Tuesday, May 16, 2006

Last night I replayed recorded TV

Last night I watched an "Enough Rope" episode I recorded last week on my Foxtel IQ. I missed a bit when I was called upstairs for Ghostbusting duties, so I rewound the program and played it again. It turns out that that act was an illegal violation of new copyright laws in Australia!

There was a sense that when copyright laws in Australia actually ended up making it illegal to record television programs (on a VCR, DVD or DVR) for personal use, it was a harmless omission in history. Copyright laws just not fitting in with real trends that sensible people knew would not make sense.

So when the government finally gets around to reforming the laws -- through deliberative thought -- you would think that the end solution would make some sense. Not so and Australia is becoming a world-wide laughing stock as a result. Here is a link to the Attorney General's press release on the subject. But it is the helpful Q&As that draw the eye:

Does this mean I can record my favourite television or radio programto enjoy later?
Yes. For the first time you will be able to record most television or radio program at home to enjoy at a later time. This will allow you to watch or listen to a program as it was made available to the public at the time of the original broadcast.
How long can I keep the recording?
The recording must be deleted after one use. It will not be possible to use the recording over and over again.
Can I make a collection of copied television and radio programs?
No. You will not be able to burn a collection (or library) of your favourite programs on DVD or CD to keep. (It will be permitted to record a programon DVD or CD but only temporarily until you watch or listen to it for the first time.)
What can I do with recorded program?
You can watch or listen to the recording with your family or friends. It will not be permitted to sell or hire a recording or to play it at school or work or in any kind of public audience.
Can I give a recording I have made to a friend?
No. A recording is for the personal use of the person who made it. You can invite a friend over to watch or listen to your recording but you can't lend or give it to a friend to take home with them.

Did someone say 'ludicrous'? Is it April 1st?

As you can see here, by replaying even bits of television you are breaking the law. If you watch a program and then let your spouse what it later you are breaking the law.

What next? If you tell someone about the program you watched last night are you violating copyright? Or should I say, if you tell two people!

But it all gets worse. You are of course not allowed to share music with friends or family. Make sense? Well, think about that wedding video. Better make sure it doesn't have any songs playing in the background because if you make a copy of it for grandma you are violating copyright law. And don't even think about backing the wedding video up. If that has music on it, backing up is illegal too.

If the goal was to get people to take the law seriously, then this surely has only made matters worse. It invites illegality. Like me, I replayed a recorded show but it is OK I didn't inhale.

[UPDATE: OK I got the evil plan. When you fast forward through commercial breaks, you end up missing the beginning when the program starts and so you skip back. Technically, you have replayed and so that is what this is all about. Even if you have a Tivo or PC with automatic skip back technically you are still replaying. So it is all about viewing the ads!]


Jeremy said...

This criticism seems both premature and harsh. Premature because we haven't yet seen the draft legislation and it's far from clear that what you're describing is an infringement. (You watched it live in part and timeshifted in part. So, you haven't timeshifted 'twice'. Also, current copyright law doesn't bar insubstantial copying, c.f. the Panel case.) Harsh because, unless you're arguing that we should be able to do whatever we want with a recording once it's broadcast or we buy a DVD, then there's going to have to be some sort of distinction between mere 'time-shifting' and 'media-shifting' on the one hand and copyright on the other. Things like number of times used and use outside the household are probably good ways to define the difference, and certainly better than the current rule which focusses on 'copying' rather than 'using'. (I think they do need to think harder about multi-member households, though, but again we'll see what the legislation says about that.) As for your wedding DVD, I don't see why you shouldn't have to pay the licence fee.

Joshua Gans said...

Just to clarify I had recorded the television show and was replaying it so it is a technical violation of the A-G's Q&A. Anyhow I don't look at legislation -- leave that to lawyers -- but government statements of policy are another matter.

On the harshness, I again refer to the Q&A who require deletion of recorded material once watched (as you note a problem for multi-person households).

Finally, on the wedding DVD, point taken but at the very least the government needs to be upfront about that violation and when it is a violation. Can we even make one copy?

Jeremy said...

Your scenario could be solved trivially by technology: the pause button. What's wrong with the copyright owner saying: "If you don't pause it, you bought it." (Remember that insubstantial copying isn't an infringement, so brief rewinds, for ad-skipping or bathroom breaks, aren't a problem anyway.)

But it's also possible that the problem will be solved legally by defining 'using' (or 'time-shifting' or whatever) according to whether someone actually saw the playing of the recording. If no-one hears the tree fall in the forest, then no-one would have to pay the copyright owner.

The problem is that you're nitpicking the policy statement. But nitpicking is what you should do the implementation (i.e, the legislation.) It seems to me that the time-shifting and media-shifting ideas are the right policies (but I'm no economist.) Multi-person households are a worry, but that's also easy to solve: everyone living in the house each gets the right to time-shift and media-shift a recording owned or made by a householder. So, you and Natalie and the kids can each have their own copy of the wedding DVD. But you'd have to pay for mine.

There will be lots of devils in the details. And I'm sure the Commonwealth's legislation will be rubbish. It ALWAYS is. But I'll wait and see.

(I just love doing the 'word verifications'. I suspect they keep Alzheimers at bay, as well as bots.)

Tanya said...

Criticism at the recommendations stage is indeed necessary – especially when we have a government that controls both houses of parliament.

Here’s a statement from the press release: "Attorney-General Philip Ruddock today announced significant copyright reforms which make our laws fairer...."
From this comment, it would seem that Ruddock is pretty convinced that these reforms will barely make a pit stop at the parliament, let alone be altered after community consultation. At least he’s being honest.

