Has TiVo Forsaken Us?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth David Schoen <schoen () loyalty org>
Date: November 14, 2004 12:21:08 PM EST
To: David Farber <dave () farber net>
Subject: Re: [IP] Has TiVo Forsaken Us?

David Farber writes:

> Begin forwarded message:
>
> From: Monty Solomon <monty () roscom com>
> Date: November 13, 2004 12:53:05 AM EST
> To: undisclosed-recipient:;
> Subject: Has TiVo Forsaken Us?
>
> Has TiVo Forsaken Us?
>
> Wired Magazine
> November 2004
>
> Buy a TiVo lately? Sometime in the next few months, your machine will
> quietly download a patch that makes it respond to a new copy
> protection scheme from software maker Macrovision. The app puts
> restrictions on how long your DVR can save certain kinds of shows -
> so far, just pay-per-view and video-on-demand programs. It's the
> first time your TiVo won't let you watch whatever you want, whenever
> you want. We asked TiVo general counsel Matthew Zinn why he thinks
> Hollywood will settle for an inch when it can take a mile.
>
> ...
>
> http://www.wired.com/wired/archive/12.11/view.html?pg=3

Until about a year ago there was a nice bright-line rule between
unencrypted stuff like free-to-air broadcasting and basic-tier
cable: open standards and no license required to receive them,
therefore no legal restrictions on what you can do with them.  (You
are still bound by copyright law, but the legal default for
unencrypted signals has been that technology is not required to
enforce anyone's notion of copyright.)

Some programming is encrypted on cable and on satellites.  Cable
and satellite companies nowadays supply proprietary set-top boxes
and/or smart cards to let you receive these -- a quintessential
"access control" used to make sure you pay for certain services.
If you don't pay, your access is turned off.  (There are many
different key management approaches to this.)  In the 1996
Telecommunications Act, Congress said that at least the cable
companies ought to standardize their smart card interface format
to promote competition over equipment by allowing third parties
to produce set-top boxes (or to allow people to produce TVs with
integrated "navigation" and a smart card slot).  This policy goal
is called "commercial availability of navigation devices".  But
the cable industry people went off and created a scheme under the
Telecommunications Act framework that would result in _re-encrypting_
the signals within your house.  In other words, the smart cards
and set-top boxes would decrypt the programming as it came into
your house and verify that you were authorized to receive it.  But
then they would encrypt it again in order to enforce _copyright
holder_ policies about what you could do with it after you had
received it.  That re-encryption makes the new generation of pay
TV services (after you've paid for them) different from free TV
services because the pay TV services can be subject to additional
controls after the point of lawful reception.

The FCC was asked to ban this re-encryption -- in a sense, to limit
the use of encryption under the 1996 Act to making sure that you
initially pay for pay TV, not to controlling what you do with it
afterward.  In a decision in 2000, the Commission declined to do
this (it accepted the cable industry's rules with re-encryption in
them as a valid implementation of the "commercial availability of
navigation devices").

This decision was unfortunate in its implications because it vastly
increased the potential leverage that movie studios would have over
technology companies.  If the FCC had forbidden re-encryption of
pay TV programming, companies like TiVo would not need to negotiate
with movie studios (or broadcast groups) in order to get lawful access
to pay TV.  That would be a more aggressively pro-competitive policy
than the policy that the FCC ultimately found Congress intended to
adopt.  Instead, companies like TiVo _do_ have to negotiation for
lawful access to encrypted pay TV.

And TiVo has chosen to do exactly that.  While they started out with
a product that received only unencrypted signals, they have had a lot
of success in grooming themselves for negotiation with, and in
actually negotiating with, copyright and broadcast interests.  The
result is that TiVo can access lots of encrypted pay TV services, some
pay TV providers have become commercial partners of TiVo's, and TiVos
can legally record a lot more TV content.

Of course, that negotiation has come at a corresponding cost: TiVo
implements digital rights management, takes steps (to date not very
strong steps) to control reverse engineering and aftermark
modifications, and generally implements a lot of restrictions on
recorded programming.  TiVo often omits potentially controversial
features or implements them in more restrictive ways than some of
its engineers might have chosen.  And in order to keep other industries
happy, TiVo applies many of these restrictions _to unencrypted TV
programming_, where it is not at all legally required to do so.

TiVo customers are obviously happy enough with this strategy that they
keep buying TiVos in large numbers, although there is a devoted
community of "TiVo hacking" enthusiasts who learn how to add
functionality to their TiVos -- and they have a very complicated
relationship with these restrictions.

The upshot of all this is that, when you buy a TiVo, it is missing
features _with respect to unencrypted TV_ that it could have had under
the law.  And, as the present article shows, TiVo has the ability to
disable more features if its commercial partners ask (or demand under
the terms of a contract) that they be removed.  It can even do this
via field upgrades.

The FCC seems unlikely to reverse its 2000 decision on the commercial
availability of navigation devices -- even though such actions would
give companies like TiVo a much better position, and perhaps a much
more functional product, by removing some of the legal incentives to
appease so many other industries.  Instead, the FCC has actually
headed in the direction of giving movie studios _more_ legal control
over the technology people use to receive television.  (More on this
in a moment.)

