Television vs viewers

As proud, happy long-time owners of a TiVo, we read with interest:

Digital Domain: Someone Has to Pay for TV. But Who? And How?

The right to fast-forward past those commercials may be under attack.
... a new kind of television set and digital video recorder recently filed by a unit of Royal Philips Electronics at the United States Patent and Trademark Office. The design appears to threaten the inalienable right to channel-surf during commercials or fast-forward through ads in programs you've taped.

A second, calmer reading of the patent application revealed that the proposed design would uphold the right to avoid commercials, but only for those who paid a fee. Those disinclined to pay would be prevented from changing channels during commercials. If the viewer tried to circumvent the system by recording the program and skipping the ads during playback, the new, improved recorder would detect when a commercial segment was being displayed and disable the fast-forward button for the duration.

As a business proposition, the concept appears dead on arrival: what consumer would voluntarily buy a television designed to charge fees for using it?

...in data collected by TiVo, which has 4.4 million subscribers. Davina Kent, a TiVo vice president, said that when its customers watch recorded programs, they skip 70 percent of the commercials.

Of course, 70 percent of commercials are shown over, over, and over until everyone knows exactly what will happen.

Television content producers and network executives have contempt for their audience:

The television industry has not figured out how best to respond. Four years ago, Jamie Kellner, then head of the Turner Broadcasting System, remarked in an interview in CableWorld magazine that viewers who used DVR's to fast-forward past commercials were committing “theft,” then a moment later described it as “stealing the programming.” He did allow trips to the bathroom as a noncriminal exemption.

So, are we to expect arm restraints, forcing viewers to watch that damn, inane Chevrolet commercial again? How about RFID chips implanted in our foreheads, so the television only will play when our faces are pointed in rapt attention towards the glass teat? In the pre-TiVo days: did nobody wash dishes or chop vegetables while the television played in the background? Of course, we all did, and still do.

James Boyle, a law professor at Duke University, said that broadcasters offer a program knowing that only a fraction of the audience watches the commercials. Advertisers, he added, buy nothing more than “an option on a probability,” and the viewer is no more obligated to watch every commercial than a driver is obligated to read every billboard.

Exactly. If my options were: sit riveted in direct line of sight of a ultra-modern, anti-channel-surfing television, or read a book; the book wins every time.

The trickiest legal issue posed by DVR's is not ad-skipping, but something even more basic: the right to freely make a copy of a program for personal use in the first place. My assertion of an inalienable right to fast-forward through commercials would be rendered moot if the creators of the program that I am racing to rejoin were permitted to fully exercise the protections of copyright and impose control over the copying of their creative work.

The courts uphold “fair use” only when it doesn't harm the commercial value of the copyrighted work. At the time the suit was brought, skipping ads during playback on a clunky tape machine was hardly worth the considerable trouble. At the trial, survey data showed that only about 25 percent of recorded ads were skipped. In the face of testimony by Fred Rogers of “Mister Rogers' Neighborhood” on PBS, who welcomed home copying of his program, the movie studios that brought the lawsuit failed to convince the judge that VCR copying of televised movies was hurting their business.

WOULD indisputable evidence that DVR's facilitated ad-skipping make a difference if the Sony case were decided today? Paul Goldstein, a professor at Stanford Law School, thinks that it might. “If you were working with a clean slate, and everything was the same except for the ad-skipping rate — that's a compelling fact that could have made a difference,” he said.

Randal C. Picker, a law professor of the University of Chicago, pointed to the commercial availability of network programs at places like iTunes as another enormously important change to be considered by the court if a case like Sony were litigated today.

How to pay for free television is the overarching but unanswered question, Professor Picker said. Speaking as a viewer, he said: “I want the other guy to watch advertising. But we can't all not watch.”

Tags: Advertising, /fair_use, /TiVo