Now that Cablevision Systems Corp. (NYSE: CVC) has appealed a judge's decision that its "Remote Storage-Digital Video Recorder" (RS-DVR) infringes on studio and programmer copyrights, it's clear now more than ever that the New York-based MSO is playing for keeps. (See Net DVR Still Appealing for Cablevision.)
The fight is over whether there are separate ownership rules when content is stored on a service provider's storage system delivering the content through a networked DVR, rather than the user's own equipment. Cablevision once again will take the old Sony Betamax decision to task, contending that the RS-DVR should be protected in the same way that an in-home DVR is today. Cablevision argues that its RS-DVR is no different than an in-home DVR, because if 1,000 customers tap the RS-DVR to record a specific program, the system is designed to make 1,000 individual copies. Further, each copy is accessible only to the customer who made the original recording request.
If Cablevision's appeal is successful, it could serve to define how other cable operators move ahead with their own network-DVR services. Likewise, a successful appeal could be a boon for more than a handful of vendors that are linked to Cablevision's RS-DVR project.
Privately, some observers believed Cablevision's motive with the RS-DVR was to get programmers to the negotiation table to carve out network DVR deals -- akin to the axiom that it is easier to ask forgiveness than it is to obtain permission.
But that argument becomes a tougher sell when one considers the technical groundwork Cablevision had already completed on the project. Much of that detail is copiously outlined in a 38-page decision handed down on March 22 by U.S. District Court Judge Denny Chin, who ruled that Cablevision's RS-DVR would violate the copyrights of a raft of plaintiffs, including Disney, Paramount Pictures, Twentieth Century Fox, CNN, and NBC.
A look through the decision clearly indicates that Cablevision had taken the necessary technical steps to deploy the RS-DVR, though it stopped short of doing so, agreeing to mothball the project pending the judge's decision.
Now that this innovative and controversial service appears to be back in play, here, according to the judge's decision, is a brief synopsis of how the platform would work and the roles some vendors played in its creation.
Getting started
The service originates at the "BarcoNet" (Scientific Atlanta bought BarcoNet in late 2001), a closed circuit network that receives Cablevision's linear programming. That programming, called the aggregated programming stream (APS), comprises packets of data, with each packet tagged with a program identifier (PID).
The system then splits the APS into two streams, the second of which is piped to the BigBand Networks Inc. (Nasdaq: BBND) Broadband Multimedia Router (BMR). There, the BMR "clamps" the stream, converting the variable bit rate (VBR) stream into a constant bit rate (CBR) stream. (Note: the CableLabs CBR spec for standard-definition VOD streams is 3.75 Mbit/s; the CableLabs "safe harbor" bit rate for HD-VOD is 15 Mbit/s.)
During the clamping process, portions of the program are sent to the BMR's buffer memory. The BMR then encapsulates the information by converting the APS into a number of single program streams and placing packets in those streams into larger packets called User Datagram Protocol (UDP) packets. Each UDP packet is assigned a port number that identifies the TV channel to which it belongs.
First, MSOs already have programming agreements for content redistribution with the TV networks, whereas there is no relationship between ISPs and a web content provider like LR. Whether said cable programming agreement allows for recording is a far different matter, no doubt. However, a distribution relationship does exist.
Cablevision was sued by it's suppliers so whatever distribution agreement is in place doesn't cover MSO based DVRs. Cablevision lost the suit so they don't have the rights as things stand today.
Second, the DVR in the home is now provided by the MSO. It's not a consumer purchased and managed device. Therefore, there is already a precedent for the MSO selling a video recording service to customers on hardware it owns.
Precedent doesn't mean they aren't infringing on copyrights. Has there been case law saying that MSO selling a DVR service is legal? If not, and the didn't negotiate rights to do this, the media companies may have them by the balls in the long run. Lots of infringement means large fines which wasn't the case with Cablevision's recent court loss - i.e. they only talked about the service and never implemented it - no fines.
BTW, I'm not "Pro MSO" on this one, per se. I think it's a cool app, and as a consumer, would love to see it. Who needs another hot, spinning hard drive in their home?
Agreed. And I also think the technology which eventually be deployed though probably on the media companies terms.
A structurally separated network would act as a catalyst for many of these types of "cool" things with the caveat somehow investment capital towards the common infrastructure must be given an ROI. Otherwise we may be waiting around for decades while the media companies and the cable companies fight it out.
So while technological progress marches forward sometimes social progress gets held back, or even worse, reverses itself and repeats the mistakes of history. Maybe it's due to the limited lifespans of humans and how difficult it is to pass on the lessons from generation to generation? Don't really know but it seems to me that this current generation hasn't really proven itself in terms of social progress.
Cann't speak for the lawyers at CMP, of course. :)
Two ways in which the analogy may not fully apply, though.
