The irony of RS-DVR vs MRV

[sfhub]

http://www.cepro.com/news/editorial/18057.html

I thought it was kind of ironic that while MRV (multi-room viewing, streaming from TiVo to another within the home) is being delayed endlessly waiting for CableLABs certification, Cablevision was out deploying RS-DVR (remote storage DVR) to their customers which basically allows them to stream content to hundreds of thousands of customers not in the same house. My interpretation of RS-DVR is it basically gives you a DVR interface, but the shows are recorded at the head-end/server side and when you request to play them it is similar to VOD streaming.

Well it looks like the studios are spanking Cablevision as well. In this case, I think Cablevision is really making a business of it and the usage is not the same as a personal TiVo doing MRV, but conceptually it is very similar, access a remote guide for your recorded shows, press play, stream the show.

[dbenrosen]

Cablevision never actually deployed this. They wanted to, but the networks and studios came in and put the kabosh on it with the lawsuit whose ruling was quoted in that article.

When the Cablevision tech come out to install my cablecards back in October he mentioned this service, and I told him they would never get it off the ground due to legal problems.

[classicsat]

Apples and Oranges.

RS-DVR, as originally proposed, could be considered a copyright violation, as it made available a copy of a program not made by the end user, without obtaining that right from the rightsholder.

The rightsholders themselves fundamentally (I suppose) have no problem with MRV, as the content stays in ones home, and is made from the end users programming source. The contentino with that is the DRM used is supposedly not suitable to Cablelabs, and ergo cable.

[sfhub]

As I already mentioned RS-DVR is different than a personal TiVo because of who is doing the recording, however the technology is going through the same motions.

So CableVision can implement a feature comparable to and competing with TiVo MRV and does not need to be exposed to CableLAB's infinite certification delay.

[pkscout]

Apples and Oranges.

RS-DVR, as originally proposed, could be considered a copyright violation, as it made available a copy of a program not made by the end user, without obtaining that right from the rightsholder.

I don't buy that argument (although the courts did). I did make the copy. I asked the system to record it. The system recorded it. The space I have available to record things was reduced. Nobody else can watch my shows, I can't watch theirs, and I only get space back if I delete something.

That sounds exactly like a TiVo except that the show is stored somewhere else. Just another example of copyright law stifling rather than encouraging innovation.

[sfhub]

We can take the abstraction to the next level.

Let's say TiVo came out with a diskless PVR with all the data storage taking place on remote network storage over the ethernet port. All your recordings would automatically be stored on redundant RAID arrays located at TiVo (or Google, or your ISP, or some other remote disk space provider) and you would not have to worry about disk crashes. Basically instead of choosing Seagate, Maxtor, or WD, you choose some network storage provider.

Where does this fit in the picture. Does it matter if TiVo builds this product, or Motorola, or CableVision? Should they have to go through the same hoops to get approved? Should they be exposed to the same litigation? Is the process becoming to arbitrary or biased?

Where does one model stop and another start.

What elements make something acceptable or not?
1) recording initiated by the end user
2) recording can only be viewed by the end user
3) storage of data local or remote
4) business model of company selling the product/service

I'm not stating a position here, just pointing out possible criteria that might come up.

Basically is it the end-user's actual usage of the content that defines acceptable use, or does the technical design and/or business model affect it also?

[kido]

the trouble is you have a commercial entity making the recording on your behalf without the permission of the original broadcaster.

if an author was giving away copies of their book at your local bookstore and you asked your local kinko's to run down, grab a copy, and photocopy it on your behalf, it wouldn't be okay because you didn't pick up the book, kinko's did, and the original author never gave them the right to reproduce it and distribute it to you, especially for a fee, even if it is only for you.

[pkscout]

the trouble is you have a commercial entity making the recording on your behalf without the permission of the original broadcaster.

If that's the argument, then that applies to every recording device. The TiVo I have right now is making a recording on my behalf. Therefore a commercial entity is making the recording on my behalf. If I have to physically myself record the zeros and ones then no DVR (or VCR for that matter) is OK. Of course that's what the content providers want.

[sfhub]

So if CableVision had put together an offering where:

1) they sold you disk space on their servers
2) the STB that they give away allowed you to select shows from a guide to record
3) if a show was scheduled to record, it would be broadcast as normal to your STB, the STB would then send the data back to the server for storage

Then where would that design fit?

ie you went to the bookstore and picked up the book for your personal use. You have a lot of kids at home and didn't want the book to get dirty. You FedEx'd the book to a commerical storage locker that will send the book back to you upon your request.

