Streaming video and the insanity of copyright law

No matter what your position on the Internet, cable/satellite broadcasters and TV content makers, you should definitely read Ars Technica on why the current streaming TV legal situation is insane and how it got that way:

...the Supreme Court had meddled with the primal forces of nature, and Congress promptly swung into action, revising the law to override Fortnightly and Teleprompter. The 1976 Copyright Act added a "transmit clause" to its definitions to make clear that whether a work was performed "by means of any device or process" and whether the public received it "in the same place or in separate places and at the same time or at different times," it would still infringe if transmitted without permission.

It turns out that letting professional politicians pull laws from their rear fundaments is a bad idea. Who knew?

The centre of this article is the concept of placing the functions of a DVR (digital video recorder, e.g. your Sky+ box) in "The Cloud"; instead of transmitting all TV stations in a multiplexed signal down a cable or satellite channel and letting the subscriber's DVR pick out a channel for recording, do the whole operation in the provider's data center and let the user just download the content they'd stored when they needed it. No longer was the size of your DVR's hard disk an issue - you could use as much disk as your provider let you have, and no doubt pay per GB. But the TV networks didn't like that idea, much as they had disliked the original concept of home video recording, and sued; the Second Circuit court knocked back the claim on these points:

First, each time a user recorded a program, the RS-DVR made a separate copy of it for her, storing it on her own dedicated hard drive space. Second, each time she played back a program, it came from her own stored copy.

If I had been an enterprising lawyer for the networks, I would have been asking hard questions about the presence of any data de-duplication in the providers' servers; does each subscriber's recording of "Jersey Shore ep. 570" occupy an identifiable and distinct GB of hard disc space, or is there a single copy that they point to? Still, that defeat wasn't enough for the networks, and they're constantly looking to take the wind out of broadcasters' sails, on and off the Internet.

It then turns out that the murky mesh of regulations has required Internet TV startups to do things that any reputable engineer would have termed "insane". Case in point: Aereo who let you buffer live TV:

Aereo filled its Brooklyn data center with dime-sized antennas — 80 on each circuit board, with 16 boards to a rack. When a user is logged in, Aereo designates one of the antennas as "hers" and starts recording the chosen channel to a unique copy on a hard drive, Cablevision-style. Then, just like with Cablevision's RS-DVR, she can stream the stored video over the Internet.

In other words, the end result isn't important - it's how Aereo is seen to be operating as a broadcaster. And it turns out that the aforementioned deduplication issue could be worked around as well:

But a federal judge thought that this deduplication wasn't a problem, explaining, "The record demonstrates that MP3tunes does not use a 'master copy' to store or play back songs stored in its lockers. Instead, MP3tunes uses a standard data compression algorithm that eliminates redundant digital data." So either the judge didn't think that individual copies were necessary, or he misunderstood what a "master copy" was.

I'm with Ars Technica on this - if I were a business relying on this point of judgement for my business, I wouldn't sleep terribly well at night. Some legal clarification would be very welcomed.

All this goes to show that it's a miracle that any substantial improvements in TV watching technology get delivered to us end consumers. If the networks have their way (and no doubt they are busy contributing to re-election campaigns as we speak) most of these will be rolled back. As P. J. O'Rourke notes:

When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.