The race to get quality content directly to your HDTV has been building for a few years. TiVo now includes podcast aggregation ability, AppleTV includes the ability to watch movies, independent films are distributed via iTunes directly to your TV, and Boxee now aggregates and scrapes the social web for online video that your social network is watching and allows you to broadcast directly to your home theater.

Consumer electronic devices have gone from component HDTV connections to HDMI and optical inputs for quality HDTV viewing.

Hollywood would like to break your TV and revert your viewing experience back a few years. Never mind the evolution of media distribution created by an open market. The large corporate trade associates want to control distribution abilities directly by breaking your TV.

The MPAA (Motion Pictures Association of America) has been trying to increase movie distribution while maintaining full control of their content. Throughout the years they have joined forces with the RIAA (Recording Industry Association of America) to take on media related websites, bit torrent technology, and various file sharing programs in an effort to crack down on illegal piracy.

Enter Selectable Output Control (aka The Cable Kill Swith).

“Selectable Output Control” (”SOC”) is the remote signaling of home devices by content providers or distributors, to turn off consumer home interfaces on a program-by-program basis. The interface in question would simply not operate for the particular program. It would mean that a consumer who has purchased an HDTV display, and pays for a set-top box or other device with an HDTV output, still might not receive all of the HDTV programs he or she has paid for — because the interface between the set-top box and the HDTV display has been turned off by remote control. In the long term, imposition of SOC could have the effect of driving from the market any home interface that supports home recording. HRRC has opposed imposition of SOC by law or in any context subject to regulation.

SOC is activated by data “triggers” that ride along with program information when it is sent to the home. FCC Encoding Rules currently ban SOC use, but the FCC has left the door open to its use in the future.  – Home Recording Rights Coalition

Here is a video about this technology:

For years the FCC has limited the SOC option from content creators or distribution providers (cable companies.) However on November 23rd the MPAA sent a letter to the FCC defending their original request to wave the FCC’s previous deicsion to block access to the SOC technology.

Public Knowledge, Home Recording Rights Coalition, the Consumer Electronics Association, and various other organizations took a strong public stance against the original request (the letter available here:: http://www.publicknowledge.org/pdf/soc-genachowski-letter-20091104.pdf.) In additional they responded to the newest letter in several strong blog posts stating:

“it utterly fails to demonstrate that anybody steals content through the analog hole or that giving the MPAA the ability to shut off both analog and protected digital outputs would have any impact at all on piracy.” (original link: http://www.publicknowledge.org/node/2783)

Further:

“We use the word, ‘breaking,’ deliberately, here and in previous filings and videos, because that is exactly what would happen if the industry has its way and the FCC grants the ill-conceived waiver to allow the industry control over consumer devices. Because of existing FCC rules, a consumer with a stand alone digital video recorder (DVR) or Slingbox knows that it will work for all video-on-demand (VoD) services, and that compatibility is a key factor when consumers spend their hard-earned money on consumer electronics. It would be a rude shock if, at the industry whim, some of those devices did not perform as expected. (original link here: http://www.publicknowledge.org/node/2782)

As the debate continues between Hollywood studios, consumer electronics manufactures, and home recording rights advocates, there are many more that have yet to weight in on this debate or be mobalized that will be severly impacted.

Given the current economy, job creation is critical. Direct-to-home movie releases will eliminate thousands of movie theatre jobs and hurt movie theatre owners. The National Association of Theatre Owners (NATO) has yet to publish a statement on this issue and the impact it will have on the job market.

How will this impact independent distributors and 3rd party content distributors such as Apple iTunes, Boxee, TiVo, etc?

Will blocking their signals be next?

Greg Tarr from TWICE says it best:

“There is also no readily available consumer friendly way to make copies of HDTV programming over the so-called unprotected analog component-video outputs. So why do producers require the ability to shut down such ports? Why must thousands of consumers who have purchased expensive HDTVs five or more years ago lose the ability to watch some programs in HDTV now that it is finally available? Just to prevent a handful of pirates from possibly using expensive professional recording equipment with complex analog-to-digital encoders from illegally reproducing the content for sale?

