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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Copyright Alliance Begs Supreme Court To Make Remote DVRs Illegal

Copyright Alliance Begs Supreme Court To Make Remote DVRs Illegal-- great post by Mike Masnick at TechDirt. He notes there that

"back in August there was an extremely important Appeals Court ruling that noted that Cablevision's remote DVR setup did not infringe on copyrights. The ruling pointed out the rather obvious troubles that would occur if we interpreted copyright laws the way copyright holders wanted to. It's clear that DVRs, like TiVo, are perfectly legal in the home. Time shifting shows has been found, quite clearly, to be legal. Cablevision's remote DVR is effectively the same exact thing. The only difference is that the DVR is stored at Cablevision data center, rather than at someone's home. The ruling, quite clearly, demonstrated how twisted copyright law has become, as it is patched up each time some new technology comes along.

"The importance of this ruling cannot be understated, however, as it will enable many important online services that will be tremendously useful. Needless to say, copyright maximalists in the entertainment industry don't like that."

... The district court found Cablevision analogous to a copy shop that makes course packs for college professors. In the leading case involving such a shop, for example, "[t]he professor [gave] the copyshop the materials of which the coursepack [was] to be made up, and the copyshop [did] the rest." ... There did not appear to be any serious dispute in that case that the shop itself was directly liable for reproducing copyrighted works. The district court here found that Cablevision, like this copy shop, would be "doing" the copying, albeit "at the customer's behest."

"But because volitional conduct is an important element of direct liability, the district court's analogy is flawed. In determining who actually "makes" a copy, a significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

Now analysis of causation is important--I've written on this before in my article Causation and Aggression. In this piece, my co-author Pat Tinsley and I note the importance of the Austrian concept of "praxeology"--the science of human action--to provide a framework to properly classify actions, to determine whether an action is aggression (and what type and degree), who is responsible for actions, etc. For example, this view of action helps to clear up the confusion among libertarians about whether, and why, Presidents and mob bosses are indeed responsible for the actions of their underlings.

Now, in my blogposts Causation, Spam, and Worms, Spam, Spyware, Spiders and Trespass, Spas as a Nuuisance, and Spammers face "mail fraud" charges and 20 years in the federal pen!, I apply this basic understanding of causation to argue that "spam and related activities can in principle be a crime--a type of trespass--since it is a means by which the spammer uninvitedly uses another's property". This reasoning is similar to that employed by the court in the DVR case, since they are saying the customer is the one actually "controlling" (via electronic signals etc.) the equipment of Cablevision (albeit with Cablevision's consent, unlike in the spam case).

That said, the decision in the DVR case reveals how irrational copyright law is. You could analogize Cablevision to the photocopy shop; or to the use of one's own personal DVR/VCR.

The problem is that over time technology will stretch these analogies to the breaking point. The court, for example, emphasizes that the customer can instruct the RS-DVR system to record a TV show, and if he does, then the transitory data in the buffer is "move[d] from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer." Thus, if no customer requests a given show be recorded, the information in the "primary ingest buffer" is lost--it is overwritten every 01 seconds (per channel). For this reason, "A customer cannot, however, record the earlier portion of a program once it has begun."

Thus, the system is set up so that it mimics the operation of a DVR. Presumably if 25,000 customers all want to record "Lost," then 25,000 separate copies of Lost are made on Cablevision's "Arroyo" server--one for each customer. And presumably there is a limit on the number of channels one can record simultaneously, and the total amount of hours of recorded material that can be maintained--similar to the way a personal DVR works--one's own DVR has only 20 or so hours of space, and can only record two channels at a time. But in theory a DVR could have 100 tuners, and terabytes of space. So in theory, Cablevision could adjust the RS-DVR system to permit users to simply give a blanket instruction on day 1: "Please record all channels [or the following 50 channels] at all times, and maintain them for a trailing 1 year period." Thus, the buffers for the various channels are always recording for each user basically everything that is transmitted. It's like an always-on DVR, with all (or dozens of) channels. And why does Cablevision need to waste space by making 50,000 copies of Lost? Why not just keep one copy around, so long as at least one user still "has" "a copy" of it in "his" RS-DVR "space," and serve up from that one copy? What's the difference, really? The difference is that at this point the RS-DVR would not look as much like a DVR, and the courts would have a harder time analogizing to one (unless, in the future, DVRs in the home get petabytes of capacity and dozens of tuners, which is technically feasible). So in the meantime, expect Cablevision to employ artificial limits and inefficiently use its equipment just to get around the arbitrary contours of copyright law.


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