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Date Posted: 00:30:33 05/04/02 Sat
Author: Drummond
Subject: Use a mute button, go to jail

1 Top Ten New Copyright Crimes
2 Court orders ReplayTV to monitor user's viewing choices





Posted by Ernest Miller on Thursday, May 02 @ 13:05:27 EDT

Jamie Kellner, chairman and CEO of Turner Broadcasting
(an AOL Time Warner company), was recently interviewed
by [INSIDE] on the future of television (Content's
King). In the interview, Mr. Kellner said some very
interesting things, including characterizing those who
skip television commercials as thieves:

[Ad skips are] theft. Your contract with the
network when you get the show is you're going to
watch the spots. Otherwise you couldn't get the
show on an ad-supported basis. Any time you skip
a commercial or watch the button you're actually
stealing the programming.

To help develop Mr. Kellner's unfortunately common (at
least in Hollywood) view of copyright, LawMeme offers
the top ten new copyright crimes, as well as further
choice quotes and commentary from Mr. Kellner's
interview.

10. Watching PBS without making a donation.

You know who you are, you cheap ...

9. Changing radio stations in the car when a commercial
comes on.

Future radios will prevent listeners from changing
channels when a commercial comes on. The RIAA has not
yet taken a position on whether it is permissible to
switch channels when the listener doesn't like the
song.

8. Channel Surfing during commercials, especially with
Picture-in-Picture capability.

Similar to radio, skipping through channels,
particularly when combined with picture-in-picture
(which permits viewers to know precisely when an ad
block ends), will be prohibited.

7. Getting into a movie after the previews, but just in
time for the main feature.

Theaters will be required to close their doors once the
advertising and previews have begun. The MPAA has not
yet taken a position on time-in-seat requirements for
advertising in the pre-preview slide show or whether
audiences should be compelled to watch the credits at
the end of the movie.

6. PBS

How can commercially sponsored broadcast networks
compete with a government sponsored network?

5. Inviting friends over to watch pay-per-view.

When you call to authorize viewing, you will be
required to indicate the number of people present to
watch. Compliance will be monitored and viewers must
identify themselves.

4. Blocking pop-up ads on the Internet.

Yeah, Mozilla and Opera users, this means you!

3. Not buying things from the advertisers on television
shows.

Part of your contract is that not only do you watch the
advertisements, but that you subsequently buy from the
advertisers. If you don't buy from the advertisers, the
whole system breaks down.

2. Watching MTV if you are older than 35 or Matlock
reruns if you are younger than 40.

Advertisers buy ads to reach a particular demographic.
If you aren't part of that demographic you are,
effectively, a thief.

1. Libraries and librarians.

This is why we have the Racketeer Influenced and
Corrupt Organization (RICO) Act.

Seriously, Kellner, who is a very powerful man, has
said some truly disturbing things in his interview. Not
merely once, or off-the-cuff, but multiple times in
many different ways. At least Kellner is reasonably
straightforward in his intentions, unlike Jack Valenti.

Kellner on bathroom breaks:

I guess there's a certain amount of tolerance for
going to the bathroom. But if you formalize it
and you create a device that skips certain second
increments, you've got that only for one reason,
unless you go to the bathroom for 30 seconds.
They've done that just to make it easy for
someone to skip a commercial.

Here, of course, he is referring to the ReplayTV 4000,
which can skip forward in 30 second increments and has
already been sued (basically, using Kellner's theory).
Of course, note that there is only "a certain amount of
tolerance." Go to the bathroom too much and you are a
thief.

Kellner on Sony v. Universal, i.e. the Betamax case

Our company is working on a number of different
VOD [Video on Demand] models. The question's
whether these are going to be head-end-based
models or in-home models and whether ultimately
there's going to be a license required for use of
the copyrighted material, or whether people make
a bet the Betamax case can cover this usage. My
bet would be the Betamax case is not going to
cover this usage. What was a highly questionable
decision with the new technology will not stand
up to the potential of the digital world. Whether
there's going to be a challenge or whether it's
going to be legislation, there's going to be some
way in the digital world that we can protect
copywritten material. I think that that's
inevitable....

