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DMCA Loophole For Peer-to-Peer TV Show Sharing?
An anonymous reader writes "Fortune.com asks, "Is TV Show Swapping Legal? For those using TiVos or new Windows PCs, it just might be." Why? "The law that ensnared ... DVD hackers, the Digital Millennium Copyright Act, doesn't specifically address the question of [personal video recorders]. But when it comes to the legality of hacking digital media, the law zeroes in on 'circumvention' -- did hackers have to circumvent protection to copy the video? Several hackers who have published their techniques online say they didn't have to crack anything to extract video from their TiVos""
To the perspective of the networks, don't they want MORE people watching their shows? Plus, taping shows is already legal, what's the difference with letting people put it on computer?
copyright issue.
Trading copies of the program(regardless of medium) to people is a copyright violation.
sure, you can record a show for your own use, but not for distribution.
The Kruger Dunning explains most post on
I wouldn't be surprised if a time-to-live feature is added to "swapping" devices. I.e., you can swap all you want, but the swapped copy has a limited lifetime and then erases itself. Like those disposable DVD's.
This could be easily done by the folks at TiVo or ReplayTV.
Even if the DMCA does not prohibit sharing TV shows, regular copyright law probably does. However, software and hardware which allows TV show sharing might be legal to sell if this article is right. OTOH, they didn't need the DMCA to shut down Napster, so my guess is that the TV networks will use similar contributory infringement arguments if they want to go after ExtractStream and friends.
Taking the poster's "legal analysis" as true "sharing" copies of television shows is still a violation of other copyright laws. As the MP3.com case proved, no one has a right to make a copy for you. Only you have the right to "space shift" (transfer to VHS, CDR, etc) an mp3 file (or television show). This is where Napster and MP3.com were found to violate copyright law. Not the DMCA's anticircumvision.
I have a ReplayTV. Love it! Can share my files directly off the Replay to the net (with some firewall rules). Not to mention software like DVArchive that "emulates" another replay on my network allowing me to dump the files from the replay to my fileserver and share them back again for later viewing.
The dingo ate my sig.
Compare this to open source software:
The code is freely available. You can download it from the internet and do whatever you want with it. Anyone can watch a TV show and record it if they want.
So why do people pay for things like Linux distributions? It's the convenience. They're not paying for the code, they're paying for the packaging, the tech support, etc.
Same thing with the TV shows. If people want to record them and share them for free (essentially providing a service), that's their perogative.
Just because the DMCA doesn't forbid it doesn't mean it's legal. Show-swapping is still a violation of ordinary, regular copyright, whether done via TiVo or VHS tape, regardless of what the DMCA says.
If you pay to receive programming, and you make a videotape of it, and you give that videotape to someone who doesn't pay to receive the same programming, you're violating copyright and are breaking the law. Using a TiVo doesn't change that.
The wonderful (not) thing about the DMCA is that anything can be considered a protection system, because protection is in the eye of the content provider. The only way you can tell if your actions are unlawful circumvention are to try them and see if you get sent to jail.
-- ;-)
Kuro5hin.org: where the good times never end.
Pulling video out of a TiVo and burning it on a DVD is just the same as taping the TiVo show onto VHS tape. The only difference is the media. Now if you go and give (make available for download or copies on DVD) the recorded shows to multiple people it's distribution, and I'll wager that it'd be as illegal to do this with VHS tape as it is with DVDs or MPEG files. The usable time to live quality feature of a VHS protected it more than the infinately copyable DVDs, so I figure that the DVD copies may very well get more attention than VHS.
It's always been illegal to swap TV shows under conventional copyright law, nothing under fair use covers that. It covers time-shifting, and using small portions in various ways.
What DMCA added was that it outlawed any tool or information that could be used to circumvent protection mechanisms (and screw any fair use or other applications it might have).
I really don't see the point here...
Kjella
Live today, because you never know what tomorrow brings
Seriously, though, the governments and corporations of the world have taken advantage of us by pawning off all these "digital" versions of laws that are already in place. This is why the EFF keeps fighting it, and why everyone should too.