[kido]

If that's the argument, then that applies to every recording device. The TiVo I have right now is making a recording on my behalf. Therefore a commercial entity is making the recording on my behalf. If I have to physically myself record the zeros and ones then no DVR (or VCR for that matter) is OK. Of course that's what the content providers want.

your tivo is a product, not a commercial entity. TiVo, the company, has to enter into agreements with the content providers for the content they provide. In their case, it is with the guide information provider, advertisers, and tivocast partners, etc. they do not have any rights to the broadcast content you record.

to continue my book analogy, TiVo is like a limo service that keeps track of the location and times of these free book giveaways, and makes sure you are there to pick one up. if your limo driver messes up and goes to the wrong location or wrecks the car, they cannot provide you with the book you missed out on.

[kido]

So if CableVision had put together an offering where:

1) they sold you disk space on their servers
2) the STB that they give away allowed you to select shows from a guide to record
3) if a show was scheduled to record, it would be broadcast as normal to your STB, the STB would then send the data back to the server for storage

Then where would that design fit?

ie you went to the bookstore and picked up the book for your personal use. You have a lot of kids at home and didn't want the book to get dirty. You FedEx'd the book to a commerical storage locker that will send the book back to you upon your request.

the only problem i see with this is that the content providers consider the act of sending data a re-broadcast of their content. so far, the courts have agreed with this point of view, even though it is not sent in the original form.

[sfhub]

the only problem i see with this is that the content providers consider the act of sending data a re-broadcast of their content.
So where does MRV (multi-room viewing) fit in?

Where does that leave a product like HDHomeRun?

[pkscout]

your tivo is a product, not a commercial entity. TiVo, the company, has to enter into agreements with the content providers for the content they provide. In their case, it is with the guide information provider, advertisers, and tivocast partners, etc. they do not have any rights to the broadcast content you record.

Nor does the cable company have any rights to the content I record, even if they store it on their server. Your analogies keep falling apart and are arguments are, at best, weak. But it doesn't matter, since a judge decided, once again, that copyright law can be used to stifle innovation.

[kido]

So where does MRV (multi-room viewing) fit in?

Where does that leave a product like HDHomeRun?

content providers currently allow me to watch, record, and duplicate their content for my own personal use. MRV is covered by this; however, restrictions are already present to prevent me from distributing that content to anyone else (media access key, local networking access, etc). HDHomeRun should be something similar because it is rooted in the personal use aspects of viewing content.

i think a lot of this is a matter of scale. if i record a program and watch it. no problem. if i upload it to bittorrent and let 1,000,000 people watch it. problem. if i get paid for letting people watch it. real problem. rs-dvr tech tends more towards the latter, so it gets into trouble with the content providers.

[dt_dc]

BTW, the full decision is now available on-line.

Twentieth Century Fox Film Corporation et al v. CableVision Systems Coporation:
http://www1.nysd.uscourts.gov/cases/show.php?db=special&id=47

Some interesting tidbits in there.

[sfhub]

Must be a typo :)
Each customer would be allotted a specified amount of
storage capacity on one of those hard drives; his or her recorded
programming would be stored in that hard drive space and
available only to that customer. (Id.). Cablevision determines
the amount of memory allotted to each customer; initially,
Cablevision contemplated allocating 80 megabytes of memory to
each customer, but later decided on 160 megabytes.

[sfhub]

It is interesting CableVision agreed *not* to consider "Fair Use" arguments early on in the process. They must have somehow felt their defense was strong enough even without fair use considerations.

So the decision came down to a couple of points (I'm paraphrasing):
1) relationship between CableVision and customer was different than Sony and customer. RS-DVR did not meet some "standalone" criteria. CableVision was too involved in the process thus Sony did not apply. Basically your recordings are tied to CableVision and not portable, so it is really a commercial service and not a standalone device like a VCR.
2) CableVision argued that since nobody sued over STS-DVR (set top storage DVR) RS-DVR is just an extension. The court said that just because nobody has sued over STS-DVR doesn't make it legal and further agreed with the plaintiffs that while STS-DVR and RS-DVR were similar in function they are doing very different things underneath the hoods.
3) CableVision argued the copy center case of a passive commercial copy center not being liable unless the employees were involved in the copying. Plaintiffs felt and court agreed that CableVision had an active role in the copying because they split the stream at the head-end and reformated for storage. Further CableVision would not just house the equipment for copying, but provide storage and provide the content being copied, thus copy center is not an appropriate application.
4) CableVision argued the ISP case of being a passive entity not in control of free flow information. Plaintiffs felt and court agreed that CableVision is not in the same position because they control the information flow and even at some point were considering only offering RS-DVR for some subset of the 170 channels they offer

This was a narrow decision regarding only the issue at hand, copying of programming to RS-DVR's Arroyo servers.