Again, I think that whether it's legislation,
whether it's new technology, whether it's
challenging Betamax, whatever it is in the video
marketplace, we're going to have to find a way to
protect copywritten material or there will be
less of it made or it will not be made available
in windows where it's not protectable and that's
not good for consumers, so there's got to be some
way it's protected.

Basically, Kellner is challenging the legitimacy of
Sony v. Universal, which made it clear that VCRs are
legal. While most copyright owners claim not to want to
interfere with the right of citizens to time shift,
Kellner does away with the pretense. In his view, Sony
"was a highly questionable decision" in the first
place.

Kellner on Napster

The audio marketplace--Napster and other
companies had a great game going. They figured
out how to use the Internet to give music away
that they didn't own and make it into a business.
Everyone was planning on getting rich there at
one point. The companies that are financing and
own copyrights stepped in and challenged it, and
it's not a very rosy picture for them right now.
I think the idea of copyright is very important--
and it's respected by the courts and our
government--and as people realize the potential
of what the Internet with digital can do in terms
of distribution, I think there's a good decision
to be made that will protect the copyright....
Someone's going to have to recognize that once
we've entered the digital world people can send
out perfect copies without any costs to large
numbers of people in many different territories
of the world [and] can dramatically disrupt the
system that we've built that allows us to produce
and distribute content and pay for it and
make...a profit in the investment, and that has
to be addressed.

What has to be addressed? Copyright infringement is
illegal. The Napster case was decided (mostly
correctly) on established copyright law. There will be
disruptions in distribution chains, but that is the
beauty of capitalism. Robert Heinlein said it well:

There has grown up in the minds of certain groups
in this country the notion that because a man or
a corporation has made a profit out of the public
for a number of years, the government and the
courts are charged with the duty of guaranteeing
such profit in the future, even in the face of
changing circumstances and contrary public
interest. This strange doctrine is not supported
by statute nor common law. Neither individuals
nor corporations have any right to come into
court and ask that the clock of history be
stopped ,or turned back, for their private
benefit.

- "Life-Line"

Kellner on Innovation

I encourage innovation, and I believe that we
should try to satisfy the marketplace, make it as
easy and convenient for people to get what they
want out of their cable subscriptions, so I'm all
for that. I'm for multiplex and multiplay because
in many ways it does a similar thing, and it
doesn't add in the cost of VOD. It's sort of half
a step in the same direction for those who don't
want to take the full step, and it's something
that can be done relatively quickly and easily.
But I'm certainly not opposed, and I encourage
the idea of exploring new models with new
technology that make it better for people. At the
same time, we have to make sure we don't damage
the existing businesses, whether it's pay-per-
view business--what does it do to that on the
cable side--and that we don't damage the
advertising-supported networks, cable and
broadcast.

The problem with capitalism, see, is that in creating
new markets you usually destroy older markets. Kellner
and Hollywood just don't seem to understand that. As
Copyfight put it more eloquently (Speak Softly and
Carry a Big Sledgehammer), Hollywood has fallen in love
with the creative and distribution possibilities of the
Internet, but feel betrayed that those same
possibilities will destroy many of their existing
business models.

Kellner on Contracts

I've spoken out about this a number of times.
Again, it doesn't handle the deal that exists.
The only payment for a lot [of content] is the
willingness of the viewer to watch the spot, the
commercial. That's part of the contract between
the network and the viewer. For anybody to step
in between that content and encourage the viewer
to disregard the payment in time that he's
making--I think everybody should fight those
people...or let the viewer have a subscription
model where they pay for that, in which case the
monies can be taken in and distributed back to
cover the loss of the ad revenue. This is the
time to honestly address it; also, for people to
deal with it. If you think it's something that's
good for consumers, give them the choice of
either watching the commercials or paying
incremental money for the service and make sure
that people in the business understand the
economic damage they can do by licensing this
product.