There is an alternative -- if you only want to receive unencrypted
TV (free-to-air terrestrial broadcasting and basic-tier cable in
the U.S., and possibly these plus certain types of pay TV in Europe).
You can use a personal computer as a PVR by putting one or more TV
cards inside.  Then you can run software that turns the PC into a PVR.
One of the most impressive programs along these lines is an open
source package called MythTV

http://www.mythtv.org/

which has already implemented functionality competitive with TiVo's
PVR functionality, plus features that TiVo won't touch.  As I described
it the other day:

   IR remote control, program guide data, scheduled and recurring
   recordings, WWW interface, themes and plugins, network streaming,
   multiple tuners (as many as you can fit in a PC) and concurrent
   recording of multiple channels using available tuners, NTSC/ATSC,
   background transcoding, previews and picture-in-picture, ripping
   and archiving, commercial detection, and the traditional abilities
   to rewind and pause live TV.

   Of course, all recordings are unencrypted and can be exported,
   streamed, or burned to removable media.  And the entire project is
   100% open source and actively encourages hacking and third-party
   development.

There is a problem to which I alluded earlier.  The major movie
studios have persuaded the FCC to change the rules for unencrypted
digital television to apply DRM there, in the "broadcast flag" or
"digital broadcast content protection" proceeding.  (That's why I
say that the FCC is unlikely to change the DRM requirement for
cable TV!)  The result is that the equipment that makes a program
like MythTV work with U.S. digital television will be illegal to
manufacture here from July 1, 2005.  If you want to use something
like MythTV for digital TV in the future, your best bet is to buy
the equipment before then.  MythTV works well with the pcHDTV
HD-3000 card, which is finally shipping:

http://www.pchdtv.com/

There is also a MacOS X package (not open source although I'm hoping
because I hear there have been interesting discussions) with an
external tuner -- that will also be illegal to manufacture from
July 1, 2005 -- with an interface described as more polished than
MythTV's although less PVR-like.  Like MythTV, it records to
unencrypted files on your hard drive.

http://www.elgato.com/

(They also have a comprehensive line of products for the European
market, which has its own set of looming legal problems.  It may be
just as advisable for Europeans to buy such equipment in a hurry as
it is for Americans to do so.)

For a bit more advocacy and background information on the broadcast
flag rule and using personal computers as PVRs, see

http://www.eff.org/broadcastflag/

I would not get so worked up about any one action that TiVo takes.
We know their strategy, and it involves co-operating with movie
studios to impose restrictions on end users.  The reasons why they
do this are not mysterious.  If you want to criticize TiVo -- and
that's fine with me! -- the right place to start is much earlier in
the company's history.

But if you actually want to opt out of the DRM game, it seems to
me that the thing to do is to spread the remaining unrestricted
technologies as far and wide as possible while they're still legal.

People who got excited about "convergence" last decade often didn't
mention DRM (and sometimes weren't even aware of it).  Today MythTV
describes itself as "the ultimate convergence box" -- like several
other products, it brings TV into the PC environment _on the PC's
terms_.  Programmable, extensible, subject to third-party innovation.
I have seen this running and found it simply incredible.  But because
of the legal and commercial incentives, this isn't where _most_ of
the industry is going today.

I've often thought of writing an essay called "converging up,
converging down?" about the ambiguity of the "convergence" ideal.
PCs and consumer electronics (CE) devices have very different
characteristics -- beyond just the technical differences, veering
into cultural differences -- even though today they are usually
made out of the same chips.  Among other things, PCs in the past
were friendlier to user innovation and third party innovation; you
could teach them to do more.  CE devices in the past were much more
single-function and fixed-function, and upgrades (if available)
typically had to be provided by the manufacturer.  Ultimately PCs
were much more under end user control and CE devices much more
under the manuacturer's control.  Movie studios have appreciated
this distinction; they have better, older, and closer relationships
with the CE industries than with the PC industries.

(On the negative side, PCs are seen as more expensive and more
difficult to use than CE devices.  CE devices have enjoyed wider
and faster market penetration.  To some people, the CE device is
the ideal in terms of user interface even if it's not the ideal
in other ways.)

If these device families actually do "converge", on whose terms
will they converge?  Will the PC grow more like a DVD player (or
a TiVo), or will the PVR and cell phone grow more like PCs?  And,
since "being like a PC" or "being like a CE box" is not just a
single dimension, in _which ways_ will they become more like one
another?  Which particular characteristics will each now imitate?
(For example, many CE devices today do have a CPU, RAM, and
operating system, and do run software, as in a PC -- but it's not
software chosen or loaded by the owner of the device!  The same
is true of many cell phones and other mobile devices.)

In terms of end user control, there is an opportunity for CE devices
to converge up (enhancing customers' control) and a risk of PC
devices converging down (eroding it).  I think the world the
entertainment companies have built is providing exactly the wrong
incentive at every point as this question is worked out.

--
Seth David Schoen <schoen () loyalty org> | Very frankly, I am opposed to 
people
     http://www.loyalty.org/~schoen/   | being programmed by others.
     http://vitanuova.loyalty.org/     |     -- Fred Rogers (1928-2003),
                                       |        464 U.S. 417, 445 (1984)

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