There was also some discussion about "buffer" copies. According to past court cases, buffers, even in RAM, can constitute a "copy" for the purposes of the Copyright Act. Thus CableVision had made multiple "copies", in both the buffer memory and on the Arroyo servers.

There was some comparison to On Command, which I think the courts may have erred. CableVision argued that it is doing a private transmission, not a public transmission.

The Copyright Act provides, in relevant part, that to
"perform" a work "publicly" is:
[T]o transmit or otherwise communicate a
performance or display of the work . . . to
the public, by means of any device or
process, whether the members of the public
capable of receiving the performance or
display receive it in the same place or in
separate places and at the same time or at
different times.

They focused on the highlighted section to define CableVision usage as a public transmission, because it didn't matter if the performance was at the same time or at different times. Instead of focusing on the time-shifting aspect of whether it was a public performance, I think the court should have considered the word "public" as compared to the private transmission in the case of RS-DVR.

Personally I don't feel On Command (basically PPV movies in the hotel) and RS-DVR are really the same thing in this context. It is only comparable in the courts eyes because they focused on the wrong part of the Copyright Act wording.

Anyway, I found interesting, that some of the arguments to shoot down RS-DVR could actually be used to shoot down STS-DVR as well. The set top storage DVR is not really standalone either, because you do not own the box. It is tied to your MSO and it isn't portable to other systems. If you cancel your Comcast subscription, and decide to go OTA, can you take your recording with you? Nope, you need to return the DVR.

The courts did appear to make a distinction about where the "copying" is actually taking place. It is possible that if the RS-DVR actually did all the processing on the STB side, and used a generic storage mechanism that was portable, the same arguments from plaintiffs would not be applicable.

[classicsat]

If that's the argument, then that applies to every recording device. The TiVo I have right now is making a recording on my behalf. Therefore a commercial entity is making the recording on my behalf. If I have to physically myself record the zeros and ones then no DVR (or VCR for that matter) is OK. Of course that's what the content providers want.

The difference is with a client side DVR (such as TiVo or the cable DVR), it is on hardware in your posession, on storage "belonging" to you, and recordings are made by request of you.

What the studios don't want is one copy being recorded on the providers servers and distributed to a number of customers on request, at least without prior agreement to do so.

[sfhub]

IMO there are a lot of slippery slopes and subtle nuances in play here. There is potential for this type of litigation to slip into restricting legitimate use, something we are all accutely aware with Fair Use and DMCA butting heads, where fair use allows some usage, but because of DMCA, implementing that usage would in many situations violate DMCA.

[dt_dc]

IMO there are a lot of slippery slopes and subtle nuances in play here. There is potential for this type of litigation to slip into restricting legitimate use, something we are all accutely aware with Fair Use and DMCA butting heads, where fair use allows some usage, but because of DMCA, implementing that usage would in many situations violate DMCA.Which is exactly (one of the reasons) why I think the plantiffs (and defendants) agreed to take "fair use" and "contributory infringement" and the like off the table (for now).

This particular case was about one thing and one thing only ...

Who "made" the copy ... who "did" the copying ... or rebroadcast the copy (or whatever)? CableVision or "the customer"?

That was (intentionally) all this case was about. Take alot of other things off the table ... and just answer that one question.

[dt_dc]

I did make the copy.And that, ultimately, was what this case was about ... and all it was about ... looking at the decision (linked above).

Who "made" the copy ... who "did" the copying ... or rebroadcast the copy (or whatever)? CableVision or "the customer"?

CableVision waived all "fair use" defenses ... the plantiffs agreed not to raise "contributory infringement" so, the only thing at question was ...

Who made the copy ... or rebroadcast the copy? CableVision or "the customer"? Seems like a pretty simple question, but anyway.