Will someone please send this man to business school?
No one is forcing Turner to use their free broadcast
airwaves. Turner is perfectly free to stick with
subscription cable revenues. If they don't like the
characteristics of a particular medium, they don't have
to use it. No medium can force their readers to pay
attention to advertisements (newspaper, radio, movies,
etc.). What makes television different?

Kellner on how television won't change

I don't think [PVRs] changes the way you make
programming. I think it may change the way you
market programming. If you have something you
really, really believe in and you have a large
installed base of PVRs out there, you may be
willing to invest a lot more money on the
launching and the marketing just to get the
PVR/VOD viewer to go home and log in to receive
the show because you can probably get a lot of
additional viewership. If you're against tough
competition, you could put a program against
Friends and if there's a large PVR base you could
try to pick up people who are still going to
watch Friends, but will you watch the next half-
hour, the next hour? You pick up People magazine
and see this ad for a new show and you see a lot
of promotion on the air and if it's a good enough
idea maybe you go home and log in on your PVR.
You may get very aggressive at promotion because
you have two shots at getting people there versus
one.

If I were Turner, I would seriously consider firing
this guy. Of course PVRs will change the way you make
programming. Fragmented special audiences require
different types of production than the nearly
monolithic television audiences of the past. Based on
Kellner's theory, cable shouldn't have changed the way
programming was made either. Formal networks are dying,
and will die (unless courts or legislators change
things). Even Kellner's own innovations, such as multi-
casting (showing the same show more than once a week or
on two or more channels), have changed the way shows
are produced. Sheesh, no wonder AOL-TW stock is so
depressed.

Kellner on people as means to his ends and not as ends
in themselves

This is from a letter Jamie Kellner wrote to fans of
Seventh Heaven, explaining that viewers are commodities
to be sold to advertisers, "Selling high volumes of
18-34 adults to advertisers does not mean we aren't
very excited about reaching a broader audience ..."
(LUV-7H Correspondence with James Kellner).

Additional Resources

A number of other sites have picked up on the
controversy: Slashdot, of course (Turner CEO: "PVR
Users Are Thieves"). Kuro5hin leads off its post on the
subject (Turner CEO says: If you avert your eyes, you
are stealing!) with a highly appropriate quote:

...And viddy films I would. Where I was taken to,
brothers, was like no cine I'd been in before. I
was bound up in a straight-jacket and my gulliver
was strapped to a headrest with like wires
running away from it. Then they clamped like
lidlocks on my eyes so I could not shut them no
matter how hard I tried. It seemed a bit crazy to
me, but I let them get on with what they wanted
to get on with. If I was to be a free young
malchick in a fortnight's time, I would put up
with much in the meantime, my brothers...

-- Alex, from A Clockwork Orange

The Shifted Librarian's bank account is already getting
a work out (The Shifted Librarian: Content's King). Go
to TiVo Community (aka "the Den of Thieves") for some
heartfelt responses (News: Turner CEO calls TiVo
"Theft"). U.S.S. Clueless's Den Beste has a few choice
things to say (Contracts and Obligations), as does Cory
Doctorow (Hollywood fatcat calls TiVo use "theft").

Unrelated to the current flap is another website, which
is the number two google result for "Jamie Kellner", a
website entitled, "J. Kellner, Source of All Evil".

Interestingly, AOL-TW owns part of TiVo (TiVo
Partners). But, we all know that things are not going
very well inside AOL-TW.

===

SonicBlue ordered to track ReplayTV users' viewing choices

By Dawn C. Chmielewski
Posted on Thu, May. 02, 2002
Mercury News


A federal magistrate in Los Angeles has ordered
SonicBlue to spy on thousands of digital video recorder
users -- monitoring every show they record, every
commercial they skip and every program they send
electronically to a friend.

