November 5, 2001-- Newsletter #155

By Joe Burns

Goodies to Go (tm)
November 5, 2001--Newsletter #155

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Greetings, Weekend Silicon Warriors,

Every so often, I'll run into a column that I wish I had written. When you get a chance, enjoy Jonathan Erickson's piece, "MS-DOS, R.I.P." You'll find it at: here.

Did you hear...

A deal? Did someone say there was a deal? Yes. In fact, everyone's saying it. Apparently Microsoft and the U.S. Justice Department have reached a tentative agreement in the anti-trust trial from you-know-where. State Attorneys General are looking over the content for any overt concerns, but right now, analysts say it looks good.

Nimda is back and she's wearing a new coat. The new version looks and acts like the Nimda from a few months back. Those in the virus-protection world are still attempting to make a judgment call about whether the new form is better or worse than the first.

NBC is going for a trip down the The merchandise will be titled, "As seen on NBC," and will be the items shown or featured on the network. A few that have already been mentioned are Emeril's pots and pans and some two-way communication devices shown on the Today show.

Now on to today's topic...

George Santayana's Dictum: "Those who cannot remember the past are condemned to repeat it."

Stop me if you've heard this one before.

The owners of the three major U.S. television networks have brought suit against SONICblue, makers of the Replay 4000 television recording system.

Replay 4000, which can be further researched at:, claims to be able to record up to 320 hours of television program. Furthermore the system makes sending your recorded programs over the Internet, "a breeze." Furthermore, furthermore, the system can block out commercials with a 90-something percent success rate.

Viacom, Disney and GE, owners of CBS, ABC and NBC, respectively, have brought suit claiming that the Replay 4000 system will harm their copyright interests as well as adversely impacting a person's ability to make a living in that television is an advertising supported media.

The ghost of NAPSTER is rising once again out of the pumpkin patch to bring lawsuits to all the bad little boys and girls.

Here we go again. If you think in general terms, we are faced with a company that will make it easy to copy and distribute copyrighted material on a grand scale. The company that owns the copyrighted material appears to have decided that the court system is the way to go to crush the system that is copying the material. It sounds familiar to me.

This may also sound familiar. There has already been a precedent set in terms of copying television programming. In 1984, the U.S. Supreme Court threw out a lawsuit against SONY and its Betamax home recording system stating that copyright laws allowed for "Fair Use." Persons who recorded programs for their own use could do so.

NAPSTER used that argument if I remember correctly.

The RIAA countered by stating that the Fair Use clause did not apply because, thanks to technology, the number of copies people could create could adversely affect the music industry.

The television networks are saying the same.

The RIAA stated that the proliferation of copies could hurt the artists. The television networks are saying the same. The RIAA stated unfair business practices. The television networks are saying the same.

Now, before you think the two cases are true equals, here are some major differences between the two.

The RIAA didn't have to deal with the loss of included advertising like the television networks will. Replay 4000's commercial skip feature is, in my mind, the software's main weak spot and where SONICblue will most likely be defeated in court.

I say that because of two reasons. First, many might suggest that eliminating commercials from a program is equal to someone videotaping a show and zipping through the commercials. Nothing could be further from the truth.

Studies have shown that when you videotape, and then watch, a show, you pay far more attention to the commercials than you would if you were watching it in real time. Advertising agencies understand this and have begun putting bigger text on the screen for longer periods of time. They also showcase the product more so that when you fire through the commercial you get a 4-second spot that pushes the product and slogan, even in fast- forward mode.

Some stations even ask advertisers to spend more for the very last commercial position in stop sets because that's the position where the commercial might actually be seen a couple of times. You know that you can't stop the VCR tape right at the beginning of the program. So you rewind and play a part of the last commercial. If you mess up enough, you may very well watch the spot three times.

The second reason I believe the commercial-free feature will hurt SONICblue is because, just like NAPSTER, copyright law says it will. In order for someone to redistribute legally, that person must hold a new copyright. Copyright law states that in order for a new copyright to be in effect, the changes to the original must be substantial. Simply eliminating the ads will not be enough.

What is working in SONICblue's favor is the simple number of television shows. Unlike an artist who might put out two albums a year, television programs are created en mass and are always used as re-runs or in syndication if the show is popular enough. That sets a sort-of precedent for those who wish to redistribute.

I know it's not much of an argument but I couldn't just leave this stage without throwing a bit of a bone to the Replay 4000 people.

Once again, just like NAPSTER, it is not the ability to record the copyrighted material that got a company in trouble. It's the ability, and the company's desire to trumpet, the ability to distribute.

Yes, you can make a copy for yourself, but you don't own that copy. It is not yours to do with as you please.

The networks and SONICblue are at the very beginning of where NAPSTER was just a few years ago. I ask that they go back and look at what happened and see if there isn't a better way to handle all of this than to simply sue every time another piece of hardware or software pops up.

There are a few lessons to be learned from looking at what came before.


That's that. Thanks for reading.

Joe Burns, Ph.D.

And remember: The bull's eye in the game of darts was originally a cork. In the 19th century, when darts were first played in English pubs, it was meant to be a smaller version of a training exercise for archers. The original target was not a corkboard but rather the end of a keg, the top end. The top was used because that was the end that had the cork stuck in the hole. That cork was the highest score and became the bull's eye on today's modern target boards.

In case you're wondering, the correct set up for a game of darts has each player standing 7 feet, 9.25 inches from the board which is mounted 5 feet, 8 inches from the floor.

I'm not even going attempt to get into the theories regarding why the numbers are in that goofy order.

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