The solution to that problem lies with law enforcement, not by discriminating against the people who helped to make the digital TV transition happen.”

In the coming weeks we will put this issue on the forefront. New Media content producers, movie theatre owners, workers, and consumers have yet to weigh in.

This issue will not just be an FCC issue. We expect Net Neutrality related issues to surface in Congress around this matter. We will be talking to these groups in the coming weeks and begin to organize a consumer led public awareness campaign.

For now, your thoughts on this issue is important.

What are your concerns?

Will this affect you? If so, in what way?

Today, Jeffrey Neuburger posted a great article titled, “Changing the Law to Save Newspapers: Some Modest Proposals,” on the PBS MediaShift blog.  The article is from traditional media’s point of view, not surprisingly, some of these proposals infringe on emerging news distribution technologies such as SEO regulations for online news.

After reading this article I was struck by the question, “what is newsworthy content?”

We encourage you to read the below article and post your thoughts.

Below is a snippet. To read more, here is the full article:

Change Copyright, Tax and Antitrust Laws

A proposal by a pair of Washington attorneys to address the problems of newspapers would go further than either the Posner or Cardin proposals, at least in terms of scope. Bruce W. Sanford and Bruce D. Brown echoed Judge Posner’s concern about the survival of traditional journalism in a May article in the Washington Post. In Laws That Could Save Journalism, they opined that unless Congress makes changes in public policy “we will soon find ourselves with the remnants of a broken industry incapable of providing the knowledge necessary to manage life in a complex world.” To fairly place that statement and their proposals in context, it should be noted that both attorneys are former journalists with extensive experience representing traditional media clients, and Sanford is counsel to the Society of Professional Journalists.

Sanford and Brown also propose a change in copyright law, to prohibit “the taking of entire web pages by search engines.” Like Judge Posner, they don’t elaborate on that point, but presumably they are referring to the fact that when search engines “crawl” websites, they copy entire web pages to their servers in order to index the contents and provide results in response to web searches.

Search engine crawling and copying can, in most cases, be inhibited by deploying a “robots.txt” file on the content owner’s server containing directions as to what may be crawled and copied. Most search engines respect the directions set forth in a robots.txt file.

Two federal district courts have held that a content owner’s failure to deploy such a file gives rise to an “implied license,” effectively permitting the owner’s content to be crawled, copied and cached without giving rise to a claim of copyright infringement. But protecting content by the deployment of a robots.txt file is a double-edged sword, as online users are less likely to find newspaper content that is not indexed by search engines, as Sanford and Brown point out.

Echoing some of the proposals outlined at the Kerry hearings, Sanford and Brown also propose that regulatory restrictions on the ownership of media outlets be eliminated, that federal tax policy be changed to favor newspapers, and that antitrust law be changed to permit traditional news outlets to adopt collective pricing policies. But perhaps their most interesting suggestion is that the “hot news” doctrine recognized under New York law be “federalized,” that is, enacted by Congress as a federal law applicable nationwide. As we discussed in a prior post, under the “hot news” doctrine, uses of news content that are not protected under federal copyright law can be challenged under the state law of unfair competition, and the Associated Press has been successful in using the doctrine to challenge the use of its content by competitors. Federalizing the doctrine would make it easier for other traditional publishers to similarly challenge the use of their original content in circumstances not covered by the New York law.

No doubt anticipating criticism for proposing laws that would favor traditional publishers, Sanford and Brown point to a precedent: Online publishers were favored in 1996 with the enactment of Section 230 of the Communications Decency Act, which exempts online providers from defamation and other liability from content posted by third parties. The protection that Section 230 provides to online providers has generally protected them from costly judgments based on content that they have not originated.

Josh, from SaveTheNews.org, has responded to this post.

At SaveTheNews.org we have conducted an in-depth study of journalism policy and new models, outlined a national journalism strategy and recommended policy proposals that we think deserve more attention including: Strengthening media ownership laws, Creating tax incentives and revising bankruptcy laws to encourage local, diverse, nonprofit, low-profit and employee ownership, creating a journalism jobs program, developing an R&D Fund for Journalism Innovation, and transforming our public media system into a world-class noncommercial news operation utilizing new technology and focused on community service. And, as more news and information moves online we must work tirelessly to bridge the digital divide.

