Steal This Show!
"[Skipping ads with a PVR or VCR] is theft. Your
contract with the network when you get the show is you're going to watch the spots.
Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a
commercial . . . you're actually stealing the programming."
This beautiful piece of logic was bruited about in early
May as part of the Big Media blitz against ReplayTV's model 4000 personal video recorder,
which would not only allow consumers to watch recorded programs without the ads, but also
to send them to friends via the Internet without ads. Well, you can understand why
this gave all kinds of people in TV the fantods.
So, despite the fact that only about 5000 of that model PVR
were sold, a (ahem) mob of media giants -- including Viacom, Inc.; Walt Disney Co.
(ABC Television's owner); and General Electric Co. (NBC's owner) -- sued SONICblue
(ReplayTV's parent company) over copyright infringement. The plaintiffs claimed that use
of PVRs like the 4000 encouraged copyright violations.
You probably thought this was all settled in the classic
Universal v. Sony case, which established that it is legal to timeshift copyrighted
programming with VCRs. It was. In Universal v. Sony, the Supreme Court was
extremely careful to balance the public's interest in making copies at home against
the studios' rights to total control over their copyrighted material. The court found that
the US Constitution authorized copyrights "to promote the Progress of Science and the
useful Arts." In other words, restrictions should never sacrifice consumers'
interests or innovation simply for the benefit of copyright owners.
In order to protect these court-mandated fair-use rights,
the Electronic Frontier Foundation (EFF) filed a suit against the entertainment industry
in early June, seeking to establish the legitimacy of the consumer's right to record
broadcast programming for personal use. I'm looking forward to following this one.
Let's put legality to the side for a minute. I'm fascinated
by this idea that by watching publicly broadcast programming, we citizens are entering
into a contract with the broadcaster to behave as it would like.
Let's compare this to other forms of media, shall we? I'm
free to listen to the radio and switch stations during commercials or shows I'm not
interested in. I'm even free to read magazines after tearing out all the smelly perfume
ads -- and even then, I am "allowed" to maintain control over my eyes and ignore
any ads not sufficiently compelling to demand my attention. And when I surf the Internet,
I'm even free to employ Norton's new ad-blocking utility. So apparently, it's only
television that has this "contractual" imperative that I pay attention to
advertising.
But it gets better! Check out this quote from our TV
insider: "I guess there's a certain amount of tolerance for going to the bathroom.
But if you formalize it and you create a device that skips certain second increments,
you've . . . just [made] it easy for someone to skip a commercial." Don't you just
love the sheer arrogance of it: "I guess there's a certain amount of tolerance for
going to the bathroom . . ." How generous of the networks to acknowledge that we
consumers are only human after all. I'll never be able to micturate during a TV show again
without wondering whether or not I'm abusing the tolerance of the networks.
Wait, it gets even more delicious. "Someone's going to
have to recognize that once we've entered the digital world people can send out perfect
copies without any costs to large numbers of people in many different territories of the
world [and] can dramatically disrupt the system that we've built that allows us to produce
and distribute content and . . . make a profit in the investment, and that has to be
addressed."
You're probably asking yourself, just who is this idiot?
He's Jamie Kellner, chairman and CEO of Turner Broadcasting System (an AOL/Time Warner
subsidiary) and his statements quoted here are taken from an interview in Inside on
the future of television. What we're witnessing here, I suspect, is an industry in
turmoil. The record industry is frantically casting about for a scapegoat for its
problems. The Hollywood studios have got their knickers in a twist over the potential for
digital freeloading. Is it any wonder that broadcasters are quaking in their boots about
being the next industry to undergo a digital auto-da-fé?
As much as the injured parties may hate to hear this, the
interesting thing about the free market system is that there's no obligation built into it
to keep the rich and powerful rich and powerful. That's the way it usually works out, of
course, but no matter how deserving the r&p feel, there really is no
"contract" that ensures it.
Too bad.
Let's look back at how Sony v. Universal turned out,
shall we? Hollywood, Inc. maintained that VCRs would doom their profits and ability to
deliver "quality entertainment" to the public. In 1982, industry pit-bull Jack
Valenti actually compared VCRs to the Boston Strangler and warned, "the VCR is
stripping ... markets clean of our profit potential." Sounds pretty serious, doesn't
it?
Well, in 2001, videocassette rental and sales totaled $11
billion, which actually eclipsed box-office receipts by over $2 billion. In other words,
the technological advance that threatened Hollywood's profit potential actually doubled
the market for its products.
I'm pretty sure that the film industry views our current
situation as a crisis -- ditto for the record and TV industries. I'm sure the dinosaurs
thought the same thing when that comet hit Chicxulub back in the Cretaceous-Tertiary era.
It was -- for them. For us mammals, it was just the opportunity we were waiting for. As
catastrophic as the current situation might be for companies incapable of adapting, it
offers immense opportunities for savvy entrepreneurs who can anticipate the innovations
and features consumers want. That's called progress.
What I find fascinating is that Mr. Kellner, a cable
network executive, seems unaware that there's already a model for the sort of
programming he finds so unthinkable. It's, ummm, on cable and it's called premium
TV. Now, as head of TBS (the channel that, as teevee.org's Lisa Schmeiser says, "people skip over on their way
to FX, USA, and TNN"), Kellner may be unfamiliar with the concept. But, as the
titular head of Turner Network Television (TNT), The WB Network, Cartoon Network, Turner
Classic Movies, Turner South, Boomerang, CNN News Group (CNN, CNN Headline News, CNNfn,
CNNRadio, CNN Newsource, CNN Airport Network and CNN.com) and about seven worldwide
variations on the theme, you'd think that he'd at least have heard of the idea, even if
he'd never actually encountered it. Apparently not.
Judging from his own words, the man doesn't even know that,
as cable subscribers, we already pay to watch the crap he's responsible for putting
on the, excuse the expression, air. He can’t be aware that even bad cable
isn't free or he'd have never said, "There's no Santa Claus. If you don't watch the
commercials, someone's going to have to pay for television and it's going to be you."
Pardon me for pointing this out, Mr. Kellner, but I suspect
this latest paradigm shift is going to cost you a lot more than it's going to
cost me. That's the way it works in the marketplace. TBS doesn't have anything I'm willing
to pay for. I can do without any of your programming, but you've already sold my
eyeballs to your sponsors (that's why you give your programming away to the carriers --
that way you can "guarantee" a huge audience to the people you're selling ads
to).
If I can't skip ads with my TiVo (and I do), I'll
gladly forego watching TBS' programming the way I don't eat fast food, pay for Internet
porn, or own a car I can't use. For that matter, I don't pay for HBO, although I will
definitely subscribe when it broadcasts The Sopranos next fall. See, I'm not
unreasonable -- I'll pay for programming I feel compelled to watch.
That's the real contract between us. I'm the
consumer and I have what you want. All you get is the chance to convince me to pay you for
something I value. And if you can't figure out how to make me do that, Mr. Kellner -- or
Mr. Record Executive or Hollywood Mogul -- then you're the wrong man for your job.
Things are changing, Mr. Kellner, and if you can't figure
out how to profit from it, then make way for the man who can.
...Wes Phillips
wes@onhometheater.com
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