TiVo Awaits Verdict on Copy Protection

MPAA leads opposition


Consumers continue to be assured that the promise of digital technology's "any time, any place" access to the media they crave is just around the corner--the wheels are in motion. At the same time, a considerable backspin continues to be provided by those who currently control its dissemination--and fear the boogeyman behind remote devices.

Yet another tech and media, anti-privacy consortium was formed last month. This one--Coral--includes Sony, Hewlett-Packard, Philips Electronics, Matsushita Electric (Panasonic), Samsung, Twentieth Century Fox, RealNetworks and digital rights management company InterTrust Technologies. Apple Computer and Microsoft are notably absent.

Meanwhile, back in Washington, the FCC continues to mediate the fate of "digital output protection technology and recording method" providers. The commission certified the following 13 technologies in August:

  • MagicGateType-R (four types from Sony Corp.)
  • SmartRight (developed by a conglomerate headed by Thomson)
  • Vidi Recordable DBD Protection System (Philips Electronics and Hewlett-Packard)
  • High Bandwidth Digital Content Protection (Digital Content Protection, LLC)
  • Content Protection Recordable Media for Video Content (4C, LLC)
  • TiVoGuard Digital Output Protection Technology
  • Digital Transmission Content Protection (Digital Transmission Licensing Administration)
  • Helix DRM Trusted Recorder (Real)
  • Windows Media Digital Rights Management (Microsoft Corp.)
  • D-VHS (Victor Company of Japan, aka JVC)

The FCC's docket indicates that these technologies have been under commission review since at least February, to ensure that content marked with the Broadcast Flag is protected.

FCC rules stipulated a Sept. 13 deadline to file petitions for reconsideration and clarification, said Steve Broeckaert, Deputy Chief, Policy Division. This was followed by a Sept. 28 deadline for parties to oppose the aforementioned reconsideration petitions, and an Oct. 8 deadline for the petitioners to respond.

Lobbyists are free to file less formal ex parte comments and meet with the commissioners until the FCC cuts them off with an announcement that a hearing will take place one week later. Between the announcement and the hearing will be what the FCC calls a "sunshine period," which others refer to as "the cone of silence."

On the other hand, the FCC could opt to decide what--if anything--to consider outside a formal meeting, in which case the commissioners could also scrap the quiet period and circulate a copy of the issue under consideration for the vote.

At press time, it was not clear whether the vote would be done as an agenda item or "on circulation."

The FCC decision is not set in stone. Unhappy parties can appeal to the courts. As one FCC official observed, "We go to court a lot."


According to the docket, only one party petitioned for reconsideration: the Motion Picture Association of America (MPAA). This was somewhat surprising since a number of others had filed comments criticizing the technologies before Aug. 4.

Among them was the NAB, which filed an ex parte presentation on July 28 to express its "concern about the future of broadcast localism." These concerns, it stated, would adversely affect local civic and community organizations, copyright licensees like Major League Baseball and the National Football League, other content owners, local advertisers, the syndication market and licensed programming redistributors.

"Technologies such as TiVoGuard," NAB stated, "do not prevent remote access to content over the Internet." As such, it advised the commission to certify "only those protection technologies that implement proximity control (i.e., that confine content to a geographic approximation of the home), as opposed to technologies that implement remote access."

NAB spokesman Dennis Wharton confirmed that NAB did not file anything after July 28. When asked why, he said, "It's really a network issue."

According to one unidentified network source, the networks are "sticking behind the MPAA on this one."

The MPAA's Sept. 13 filing stated that 11 of the 13 technologies certified by the commission "adequately protect digital broadcast programming."

The two exceptions were TiVoGuard and SmartRight, which, it claimed, did not incorporate adequate proximity controls, though it did note that Thomson pledged on Aug. 30 to incorporate them into SmartRight. The filing stated that the FCC should permit remote access capability only for "defined technologies submitted after the criteria necessary to allow secure remote access have been devised and commented upon by the interested parties in the pending rulemaking."


One broadcast network agreed.

"With the exception of TiVoGuard and SmartRight [which are] without proximity controls, the adoption of these technologies is going to assist in preventing the indiscriminate redistribution of content," said the network source. "This protection is ultimately going to benefit consumers, the owners of copyrighted works and, of course, broadcasters."

Of particular interest to his network, he said, was that "copyright owners are going be encouraged to make high-value, digital content available," which he thinks is "critical to the viability of free, over-the-air television."

According to Jim Burger, a partner at Dow, Lohnes & Albertson, the Washington, DC-based law firm representing TiVo, the DVR company's technology "has the most robust protection system of any of them out there. The MPAA just doesn't like remote access."

The MPAA filing had two other caveats. One was a warning against approving "mixed networks comprised of both affinity-based and proximity-based technologies" until "daisy-chains resulting in indiscriminate redistribution can be prevented." It also alleged an "absence of appropriate mechanisms to disseminate revocation and renewal information"--in other words, proven ways to shut down hackers.


Burger said the daisy-chain scenario that the MPAA is painting is "highly unlikely and, even if it were true, wouldn't result in mass, widespread, indiscriminate redistribution."

"The daisy-chain is very, very hard to do and when you get it, all you get is the access to that group's content," Burger said.

For instance, "Alice" would record a program on her TiVo, transfer it to her TiVo-enabled PC, use DTCP to transfer the show to "Bob's" TiVo-to-Go PC (which would have to be in the same house as Alice's PC), after which Bob would transfer the program to his TiVo for viewing.

"The effort to set this up is expensive and time-consuming," said Burger. "There are so many easier ways to get the content." Bob, he said, could simply get someone to record the show on a DVD using CPRM and mail it next day delivery.

As for the "absence of appropriate mechanisms to disseminate revocation and renewal information," Burger said he's stumped.

"TiVo devices constantly talk to the TiVo server," said Burger. "If you decide you're not going to let it [your device] talk, it revokes itself. It doesn't work any longer, it doesn't allow you to have remote access or even secure viewing group access."

Burger truly believes that TiVo and the studios aren't that far apart. Unfortunately, both are in the FCC process, which demands advocacy and takes time.

"Every day's delay delays us getting a product out there, which can't help the [DTV] transition," he said.

The NFL, for its part, settled with TiVo late last month, reaching an agreement to protect live NFL games against real-time transmission outside of the subscribers' local television market while allowing TiVo users to remotely access their own recorded broadcast programming after its initial airing. The NFL said it would work with TiVo to develop unique NFL content for TiVo subscribers and both companies agreed to consult with each other to ensure that future technologies would not threaten the NFL's copyright concerns.