Any new laws designed to save the news need to take into account what our communities need, and put the public interest first.

We at New Media Policy Group agree. But what “interest” do we define as public?  As discussed in Jennifer’s article, shouldn’t news outlets enjoy some protection in return for being the original news creator and investing in finding the news?

This ongoing debate bounces back and forth from companies that distribute news traditionally and companies that distribute using new media technologies. Each group rallies their base of support which is seen as “public interest.”

The reality is that consumers of news are divided; but common ground can be met knowing that the public interest will always rest in quality and timely reporting. Traditional outlets will evolve to meet that demand. Policy must recognize that.

How do you consume your news daily? How does such solutions impact your consumption of news?

In Associated Press v. All Headline News Corp., AP brought a copyright infringement suit against All Headline News Corp., a website that redistributes news articles.  AP alleged AHN was redistributing AP articles in their entirety and passing them off as AHN articles.  In addition to copyright infringement, the AP brought a number of other claims, including misappropriation under the “hot news” doctrine, a New York common law doctrine.  The Supreme Court of the United States upheld the “hot news” doctrine in the famous 1918 case International News Service v. Associated Press, 248 U.S. 215 (1918).

On face, this case may appear to simply be a copyright infringement issue…after all we are all taught in grade school that copying another person’s work and passing it off as your own is wrong (in college we find out its illegal).  The impact of this case’s outcome is that IP rights will either be assigned to AP’s reporting when in digital format or they will not.  Digital format can mean any online content distribution from the daily blogger to large websites like AHN.  This does NOT mean that the content can no longer be placed online by third parties, but under AP’s official policy, everyone from bloggers (like me) to Drudge himself will need permission from AP before posting their content.  Permission usually also means that the person posting content must pay AP for the content.

Those of us in the news industry know that AP does not usually enforce their “official policy” but they do require that AP receives credit/acknowledgement when their articles are posted by third parties.

So now that we understand how a case like this can impact our use and consumption of online materials…how was the case decided?  It settled!  However, before the parties settled, the court found in favor of AP on AHN’s motion to dismiss stating that AP had a claim under the “hot news” doctrine following the Second Circuit’s holding in National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), that a valid claim for misappropriation under the “hot news doctrine” lies where a plaintiff pleads the following: 

(i) a plaintiff generates or gathers information at a cost;

(ii) the information is time-sensitive;

(iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts;

(iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and

(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

So what…no court decision means no precedence, right?  WRONG, this case demonstrates that a New York District court will allow news creators, like AP to bring claims under the “hot news” doctrine; that the District Courts of New York believe that this doctrine CAN be applied to digital news; and that AP can and will go after those they consider “plagerisers” of their content using this doctrine as their sword.

So where does this leave us?  In 1918 AP argued that their content should be protected under IP laws because investigative journalism is expensive, there are large upfront costs to sending journalists all over the world to collect information and report stories.  If those stories can be taken by any media outlet and distributed without compensating AP, then there is no incentive for AP to invest in investigative journalism, society does not receive the benefits of global news.

On the flip side, are policies like this even enforceable?  How can AP really police every blog site, news site, newspapers, ect.?  Truth is that they cannot, which leaves them with an IP right that not even the organization can enforce.  Further, do policies like this hamper our abilities on the semantic web to talk about and distribute news?  Will the information debate become as confounded as the digital music debate?

Personally I think that AHN was wrong to take AP’s stories verbatim and pass them off as their own, AP deserved the credit for those stories, even though they were posted on AHN’s site.  However, I would not like to see AP become extremely closed with their information and overly enforce their reporting by not allowing anyone to site or use their articles without express permission from AP.  AP could very well decide that the only way we can get their news is to go to their website. Do we then get into antitrust issues?

Its all extremely complicated and affects our daily lives.  One case (that settled) out of New York could change the way we consume news online.  This is why it is so important to understand policies being created from our legislatures, courts, and Congress in regards to social media and the Internet.

What are your thoughts on this case and how we consume digital news?

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