The wheel is turning, but the hamster is dead.
Here's the deal. It is just fine to have a VCR, because VCR's are capable of substantial noninfringing use and don't get sold primarily for swapping. It is not fine to have a centrally managed PTP file sharing system like Napster for reasons only the 9th Circuit can fathom, and Napster couldn't afford to bring to the Supreme Court (which reversed the 9th Circuit's opinion in the Betamax case). Now, there is also the claim of DMCA, which I agree is not an effective circumvention method, particularly when used just like a VCR -- the content that was broadcast was in the clear, and not encrypted.
But this does not mean that a mechanism for sharing TIVO files digitally would be lawful, or that any particular sharing would be lawful -- any more than it means that a VCR tape copy made of a movie may be freely shared (it can't be). If someone contributes to the infringement of another, and there is no substantial noninfringing use, there may be liabliity in the contributor as well -- in most every case, the TiVo user who swaps files is very likely an infringer of Copyright.
In short, the devil is in the details, and there is no meaningful TiVo exception to the Copyright Act. That the DMCA might not apply (and it probably does not unless the original content were encoded in some manner) is beside the point, they might get you the same way they got Napster -- straightforward and good old-fashioned claims of copyright infringement.
Sure, but given a choice of the file with thousands of sources and ample bandwidth versuses the one with 3-4 from a couple of cable modems capped at 128k upstream, the "official" version will prevail. You can't control everything, and this seems to be the basic lack of understanding with these corporations.
However, the person who made the box, provided the feature, or wrote a piece of software to get data out of a Tivo (ExtractStream) to the best of my knowledge did not themselves infringe existing copyright law. That's why the DMCA is relevant. Contributory infringement, admittedly, already existed, but there is a redline test involving "primary purpose or effect". The DMCA doesn't require any such test to be applied if "circumvention" has occured (no this isn't a formal legal analysis, just my current recollection).
..by reporting statistics like "Our show is the most swapped on the internet" which would probably do wonders for in show advertising.
I.e., imagine Stan and Kyle drinking Pepsi and belching. Or Cartman eating Hormel Beans and... well, you get the idea.
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Personally, I'm waiting for the content faction (RIAA, MPAA, et al...) to take on Microsoft for "contributory copyright infringement" . It is illegal to market a device whose primary purpose is to facilitate copyright infringement, and it appears that the new Windows functionality does just this*. It's only a matter of time before:
- The content faction sues Microsoft, or
- Microsoft "retroactively" (via Automatic Update...)incorporates DRM into its OS
From my standpoint, it seems as if option 1 is better for Microsoft; DRM could hamper the widespread adoption of the new Windows OS's. Though Microsoft would like to push Palladium, I think they realize that they'll sell more operating systems without it - simply because people need a good reason to upgrade. Being able to record and swap tv shows is a significant reason to the average PC buyer; without it, Microsoft might have a harder time selling upgrades, especially in this stagnant economy.Personally, I'd like to see Microsoft buck the content faction, and get sued. As both Microsoft and the content faction have lots of money, it would be interesting to see them embroiled in a legal battle against each other, rather than trying to screw their customers...
* - yes, ATI has produced hardware which allowed PC users to record tv shows, however, it is not nearly as universally recognized or used as Microsoft. Microsoft's backing of tv recording programs has a much bigger impact, as the software will be on virtually every desktop sold.
The society for a thought-free internet welcomes you.
Although this may not violate the DMCA (depending on how courts construe "circumvention"), it violates several other criminal statutes. First, it violates the No Electronic Theft Act, which criminalized copyright violations even without a profit motive. While the Act requires a value of $1000 of content to trigger its provisions, courts have allowed this threshold to be met by production or "black market" prices rather than realistic costs. In addition, this may violate the National Information Infrastructure Protection Act, which criminalized unauthorized access to servers. While this was intended as an anti-hacking law, perhaps it could be extended to unauthorized intrusion into one's own server (Tivo) if (and this is a HUGE if) owning the thing doesn't automatically authorize one to access it.
