PVRs: The future of digital home recording Grace Tu Kim Yamada Jocelyn Eillis-Wang Tilman Kispersky May 28, 2002

Genealogy of PVRs

Introduction to the issues surrounding PVRs Before we can talk about ethics we need to get some background and talk about legal issues Copyright Copying and redistribution Fair Use Acceptable uses for TV recordings Contracts Viewer enters into contract with TV producers by watching TV?

Notable Court Cases: Sony v. Universal Sony v. Universal (1985) Issue: Are VCRs legal devices ie. do they infringe on copyright laws? Verdict: VCRs are legal. The Supreme Court ruled that time-shifting is acceptable for personal use. Significance: Act of recording TV shows is not copyright infringement. Decision affected by the fact that VCRs were already socially accepted and prevalent in American households; to recall them would be economically inefficient and unfeasible.

Notable Court Cases: SonicBlue v. Disney (et. al) SonicBlue v. Disney, Paramount (et. al.) 2002 Issue: Was it legal for PVR companies to collect viewing behavior data? Verdict: Yes, L.A. Court ruled that SonicBlue had to track subscriber usage and viewing patterns and deliver the information to TV networks. Significance: Showed government overriding privacy of PVR subscribers in favor of businesses With new technology, we are starting to see trends in possible privacy violations Courts are trying to set new boundaries on what is acceptable and not acceptable regarding digital recording. As we know, legal doesn’t always mean ethical!

Copyright… Article I, Section 8, Clause 8 of the United States Constitution gives Congress the power: "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyright is further defined as the exclusive right of a creator to reproduce, prepare derivative works, distribute, perform, display, sell, lend, or rent their creations.

PVRs and Copyright : The Issues Swapping shows with friends is now possible. Product allows Napster-like services: ReplayTV includes high speed firewire ports for outside archiving to computers and hard drives. TiVo also includes show swapping capabilities via an optional ethernet card. Both allow large amounts of storage space for shows and movies.

Fair Use Defined in the US Constitution, Title 17, Chapter 1, Section 107. Fair use is a legal principle that defines the limitations on exclusive rights for copyright holders. In the courts, fair use has been interpreted to mean a use that: "serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” 1 1 Question: Do PVRs fulfill this fair use objective?

Fair Use : Determining Factors 1.The purpose and character of use: Commercial versus non-educational purposes. 2.The nature of the copyrighted work. Full-length movie or advertisement 3.The amount or portion of the work used in comparison to the whole of the copyrighted work. 4.The effect of the use on the market of the copyrighted work VCRs, for example, don’t cut into the market of television networks

PVRs and Fair Use: The Issues Which applications of PVRs qualify for Fair Use? Use TV show for educational purposes? Share public TV show with friend? Share cable TV show with friend? Record movie and make copies? Is TiVo socially and/or economically beneficial to society? If TiVo sells, a new market is created Waste less time watching TV you don’t want to see? Where is the boundary at which recording television is no longer a fair use?

Products vs. Services under Fair Use Law Question: Are PVRs a service, or a product? Products are protected under fair use law, services are not PVRs include both a service and a product Which should be considered when determining the legality and ethicality of PVRs?

Intermediate Conclusion VCRs and PVRs are not different, PVRs are just an evolution of the same technology. The question is at which point the technology becomes and infringement of copyright laws or violates fair use boundaries. That is where ethical questions are raised!

Contracts: A Turn to Ethics Do TV watchers enter into contracts (either ethically or legally)? Question: By watching TV do viewers have an obligation to watch advertisements (ie. Pay for the service they are receiving)? Is it ethical for advertisers to enforce (or force, in the case of DVD previews) the viewing of commercials and ads for their products. Advertisers have to protect their business Advertisers should not be able to dictate viewing patterns Are advertisements protected under time-shifting laws? Sony v. Universal: time-shifting was OK, but not altering the content Is skipping commercials altering content?

Ethics of PVRs Markets aren’t protected under US law TV networks don’t have the right to determine TV schedules. Why should I watch what producers dictate? Product that enables time- shifting and skipping was paid for. Opening a whole new business niche (web- enabled TiVo could allow TV shopping) Undermining the business of producers “High quality” shows might be forced to migrate to cable Valuable advertising time is paid for and not watched by its intended audiences, and in effect not selling the product. Producers of TV should be able to determine how their creations are viewed

Ethical Issues: Skipping vs. Fast Forwarding ReplayTV and TiVo allow for commercial skipping TiVo allows for fast-forwarding ReplayTV allows for instant one-button skip Is fast-forwarding better than skipping? TV executives have decried skipping but have not spoken out against fast-forwarding Fast-forwarding allows filtering of commercials, while skipping does not.

Revisiting Contract Violation Violation of contract between viewer and TV network? Targeted advertisements Ads don’t pertain to me, then it is ethical to filter them out I can choose which ads interest me and watch only those Past threats to advertisement-funded TV have not removed the incentive to watch and create free TV VCRs PVR owners are able to “violate” contracts while regular viewers are forced to watch ads to fund TV

Redistribution of Recorded Material Your subscription to the TiVO/ReplayTV service gives you the right to record as you see fit. Making copies for myself to watch later, even in another format, doesn’t violate copyright laws After paying for something I should be able to lend it to my friends If you send TV signals to my house, you shouldn’t be able to determine how I watch them Not ethical to make copies of copyrighted material ie. It is unethical to violate copyright law! Too easy to abuse the ability to send material over the Internet Creativity of TV networks and advertisers would be compromised

Conclusions Copyright Becoming more difficult for producers to control copying Public acceptance of the ability to make copies of media Fair Use Likely that PVRs will be deemed fair as VCRs were Similarly to VCRs this decision might be affected by the number of PVRs in use Contracts Technology continually giving users ability to redefine what they are obliged to do

Conclusions PVRs likely to be declared officially legal TV networks will have to adjust broadcasting accordingly Ethics Ethical issues are still up for debate!

The Future of Commercials Increases in product placement in shows/movies. The “commercial ticker” Targeted audiences More effective advertising based on collected information from users. Better commercials -- more entertaining. Ex. BMW FilmsBMW Films Will commercials fade out? NO!

Bibliography 1.Pierre N. Leval, “Toward a Fair Use Standard”, 103 Harv. L. Rev. 1105, 1110 (1990). 2.Loren, Lydia Pallas. “Redefining the market failure approach to fair use in an era of copyright permission systems”, J. Intel. Prop. Volume 5 Fall 1997, No. 1 ( m) 3.The Constitution of the United States of America