Central District Court Magistrate Charles F. Eick told
SonicBlue to gather "all available information" about
how consumers use the Santa Clara company's latest
generation ReplayTV 4000 video recorders, and turn the
information over to the film studios and television
networks suing it for contributing to copyright
infringement.

"We've been ordered to invade the privacy of our
customers," said Ken Potashner, SonicBlue's chairman
and chief executive. "This is something that we find
personally very troubling."

Privacy advocates condemned the ruling which came
during the pre-trial discovery process of a series of
lawsuits against SonicBlue.

Last October, the studios and networks accused
SonicBlue of permitting copyright-infringement with its
latest digital video recorder. The machines work like a
VCR but record to a hard drive instead of video tape.

The plaintiffs asked SonicBlue to turn over information
on how individuals use the recording devices. SonicBlue
said it does not track that information. The
magistrate, who is supervising discovery, ordered the
company to write software in the next 60 days that
would record every "click" from every customer's remote
control.

Four separate lawsuits focus on a pair of features on
the ReplayTV 4000: an "AutoSkip" function that allows
the device to bypass commercials while recording a
program and a high-speed Internet port that allows
users to download programs from the Internet or send
them to other ReplayTV 4000 users.

The suits allege these features effectively deprive
networks of the means of paying for their programs --
advertising revenue. And they allow people who paid for
premium programming -- say HBO's "Six Feet Under" -- to
send it to consumers who haven't.

A Disney spokeswoman accused SonicBlue of a "deliberate
and completely misleading" characterization of the
court's order. The studios and networks are merely
seeking access to the same kind of anonymous data that
SonicBlue's privacy policy says it is entitled to
collect about its users, she said.

Attorneys for the studios say they need this
information to determine the extent to which the
ReplayTV 4000 allows consumers to steal copyrighted
movies and television shows.

"None of the data the plaintiffs are seeking identifies
any individuals," said Michelle Bergman, the Disney
spokeswoman. "We respect viewer privacy and the order
we obtained respects that important right. We are
simply protecting our copyrighted content and all whose
livelihoods are dependent on it."

SonicBlue said it stopped collecting anonymous user
data in May 2001, after a furor erupted over competitor
TiVo's practice of secretly gathering information about
its users' viewing habits. TiVo's machine would collect
viewing data and send it over a phone line back to the
company.

The ruling requires SonicBlue to conduct the kind of
surveillance it never anticipated in the privacy policy
it outlined to its subscribers, said Laurence Pulgram,
the San Francisco attorney representing SonicBlue.

Court documents, which Pulgram provided, show that
SonicBlue would be required to document which shows
users copy, store and view; what commercials they skip
and which programs they send to other users, through
the "Send Show" feature.

The court ruling also requires SonicBlue to track
individual users -- not by name, but through "unique
identification numbers."

"The concern is once you collect information about an
individual, the individual may be concerned that he or
she could be linked to that information at some time,"
said Pulgram.

Privacy advocates said the ruling is a more egregious
invasion of privacy than TiVo committed. In that case,
TiVo collected aggregated data that was purposefully
separated from personal details about the viewer. And
consumers could opt-out, keeping their viewing habits
from being collected.

ReplayTV users won't have that choice.

'It's an incredible invasion of privacy," said Fred von
Lohmann, an intellectual property expert for the
Electronic Frontier Foundation. "But second -- and
equally important -- is what the Electronic Frontier
Foundation and others have been saying was going to
happen now for some time. Basically, under the guise of
copyright laws, courts are going to be put in a
position of telling technology companies how to build
their products."

Pulgram said SonicBlue plans to ask the federal
district court trial judge to review the magistrate's
ruling.

"We respect Judge Eick's decision on this and on
numerous issues he had before him at the time," said
Pulgram. 'But in our view, it is an unprecedented
intrusion into the privacy of TV viewers."

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