While the second of these is speculative, the first can and has been used to prosecute warez folks so I have no doubt the Justice Department of John Ashcroft would use it should entertainment companies begin wailing about TV piracy.
Make cheese not war 8:)
Again, I don't understand this argument. There is nothing forcing you to read the adverts in magazines, newspapers, billboards. TV has only been different because that is the way the technology worked. This is no longer the case and they need to get over that fact.
and don't get harrassed by it if I have a ripped vcd or mpeg of it.
Kind of ironic, isn't it. Saying that, I can't imagine anyone saying, "bugger, can't watch it then, better bin it" after seeing the warning on a pirate.
Personally, I bought a hardware DVD player with a chip to disable the "user prohibitions" features. No macrovision (use my VCR to convert the composite out to RF, fed around the house) and of course, multi-region. Bliss!! Moral of the story...research before you buy. :-)
Is it circumvention of copy control to copy mp3s off cd and put them on p2p? No. Is it illegal? Yes. /DeCSS/ was circumvention.
I don't know who got the idea that the issue with p2p was circumvention. The issue with p2p was straight-up copyright violation, illegal for well over a century prior to the DMCA. The issue with
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
On one hand, I want to say "GO TEAM!" On the other hand, if this just whips around and Big Brother tries to address the problem by removing PVRs from the equation entirely by going after TiVO, et al, I'll be very, very depressed. On the TiVO Community board, discussion about data extraction are banned for just that reason... no one wants the lightning rod.
My TiVO is very near and dear to my heart. As just about every member of the TiVO Cult chants, "It changes the way you watch television." I want this technology as much freedom to develop as we can squeeze out of our rapidly gestapoing society.
Contributory infringement, admittedly, already existed, but there is a redline test involving "primary purpose or effect". The DMCA doesn't require any such test to be applied if "circumvention" has occured
Actually, the DMCA does require such a test to be applied, in 17 USC 1201(b), for devices designed or marketed to break "a technological measure that effectively protects a right of a copyright owner under this title". The right to exclude others from making unauthorized fair use of a copyrighted work is not such a right. Thus, section 1201(b) merely codifies the guidelines developed in e.g. Sony v. Universal.
On the other hand, I'm not so sure about 1201(a).
Will I retire or break 10K?
Yes, if CBS offered commercial-laden downloads on p2p, (without deploying any imaginative new impediments) they'd become the vastly preferred download source.
In comparison to random tivo-rippers, they'd have superior timeliness, audiovisual quality, and legality (the viewers can sooth that tiny pange of guilt that plagues them today).
The TV networks might even arrange some formula to inject p2p downloads into their Nielsen computations, so their income can proceed as usual.
However, if this happens, their profit model will immediately face a new menace: "virtual copyright infringment". Some hackers will create/modify a software MPEG player so that it applies a simple EDL (Edit Directive List) to the video as it plays.
When following an EDL, a player doesn't read through the stream linearly from start to finish. ("Begin at the beginning, and go on to the end. Then stop"). Instead it may start playing 15 seconds in, then pause after 24 seconds and skip ahead 30 seconds before continuing, etc. Using an appropriate EDL, you could for instance watch a PG-13 edit of an R-rated DVD.
Or, more worrisome in this scenario, you could skip over the commercials of a recorded TV program.
So what will happen eventually is that the first few viewers to download a TV show will create a list of commercial start/end times when watching the show (just tap a button when viewing it for the first time) and then dissemenate a no-commercials EDL far and wide.
The EDL might be spread on a p2p network, or ftp site. But it's such a tiny file that you could easily transmit them through (mass?) email or IM instead. If the EDLs have a naming convention based on the authoritative filename used when the TV network released their show, then the viewer's process could be automated even more: when you start to play an official MPEG, the player hops onto Morpheus and searches for an EDL matching the commercial breaks for the video in question. (rather like the CD-audio database)
I could go on and discuss possible countermeasures (technical, legal, or creative) to the threat of EDL and virtual-infringment, but you get the idea.