First, MSOs already have programming agreements for content redistribution with the TV networks, whereas there is no relationship between ISPs and a web content provider like LR. Whether said cable programming agreement allows for recording is a far different matter, no doubt. However, a distribution relationship does exist.
Second, the DVR in the home is now provided by the MSO. It's not a consumer purchased and managed device. Therefore, there is already a precedent for the MSO selling a video recording service to customers on hardware it owns.
To your point about ad zapping, clearly this is why Time Warner Cable has disabled the feature with its Start Over netDVR-lite service.
BTW, I'm not "Pro MSO" on this one, per se. I think it's a cool app, and as a consumer, would love to see it. Who needs another hot, spinning hard drive in their home?
What would LR do if they found out that a bunch of ISPs purchasing devices which would zap all their ads on their web site and either replace them with their own or get rid of them completely? Before the ISPs deployed such a device they seeded their userbase with a consumer purchased residential gateway that did the same thing. Then they argue if consumers can zap the ads by purchasing a device that does it in their homes cannot we, the ISPs, rent such a centralized device to our users to do the same thing? No reader really wants all these ads on the LR pages anyway so doing such a thing would be serving the market demands.
So is about every distribution network one can fathom. (Note: digital cable is stat muxed so is telco's attempt at next gen networks with ATM.)
A progressive network design will likely be based on the best stat mux technologies available. They will also support variable bit rates of streams. It doesn't take as much bw to support HDTV for a talking head (news channel) as it does a sporting event like the superbowl. Designing a system that all streams must be preordained by the network operators at specific bit rates, etc. is misguided in my opinion.
PS. The internet is less about technology choices and more about policy choices. If the PSTN didn't have the rules of common carriage today's internet wouldn't exist as we know it.
What's the difference whether a consumer records and stores purchased cable TV programming on a hard drive they rent from their cable provider that's located in a set-top box in their home or a server that's located in the MSO's data center? In either case, the subscriber is simply archiving video content they purchased from the MSO on a hard disk provided by the MSO.
mymp3.com took a similar position, i.e. they were merely archiving music that was already purchased by the consumer. Consumer's had to prove the purchased the CD before they could access it.
While I'm not trained as a lawyer I'd suggest the issue a judge would consider isn't the above comparison but rather whether MSO based recording and time shifting is considered fair use or not.
http://en.wikipedia.org/wiki/Fair_use
"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work."
Folks working in the broadcast industry will tell you that the 30 second television ad is copyrighted along with the content. The market price of that ad is based on time of broadcast (as well as region and other things). MSOs (or TV affilliates for that matter) shifting those ads will have a huge effect on the market value of the content. They violate copyright and broadcasting rights if they time shift those ads. If this weren't the case every local TV affilliate in the country would shift ads in a manner that maximized their interests over those of the copyright holder.
Similar for market windows for HBO like content which has no ads. Also, broadcasting rights covers things like syndication. (Another thing MSO based recording would trample all over.)
These are just some obvious issues. I'd suspect any thorough and complete critical review would reveal that MSO based recording is in no way fair use and them doing so without licensing the rights beforehand may end them up in bankruptcy court, a la mp3.com.
Many times techno geeks miss the pertinent issues like does Cablevision have the rights to copy, shift, and rebroadcast content which isn't theirs? I'd suspect not.
This is clearly the issue in play. However, the dynamics aren't identical to mp3.com.
To hypothetically advocate for Cablevision....
What's the difference whether a consumer records and stores purchased cable TV programming on a hard drive they rent from their cable provider that's located in a set-top box in their home or a server that's located in the MSO's data center? In either case, the subscriber is simply archiving video content they purchased from the MSO on a hard disk provided by the MSO.
The internet is built on stat muxing principles. If Youtube were to serve 10 million SDTV quality streams (assuming 10% active users out of 100M users)they would require 37.5 Tbps. Is there such a pipe available to any content provider? Don't give me BS about distributed content caching etc, for that can solve the problem by only one order of magnitude. For ture scaling of simultaneous video you require reaching down all the way to the edge. The edge under the control of the AT&Ts, VZ, Comcasts of the world. In the end the edge provider has the final say on how many bits can pass without stat muxing and this is how they will win over the so called Youtubes of the world. In the end it all boils down to elementary mathematics.
The blogs and comments are the opinions only of the writers and do not reflect the views of Light Reading. They are no substitute for your own research and should not be relied upon for trading or any other purpose.
To save this item to your list of favorite Light Reading content so you can find it later in your Profile page, click the "Save It" button next to the item.
If you found this interesting or useful, please use the links to the services below to share it with other readers. You will need a free account with each service to share an item via that service.
Digg
Del.icio.us
Reddit
