Source: Fortune.com
Written By: Greg Lindsay
When enterprising hackers cracked encrypted DVDs, allowing movies to be copied and swapped online, Hollywood made sure you knew about it. Lawyers swung into action, cease-and-desist letters flooded mailboxes, and even a few show trials were arranged. When SONICblue introduced a personal video recorder that allowed users to swap recorded TV shows over the Internet, the reaction was much the same. Twenty-nine media companies sued SONICblue to keep its ReplayTV 4000 model out of consumers’ hands.
Yet so far the entertainment industry bulldogs have stayed noticeably silent about an old model of TiVo recorder and a new flavor of Windows that now allow hackers to swap video. Why haven’t TV executives mounted a similar defense against these potential tools for would-be pirates? Perhaps because their erstwhile partners, TiVo and Microsoft, all but invited the video swappers in.
TiVo is a leading brand of personal video recorder (PVR) that saves shows to hard drives instead of cassettes. (Ironically, TiVo counts several of the plaintiffs in the SONICblue suit, like NBC and CBS, among its investors.) Consumers love TiVos for the same reason they make advertisers fret: you can record a show, watch it whenever you like, and quickly skip over the commercials. In the last year, older TiVos have been hacked just as thoroughly as DVDs. And now Microsoft has upped the ante with its new Windows XP Media Center Edition, which melds PVR hardware into PCs; users who have file-sharing programs like Kazaa aboard will be able to swap as much recorded content as they like.
The law that ensnared the DVD hackers, the Digital Millennium Copyright Act (DMCA), doesn’t specifically address the question of PVRs. But when it comes to the legality of hacking digital media, the law zeroes in on “circumvention” — did hackers have to circumvent protection to copy the video? Several hackers who have published their techniques online say they didn’t have to crack anything to extract video from their TiVos.
All they needed, they say, was a PC, a “TiVoNet” ethernet card ($100) and a program named ExtractStream. After being copied to the TiVo, which runs on the Linux operating system, ExtractStream locates the video and audio data on the TiVo’s drives and begins playing them back, recording each separately. They’re copied later to the PC to be rejoined and saved.
“TiVo didn’t publish how to extract video from it but they also didn’t take any preventative measures,” says Chris Chiappa, who by day is a software engineer at a major database company. “It would be more accurate to call it ‘reverse engineering.’ I don’t think it could be found illegal.”
While Chiappa is not a legal expert, an attorney with past experience in DMCA litigation who asked to remain anonymous thinks he may have a point. Early TiVos stored video in a proprietary file system (one that wasn’t transparent to PCs) but wasn’t encrypted per se. “We think of protected access in the sense of a locked door,” the attorney says, “and I don’t know that there would be a claim that the design of TiVo to keep a recording in the box is a technological measure that effectively controls access.” In other words, because the TiVo was designed to record video, users may be able to legally record to wherever they aren’t specifically forbidden.
That’s a moot point for most TiVo users now — the current models boast “military grade” encryption — but it may help make the case for new owners of Windows XP Media Center Edition PCs when they start swapping. They certainly have it easier — instead of having to pry the recorded TV from the guts of Windows, it’s stored neatly in a folder named “My TV.” All a user has to do to start sharing video files is select that folder while using the online swapping software.
Microsoft promises to work with the TV networks to protect [copyrighted] video content, but the rampant growth of file-swapping will only serve to drive the popularity of its machines. “With regards to the ethics of this, what we were really focused on was finding a solution that worked and would provide consumer choice,” says Jodie Cadieux, the marketing manager of Windows eHome Division. “It is challenging to walk that fine line,” she concedes.
Some industry observers think Microsoft has likely crossed it. “We’re sitting here wondering how long it will be until Microsoft gets sued,” says one analyst. And there are provisions in the DMCA that could call for that.
“If one wanted to be highly legalistic, [the DMCA] makes it sound as if the copyright owners have to bless the [recording] system to be legitimate, and I have no idea if the copyright owners has said this is okay,” says Jonathan Zittrain, a professor of Internet law at Harvard Law School.
Swappers aren’t absolved of standard copyright abuse, either. Copying entire seasons of “The Sopranos” for Net distribution is still a no-go. “It’s one thing to have hacked it,” Zittrain says. “‘Distribution of works’ is another violation altogether. It’s apples and oranges,” and the oranges could still land you in jail. But an attorney with DMCA experience under his belt says precedents set in the VCR-related suits of the early ’80s mean network TV is still up for grabs if the commercials are included in the video. It looks as if lawyers will have a lot to say, actually, before all of this is settled.
The networks may have a right to be afraid of the genie that TiVo let out of the bottle, however. The research firm Gartner G2 polled digital consumers this summer, asking when it’s appropriate to make copies of DVDs, CDs, software, and TV, and to whom it’s appropriate to give them. While the respondents overwhelmingly frowned on handing media they had bought over to friends, almost two-thirds thought giving away copies of TV shows, digital or otherwise, was perfectly okay.
“Everyone thinks TV is disposable,” says Gartner G2′s research director P.J. McNealy. “People think you can just do anything with it.”
