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Will Obama Outlaw Your Tivo?

This week we will witness the swearing in of Barack Hussein Obama as the 44th President of the United States and there is a big list of issues he must immediately confront. You might be surprised to know that one such issue is the legality of the next generation of Tivo type video devices. Almost immediately, he will be required to take actions which could outlaw or legalize your next Tivo (digital video recorder) and maybe consumer recording entirely. Let me explain what's happening.

In 2006, a cable company named Cablevision wanted to provide a DVR to all of their customers and came up with an inventive way to offer the service. Normally consumers have to buy or rent an expensive set top box with it's own storage. In addition, a service call is typically required where a technician installs the device. This makes the service expensive limiting who can afford it. Cablevision decided to build a giant storage system in their main headquarters and provide an inexpensive remote control to each users which would send signals to their central system to record the desired shows. The same remote would send signals to have the shows played back for the subscriber that recorded them. They call this a RS-DVR (remote storage digital video recorder). Without a special box in each home that requires installation Cablevision could save hundreds of dollars per house and offer this service almost overnight to all their customers for a very low cost.

When the media companies heard of Cablevision's plan they rushed to court and filed a lawsuit. Both movie and music companies said this was copyright infringement because Cablevision was making copies without a license. Cablevision said that it was the consumer doing the recording. Last summer an appeals court declared it a legal service because - although the primary equipment is in Cablevision's office - it was the individual initiating the recording process and once recorded it was ok to transmit the signal back to the home when they requested it. Soon after the ruling the media companies asked the Supreme Court to overturn the Cablevision decision. Before agreeing to take the case, the Supreme Court is asking the government for their views on the issue. This means the solicitor general, who acts as the President's Representative before the US Supreme Court, will be required to file a brief about what the Mr. Obama thinks of this new style of video recorder. (The Dean of Harvard Law School Elana Kagan has been nominated by Mr. Obama as the next solicitor general.)

In 1984, the Supreme Court ruled in the Betamax case that the VCR was not illegal. This gave consumer's the definitive right to record TV and movie programming. Twenty fives years later the Supreme Court is considering examining personal recording again. Many of the same challenges are being raised. However, the only fundamental difference between the VCR and RS-DVR is where the storage resides. With the VCR, recordings were saved to magnetic tape in your home. With the RS-DVR recordings are archived on magnetic hard disks down the street.

Since all services and storage are moving to the cloud (which is just a more cosmic name for the Internet) outlawing remote storage would cripple the advancement of technology. Net based services can be nearly infinite, omni-present, and experience constant improvement. My company MP3tunes offers remote music storage so you can listen to your music anywhere on any device, never risk losing your music and we're constantly rolling out new features like the ability to send songs to your phone turning it into a MP3 player. Such services could be threatened by an adverse ruling in the Cablevision case.

I find the Supreme Court's request to hear from the Justice Department on this case a curious development. How does Obama's views impact whether Cablevision's service is within the law? If Obama says he believes RS-DVR are legal will the Supreme Court reject the appeal? If his position is the appelate court is wrong will the agree to hear the case and make RS-DVR illegal? I recall a high school government class where they extolled the value of three separate branches of our government which provide checks and balances for each other. The judicial branch interprets the laws and insures new laws don't violate the constitution.

I'm hopeful that President Obama understands all that is at stake in the most important media case since Betamax. Clearly he is the most technical savvy President and many in his entourage understand technology well as evident by their extensive use of innovative technology to drive his campaign. Still what concerns me is the massive amount of legal contributions from the media companies to his campaign. Obama raised over $670 million dollars to get elected. Dollars buy access. Access leads to favors. Additionally, in Vice President Biden the media companies have a long time ally who has consistently championed against consumers and in favor of media companies. Will Obama side with the media companies or consumers? Will a whole new group of people be able to benefit from DVR thanks to the cost efficiency of the newest design? Or will personal recording be crippled in the future? We will know more in 2009 and Mr. Obama could be the difference.

--MR



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