The government's supposed intent was to fix up the clear silliness of the current laws. Some of the recommendations are good but the one highlighted here really is “ludicrous”.

We’re not talking about file-sharing. It’s a simple handing of a videotape or DVD to a family member or friend – not mass distribution. And the fact is that these family members or friends would be entitled to record the show anyway. So, they didn’t make it home on time to push the button on the recorder: now a friend isn’t able to lend them a copy?

This ‘recommendation’ deserves some harsh criticism.

Jeremy said...

So, Tanya, your proposal would be that people who miss a program that's been broadcast on TV should be able to get it for free from friends and family. But people who lack friends and family, or whose friends or family didn't tape the show, should have to pay the copyright owner if they want to see a missed broadcast?

Maybe this could be called 'friend-shifting'. If I was Joshua - with his vast resources for taping every programme ever broadcast - I would start charging a fee for the privilege of being his friend. (Family members of course wouldn't have to pay.)

Tanya said...

Well, I might be demonstrating my limited regard for copyright but to borrow from that superb sage, Lady Bracknell … To lose one’s family, Jeremy, may be regarded as a misfortune; to lose one’s friends as well, looks like carelessness. I’m not so worried about the friendless – they’re no friends of mine! ;-)

Of course, television stations dream of increased friendlessness: it increases audiences and limits illegal copying and distribution. Alas, as Joshua’s post on economists’ networks shows, even those of us who do have friends don’t really have that many of them so just how much damage can we do?

Media producers / television stations don’t lose money because family and friends watch recordings (more than once, in a different house, while occasionally using the rewind function…); they lose money because their programming is not attractive or is not presented in a format that suits common lifestyles. They might actually make money out of allowing people to download or buy DVDs of high quality programming With the way our lives are these days, I figure most of us would rather take only a minute to download a show even if it cost five or so bucks .... honest, we only friend-shift because we don't have a choice!

Joshua Gans said...

When it comes down to it the issue here is an old one: where should we assign legal rights? The government had previously said that no one would have a legal right to record a broadcast. It has apparently abandoned that, not because of pressure from copyright owners, but because it was not enforced and possibly not enforceable.

Given that rationale, it is very surprising to move to a re-assignment of rights -- you can now record -- but that still has the same element of unenforceability -- you can't play it more than once. What is more, they have consciously done this.

The key question is whether this change in rights will benefit copyright owners. That is, will they be able to enforce their rights more easily or not as a result of this. On that score, it is very unclear. Preventing all recordings was very easy to verify -- "is there a recording or not?" It is much harder to verify how often that recording is viewed.

So will the Australian copyright owners go after friendship exchanges as a result of this?

Actually, let's also ratchet this up another level. Broadcasting is itself a right given by the government. The real issue is whether broadcasters can, on the one hand, put out media to all while, on the other hand, requiring them all to watch at a certain time. The latter seems a ridiculous right to enforce in the name of getting people to watch ads.

Actually, if you wanted a clear and sensible but unenforceable law wouldn't it be -- record as much as you want and give it to as many people as you want but everyone has to watch the ads! Among the set of unenforceable laws, surely this is the right one to have.

Tanya said...

I’d really like to see some numbers: just how much non-personal use do we think is occurring? Australia is not China. There must be a way to produce some estimates.

I agree, the new law is even less practically enforceable. The must-watch-ads version is logically better. At least with this version folk would just smile politely rather than cackle loudly.

I imagine that an open slather law wouldn’t go down well with some companies. Perhaps that could be overcome by including clear penalties for those who attempt cost recovery and for the distribution of large amounts (say over 20??).

I really do think that the way to deal with this is for programs to be available on the web, on DVD, and through cable-on-demand soon after broadcast. Bundle the ads with no option to skip. Stick the ads in the middle of the program. Use expiry dates.

Jeremy said...

There are serious penalties already for infringment: it's a criminal offence, carrying a five year prison sentence. Exactly the same penalty as theft in Victoria.

But, like theft, I strongly doubt that the point of copyright law (old or new) is enforceability against all breaches. Actually, I'm pretty sure that no law has that point. My area of research (policing law) is notoriously more honoured in the breach than the observance. Just because the police currently search every aboriginal they want without cause doesn't mean that we should pass laws endorsing that right. Nor should we be drafting search laws that the police won't find amusing.

Copyright laws (like most others) are only ever enforced in extreme or systematic cases. But defining extremity or system is very hard and typically raises queasy issues about ethics and hard questions about resources and consequences of enforcement. Hence, like most law, the laws are defined generally but applied very selectively.

To my mind, the main practical effect of lifting the current ban on time-shifting and media-shifting is to remove the need for the makers of digital hardware (like Tivos and DVD burners) (and related software) to insure against the hypothetical risk of getting sued as accessories to copyright breach (as university libraries were years back.) I'm not sure that Kazaa or even iTunes deserve the same protection. But that's the only practical issue here.

By the way, there is constant discussion on the Topfield web forums (Topfield is a Tivo-like product popular in Australia) about how useful it would be to have an organised way of swapping files to help out people who miss a recording because of a power failure. Topfield would have a strong marketing point if they did this themselves. But of course they don't for legal reasons. And they'd probably stop any such service from being advertised on their own forums. This is the way that even unenforced laws can still achieve something. Remember that bittorrent remains too difficult for unsophisticated users to use.

(As for the 'watch the ads' requirement, I wonder if that could be extended to live broadcasts? Or we force even non-TV owners to report to view their requisite quota of ads. Not sure why time-shifters should be the only ones required to make advertising more lucrative.)