Actually, I'd like to see a per channel charge, if you could specify the channels you wanted. At $5/Month/Channel I'd be paying about $25-30/Month, provided tha channels I wanted could learn to behave.
Sigmentation fault - core dumped
Actually, the networks aren't afraid of copies. They're afraid of *perfect* copies.
... Grrrr!" Valenti goes on and on about the danger of "perfect" copies. I've seen him speak twice -- a amazingly underwhelming experience -- and find him to be much to old to actually "get" what's going on.
s o-I-have-something-to-fuck-on-weekends executives will be a helluva lot *more* worried if one day we wake up to see goofy Donald Rumsfield breaking into 'Days of Our Lives' to tell us that we've just stopped and boarded an unflagged North Korean tanker headed for an unspecified port with 100 kilograms of plutonium on board.
Hence, the fear of digital.
Geriatric Jack "Maddog
He doesn't get what's going on. His staff does, but he's the spokesperson, and he's not a very good one. Valenti is much more interesting -- and actually engaging -- when he talks about his time in the Kennedy (that's right, JFK) White House.
But this digital stuff -- and the fear that Valenti loves to spread -- just doesn't resonate when Valenti is doing the talking. He's like some old guy talking about "The Pink Floyd" while watching a PF video and then pointing, saying, "Is that Pink? Is that guy Pink?"
He's the sort of guy that would do the much-maligned "Funky White Guy" dance -- squinting, sorta pursing his lips, lifting his hands, and trying to shake once or twice to the beat. It's not only not effective, but it's not funny. It's abymsal, in fact, and that's exactly the sort of aura that Valenti projects among the 20/30/early 40 crowd -- at least when he's doing his public speaking thing.
People look at him and have this: "Is this guy for fucking real?" look. We all clap politely but know nothing's gonna change until he takes his retirement, leases that new Lexus, and heads out to Tuscon or Phoenix or Palm Desert or wherever has-beens go to relax and prune-out.
The other issue -- at least when I saw him speak -- was the fact that Valenti was talking about digital copying as if it were a fate worse than terrorism. I mean, for fuck's sake, let's be real.
The neo-Islamo-fascist weapons trade is serious.
Kim "Look at my lofty bouffant hair-do" Il-Jung proliferating his plutonium and U-235 is serious.
Angry Chechen mobsters with lead-lined cannisters that are warm to the touch are serious.
But a copy of "Buffy the Vampire Slayer" -- even if it's a perfect copy -- is not serious.
Yes, yes, I understand that a good portion of media America is concerned and worried about "proliferation" of perfect copies. But believe me, that same group of Italian-suit-wearing-hire-me-a-nice-young-intern-
And the other issue with Valenti is that the word "compromise" is simply not in his vocabulary. Several folks asked him about whether or not he could find a "happpy medium" and his response was always, no, digital copies must be protected. Period.
So he didn't score any points -- at least not with me and booze-whores I hang out with.
Unless you're buying your DVDs somewhere strange, you don't have a license to anything. You own a single legal copy of the movie as encoded onto the DVD. There is no license either granting you additional freedoms or taking freedoms away from you. You are free to use the DVD however you like, within the limits of copyright law. You are free to watch it, destroy it, sell it, give it away, and loan it out without any license needed, just like a VHS tape, a CD, a book, or a magazine. Assuming you can get around the Macrovision and CSS without violating the DMCA, you're even free to make copies for personal use. Copyright law does places some limitations on behavior, including prohibitions on distributing copies of the work and publically perform/show/broadcast it. (The DMCA part of copyright law effectively bans software capable of breaking the encryption on DVDs.)
The idea that you need a license of some sort to make personal use of copyright protected content is wrong. Many copyright based businesses are spreading this erroneously idea because it increases their effective power. Don't buy into it!
(The claim that a publisher can use a click-through license on software is based on some very shaky assumptions and still lacks a good national test case. Any attempt to spread such behavior to DVDs or other media would likely fail miserably.)
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