials and a broadband connection that allows users to exchange recorded programs with others.
PBS has been airing quality television programs for many years commercial-free by asking viewers to contribute their financial support. This and the ability to hit the mute/channel change button on my remote allow me to watch TV stations commercial-free.So what's next, suing TV manufacturers to force them to start making TV remotes without mute buttons and channel changing capabilities? God forbid I excercise my own free will and look for an alternative.
Further, what's to prevent me from recording a show to VHS, taking it to a friend's house, and then watching it again? This is a method of sharing. It's just not as convenient for me to do so. Add to this the term "digital" or "broadband" and suddenly all the lawyers in the room come alive as programmed and start using acronyms like DMCA.
I think the truth is that companies like Disney realize that someone else beat them to the technology, they realized what an opportunity they missed (to make more money), and they're now trying to catch up by miring the industry in legal battles.
Regardless of what Disney and their ilk think, I decide whether or not they are successful... Unfortunately, I (and most /. readers) am in the minority of people who actually give a rat's ass and vote with their wallet.
Yeah yeah, I know. Flamebait.
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you don't have to outrun the bear, just the slowest person in your group.
I agree that the concept of such commercials seems rediculous, but I also think that public knowledge about the capabilities of new PVRs is really very limited at this point in time... a television commercial pointing out that there are people out there who don't have to watch commercials! One 30 second prime time spot would sell thousands of ReplayTVs! I mean, I only know about PVRs because I'm a geek and the technology behind it, as well as the resulting court case, is interesting to me. People who like to hang out in the home electronics department while their family/spouse/friends shop -- know about PVRs. People who hang out on Slashdot know about PVRs. And people who really like their television, or have really busy schedules, know about them too. And right now, this is the realistic market for such a device -- techies and tv-lovers. If the television industry stepped outside of the courtroom and into the living room with their concerns, suddenly the general public would be much more aware of these products and their capabilities would be that much more appealing.
This is slightly offtopic, but do you ever wonder why the TV industry doesn't launch an ad campaign against the use of PVR's like the ReplayTV 4000?
Why? Because every viewer that hasn't heard about ReplayTV will think "You mean I can get a box that lets me skip commercials? Where do I sign up?"
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That's essentially what SonicBLUE did. If you read through the brief there's a section which details the fact that SonicBLUE decided not to implement data gathering facilities due to cost and consumer reaction concerns.
The fact that they didn't implement those data gathering methodologies is what allows them to stop the discovery proceedings like this. One of the main points of the brief is that Civil discovery rules do not allow surveilence as a means of obtaining prospective evidence. If SonicBLUE already had the data it would be a cinch for the plaintiffs to get their hands on it. That's what discovery is. But since they don't actually have the data they are arguing (correctly, IMHO) that they can not be compelled to gather the data.
Behold the Power of Cheese!
And the majority of that traditional advertising is a simple "this program was made possible by a grant from the XYZ Corporation." It isn't in your face, it doesn't annoy anyone and doesn't turn an hour show into 35-40 minutes worth of crap. It does, however, fund programming and create a brand association. ABC Corp. interrupts my shows with shitty ads. XYZ Corp. funded that Nova episode.
The few things I do watch aren't on PBS, though. I'll buy a PVR when it all gets sorted out and that'll be fun.
I spent a year in Iraq looking for WMD and all I found was this lousy sig.
Just because their business model is for advertisers to pay for production in return for also broadcasting ads is no reason to enshrine that business model forever. If it is no longer viable, then they should find a new business model or go out of business.
Are we supposed to weep for vaudeville tap dancers and plate jugglers because radio and TV ran their business model into the ground?
How about street sweepers -- should we guarantee them a job even though the automobile reduced the amount of horseshit on the roads?
Infuriate left and right
The point I think they are trying to make is that the only reason this seems even slightly reasonable (and the above examples do not) is because it affects so many people that it becomes a statistic, and the way in which those people's privacy is violated is complicated enough that it is easy to gloss over the fact that it is a severe intrusion into the living rooms of SONICBlue's customers!
Of course, SonicBlue's problem being that they explicitly put the clause in the service agreement allowing them to collect such information from the consumer. Which is what TiVo did also. Now, I do not believe it has come up whether this clause in itself would be legal and enforceable; but I do not see why not. Usage info is being tracked from variety devices and software legally.
Listening to an EFF representative on CNet radio, and reading this brief, I wouldn't think this was a great argument to reverse the original ruling. This brief goes way too much into how privacy would be violated and presents not so good analogies. Of course MPAA is going to respond by arguing SonicBlue has perfectly legal right to collect such info (based on the clause in their agreement).
IMHO, what they should have argued more than anything else, is that in the discovery process plaintiffs have no right to demand extra, non-existent information from the defendants or ask them to create such data, and presented more and more rulings backing this argument. But then again, IANAL.
Which is what bugs me about this.
The court shouldn't even be fucking involved in this. It's legal to piss while you watch TV. It's legal to tape a show to an analog VCR and fast-forward through the commercials. There's no law that says that VCR's can only fast-forward at a certain rate - just an engineering problem with spinning a shaft and winding a spool of magnetic tape. A VCR with extremely powerful motors (and really strong tape :-) could do this and nobody would bat an eye.
The difference between the VCR and PVR is that a VCR engineered to do that would cost thousands, and the tape, hundreds. The PVR makers have merely built a better ad-skipping mousetrap, by swapping analog stretchy tape for bits on a disk and a CPU to decode them.
So how the fuck are the Content Cartel able to browbeat judges into thinking that 30-second skip is somehow worthy of a lawsuit? (Yes, I know that's not the thrust of this suit, but with that fucknozzle from AOL/TW calling PVR users "thieves", we know it's coming). Why the hell aren't such suits immediately recognized as SLAPPs (Strategic Lawsuits Against Public Participations) and thrown out?
