“Someone Has to Pay for TV. But Who? And How?” is the title of a good column in the Sunday NYTimes by Randall Stross about the changing model of television programming and advertising in the age of digital-video recorders (DVRs) and viewer propensity to skip ads. Stross says:
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.
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.
Since the dawn of the videocassette recorder designed for home use in the mid-1970’s, we have copied copyrighted television programs with impunity, enjoying the "fair use" exemption granted for this, a private, noncommercial purpose. The legality of home copying based on "fair use" was enshrined in a Supreme Court decision, Sony Corporation v. Universal City Studios Inc., handed down in 1984.
That decision addressed copying with a Betamax videocassette recorder, and it remains the key decision that protects copying with DVR’s today. But the more one looks at how the court arrived at its decision in the Sony case — a 5-to-4 squeaker — and at how recording technology has changed and new business opportunities have opened since then, the more difficult it is to see how a majority of the court could possibly uphold the same position today.
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.
So let’s assume a chaos scenario, where courts actually rule that DVRs violate the law. Not only would democratized access to ad-skipping technologies and motivated hackers completely negate any attempt to cease the practice, but television programmers would find themselves amidst a consumer backlash (or, more accurately, a shit storm) far worse than Philips, when word spread about its U.S. patent filing on a television technology to disallow ad-skipping. Of course, that’s exactly why Ross began his column with a reference to that blogger backlash, which occurred just a few weeks ago. The bottom line: the 30-second ad-model is broken, so programmers and advertisers need to figure out alternatives (btw, I’m all for them making money and engaging audiences).
In ongoing celebration of TiVo – including its interface innovation, benefits to consumers and pressure it puts on advertisers and programmers to get with the program – I proudly wave the flag of the advertising revolution: that is, instructions on how to program your TiVo remote’s skip-to-hash button to skip in 30-second increments.
TiVo 30-Second Skip Hack
- Grip your TiVo remote.
- Play any recorded program.
- On your TiVo remote, press the following buttons in this sequence:
- 0 (zero, not letter o)
(adapted from Bigmarv.net)