How important is the decision to lift the injunction against Cablevision's central storage-based DVR system? Underscore Marketing's president explores the issue.
A month ago, for the second time in recent memory, an error message came up on my TV screen. Something about a hard drive error. Instantly, every "Family Guy" and "Battlestar Galactica" episode I had recorded disappeared, along with every episode my wife taped of that silly show about that couple being driven insane by their eight kids (I think it's called "Jon and Kate's Eight is Enough").
It was enough to make me want to throw my remote control through the screen. Thankfully, most of the shows we lost had been reproduced on the second DVR we have upstairs in our bedroom.
I consider myself tech savvy, and I actually prefer independently functioning DVRs that store programs on hard drives located in my house to a centrally-located DVR that allow me to share recorded programs on several TVs and store programs off-site with the cable company.
The logic is that if I have physical control over the data, the likelihood that my cable company (Cablevision) will mess with my expectations regarding the service is diminished. For instance, it's less likely they'll move from their current "all you can eat" model to a per-recording model, or that they'll one day decide to make commercials unskippable.
However, I bet that given the choice, most cable customers would prefer off-site storage of recorded programs and the ability to watch recorded programs on any of their TVs. I have a hunch that these benefits would outweigh the downside for most customers. A program gets deleted? You can now blame the cable company instead of blaming yourself or your box. Kids want to watch "Yo Gabba Gabba" on the big TV? Fine. You can watch your recording of "Lost" on the smaller upstairs TV and not have to worry about which TV stored the program.
Cablevision's central storage model was blocked last year by an injunction, which is probably why I still have cable boxes with failure-prone hard drives to begin with. Content providers claimed that central storage and retrieval constituted an unlawful public performance of copyrighted works, and that decision stood until earlier this week, when the injunction was lifted and Cablevision won on appeal.
According to Ars Technica, the technical details of how the system works played a significant role in the overturning of the decision. I won't bore you with the details. My main takeaways, though, were:
- a system that stores copyrighted content centrally, and replays it to the household that recorded it, isn't necessarily copyright-infringing in and of itself. And,
- any further legal challenges to such a model will need to be based on the notion that such technology enables infringement.
It reminds me of the crossroads reached in the P2P cases, where legal questions focused on the notion of whether P2P technology enabled legitimate sharing of information, or whether it just enabled piracy. If we get past the question of whether the technology enables infringement or not, and the burden of proof of infringement falls on copyright owners on a case-by-case basis, we're looking at taking a big step forward toward true video-on-demand.
That is, rather than my current VOD offering, which consists of pay-per-view movies or paying incremental fees to watch HBO content on demand, I could record programs at home and play them back anywhere, at any time.
"Big deal," say my readers, who already have a Slingbox. "We’ve already got this."
But the mainstream market, consisting largely of folks who don't even know what a Slingbox is, and couldn't get one to work properly even if they did, doesn't have it. And when they do, we're talking about insane shifts in TV consumption habits. Just within my own household, I can see how my primetime TV is going to be the polar opposite of my wife's. At 8 p.m., she'll be in the living room watching John and Kate chase their eight kids through a mini-mall, and I'll be watching Starbuck blowing up Cylons on my mobile phone during my evening train commute.
The way I see it, the content providers can acknowledge the inevitable now. They can try to salvage a revenue model from this mess, or they can continue to try and stave it off and face a game-ending threat to their business model in a few years.
Tom Hespos is the president of Underscore Marketing and blogs at Hespos.com.