All the PVR industry needs to do to achieve total world domination(tm) is run one 30-second spot, something like this:
Presto! Instant consumer adoption - it gives the consumer what he wants - the ability to watch a 2-hour broadcast of a movie in 90 minutes. (The ability to watch a whole baseball game in 20 minutes
The consumer wants this, but they can't imagine that it's possible. Your job is to show them that it's not only possible, but it's here, and available for the low, low price of $10/month.
Will you get sued? Probably. But you're getting sued by these bastards anyways. Why not get the public on your side now, before the Content Cartel gets Congress to pass a law banning 30-second-skip or other ad-skipipng features in PVRs? (Or a judge bans your product, which is what the Cartel is trying to have done now?)
The Cartel can get away with it because Joe Sixpack doesn't know he can skip commercials.
I know this is horribly old-fashioned, but lots of people have made assloads of money by simply making the consumer aware of a need they didn't know they had ("I hate the 3-4 minute ad breaks") and that you have a product that meets that need ("You mean I don't have to watch commericals if I buy your box?").
When Joe Sixpack realizes he can skip commercials, it'll be too late. Just like Sony vs. Betamax - once Joe Sixpack found out how valuable time-shifting was, no court, (and just as importanly, no Congresscritters), will dare take it away from him.
Why work with the broadcasters? You guys sell hardware and subscription-based software. I can't see any legal reason why 30-second skip is any more "illegal" than fast-forwarding on a VCR, or channel-surfing during the commercials. FUCK the broadcasters. You don't need them.
The fact of the matter is that the viewing habits that can be tracked and utilized by a PVR that is networked are extremely valuable and useful to a whole host of interested parties. It dwarfs the value of similar data about web users' habits and demographics.
I tend not to be as militant about privacy as most of the rest of you. Even so, I agree that this type of information should be anonymous if it is collected. Perhaps also an explicit opt-in. But even with those requirements, the data collected is still very useful and valuable. That data is worth a great deal of money to the PVR manufacturers. The broadcast industry had every reason to expect that SonicBlue was collecting this information; and, if not, that they will in the future. It's disingenuous of SonicBlue to act as if collecting that information is something that they don't do and would never consider doing. Frankly, that would be a stupid business decision.
In this way, this information and its collection is substantially different from the "sensor in the wheelchair" or "microphone in the bar" analogies that Amici uses. In those cases, that information would never be collected for any reason outside the context of a court order. In the SonicBlue case, this information is closer to, for example, Best Buy's information on what kinds of people buy what kinds of products from which Best Buy stores. Best Buy probably collects this information, and there are hypothetical court cases where this would be relevant and completely acceptable for the plaintiff to order its discovery (or how ever that should be worded).
SonicBlue is in a tricky situation here. The broadcast industry is asking for information that SonicBlue might reasonably be collecting and that they very well may want to be collecting if they're not. The broadcast industry wants information on how the ReplayTV devices are being used, and that information is relevant to the case. SonicBlue certainly has an interest in how their PVRs are being used, and that information is at their fingertips.
I don't think that Amici is going to convince the court of their position. The personal privacy issues can be easily addressed while still collecting the information that is relevant to the case. And that information is not merely relevant -- it's crucial. Is the ReplayTV a device that exists to break copyright law? Or is it a perfectly acceptable example of fair use in the VCR tradition? SonicBlue can supply strong evidence one way or another simply by checking to see how their product is being used. As I said, it's at their fingertips, and there's good reason to believe that they are or will be collecting it anyway.
Having said all that, I'm as rabidly angry about the entertainment industry's methods and goals in the wider debate as anyone here on Slashdot.
THIS IS REDICULOUS!! Is there any "viewer" out there that actually considers themselves as having agreed to watch ad spots in order to receive the programming?? Certainly I don't and never will.
My "Contract" with the advertisers/Networks is at most this: "I pay the cable company to bring me programming. I expect to receive 100 or so channels of programming that may or may not be interesting to me or consist of quality content. Except for premium channels, I expect to be annoyed during the airing of a program by interruptions from advertisers attempting to gain my attention."
But I never "agreed" to actually watch these annoying interruptions. In fact if I am ever forced into such a contract in order to receive a television program I'll just refuse to watch the program and the included advertisements entirely.
If the advertisers actually want to compete for attention in the new age of PVRs then I think they should take a history lesson. In the early days of television Advertisers sponsored a particular show and their product placement and other advertisements where made during the airing of the show. Famous examples would be shows like Howdy Doody or the Milton Berle Show, etc... It was in the best interest of both the viewer and the advertiser to produce high quality shows. It was almost impossible to be aware of the program without being aware of the sponsor and vice verse.
These days we have hundreds of times more content produced yearly but as we all know, 99% of it is pure crap. And the advertisements are, by far, the worst of the crap. Consisting of inane or irrelevant premises and pandering to the overall stupidity of the masses. 99% of all advertisements are no better than e-mail spam. Relying on contacing millions of recipients who don't need the product, can't afford the product or would be harmed by the product in an attempt to reach the overwhelming minority of recipients who do need the product or are stupid enough to waste their money on the product.
If PVRs result in the decrease attendance of advertisements then advertisers will be lessing willing to pay for advertisement time. Decrease revenues from advertsiements would result in the decreased ability for channels to remain operative resulting in fewer available channels. Fewer channels means less air time and thus an increase in competition for air time. Increase competition means a greater likelyhood of quality shows on the fewer available channels.
So PVRs result in fewer channels with an increased signal to noise ratio? I'm all for that. I don't need to watch crap like VIP or Greg the Bunny and I especially do not need to see another vacuous automobile commercial.
I will never live for sake of another man, nor ask another man to live for mine.