November 5, 2001– Newsletter #155

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 Amazon.com. 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:
http://www.replay.com/partners_products/replaytv.htm,
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.