Alot of coparisons to VCRs and DVRs and some other things above go out the window at that point ...I asked the system to record it. The system recorded it. The space I have available to record things was reduced. Nobody else can watch my shows, I can't watch theirs, and I only get space back if I delete something."The system" made the copy. Doesn't answer the question.

But I think you're right ... who "controls" the system. That's who makes the copy.

In a simple case where I walk into Kinkos and want a book copied (indeed, several Kinkos / photocopying cases were cited) ...

Yes, if I use the copier out in the open (owned by Kinkos but available to the public and controlled by me) ... I make the copy.

But I think Fox (effectively) showed that the RS-DVR wasn't that simple. Even if each customer gets their own tuner ... their own hard-drive space ... that still does not make an entirely discreete system entirely under the customer's control.

I walk into Kinko's ... give some guy a book ... he makes a copy on Kinko's photocopier at my request.

Who made the copy?

If "some guy" is a Kinko's employee using the photocopier behind the shelf and follows all Kinkos policies and guidelines ... Kinko's made the copy

If "some guy" is my personal assistant / employee who follows me wherever I go and uses the photocopier available for public use in front of the shelf ... I made the copy

If I was waving a gun around and forced "some guy" to make the copy ... I made the copy

etc.

Doesn't really matter if the copy is made at my request ... it's who actually controls the system that's important. Then again, "ownership" isn't all-important either. Yes, "ownership" (can be) part of control ... but when Kinkos places their copiers out in the open for anyone to use ... they no longer control them.

Now, I'm not going to say that CableVision did exercise the "control" over the system that would mean they were the ones doing the copying. Then again, looking at the decision, I'm not really willing to say they showed that they did not have control and that they had handed everything over to the customer either ...

[MichaelK]

wow- I didn't realize cablevision was allocating a certain amount of space per customer and that each customer had to decide what to put in their little box. I thought cablevision was recording everything without being asked and then letting anyone have at it.

I am pretty amazed at the answer based upon the facts. Is it legal that google archives gigs of files on gmail on people's behalf?

[dt_dc]

I am pretty amazed at the answer based upon the facts. Is it legal that google archives gigs of files on gmail on people's behalf?Thing is ... I think the judge listed every, possible, concievable difference between an "RS-DVR" and a stand-alone DVR and every possible, concievable way that CableVision was excercising "control". Only a couple of those seem (actually) relevant to control over the actual act of copying / transmitting / broadcasting. The rest seems like ... chaff.

Kindof reminds me of the early Napster / Grokster cases ...

If Kinkos is not open 24/7 ... and shuts down for the night ... they excercise control over their copiers ... but not the actual act of copying. Copy places don't have to be open 24/7.

Alot of stuff the judge notes (location, ownership of hardware, etc) reminds me of that. Yes, it's "control" ... but not over the service and not directly over the (questioned) act.

An important distinction between the judge's interpretation of the RS-DVR and gmail:Cablevision has unfettered discretion in selecting the programming that it would make available for recording through the RS-DVR and is the driving force behind the RS-DVR's recording and playback functions. Indeed, at one point Cablevision considered limiting the RS-DVR to just twelve or fifty channels before deciding on including all 170 channels. This situation is a far cry from the ISP's role as a passive conduitWhether that's accruate or not ... I dunno.

But, Google doesn't decide what to store (or not) on gmail. The user does. Yes, Google sets size limits ... and it's on their servers ... at their site ... and if their server went down or blew up you couldn't acces it ... and so on and so forth ... like if Kinko's shuts down for the night.

But what to store and what to copy and so forth ... user in complete control.

Judge is saying that CableVision actually does exercise control over what can and can't be copied ... what can and can't be stored ... and at that point there's an important distinction between the RS-DVR and purely 'passive' system like gmail. The user doesn't quite have all the decisions on what to place in their little box with the RS-DVR. Some decisions ... yes ... but it's not entirely up to them. It's (partially) up to CableVision too ...

[MichaelK]

good explanation. thanks

[AbMagFab]

Sounds to me like they were going in the direction of making all television Video on Demand. Something advertisers certainly would hate...

Whatever... The server-side VoD is so painful to use as it is, I don't see a system like this ever getting off the ground. Super choppy FF/RW ruins the DVR experience.

DVR's need to be in the house.

[sfhub]

Looks like it isn't over. Cablevision is appealing on grounds the court mis-applied copyright law.

http://www.breitbart.com/article.php?id=D8ODPS0G0&show_article=1&cat=0