Local television is in a position to solve ‘fair use’

November 17, 2005

For most people, ‘fair use’ means you can make a backup copy of things you’ve purchased like CDs, DVDs, software, etc. The problem is that digital media and the Internet have made it easy for ‘bad guys’ to make flawless copies and distribute that content illegally over-and-over. These bad guys are stealing from the copyright holders. This is a problem. Congress should address this problem in such a way that you and I can still enjoy our own digital media (stuff we’ve acquired legally) on any device and in any location.

Yesterday, November 16, 2005, Representative Cliff Stearns (R-Fla.) held a hearing entitled: Fair Use: Its Effects on Consumers and Industry. In his opening statement, the Honorable Chairman Stearns stated, “I believe the affects of the Digital Millennium Copyright Act (DMCA) to lock out consumers from the proper and fair use of material is a perverse result of the law.” He is right. Take it from someone who has spent a considerable part of his life on Capitol Hill, no one (and I mean no one) could have anticipated the meteoric advancement of technology which has occurred in recent years.

From where I sit (which is squarely between broadcasters and viewers), yesterday’s hearing signified a very important shift in the way Congress views both a consumer’s right to consume entertainment content and to make additional copies of that content for back up or consumption on other devices, e.g. iPod, Blackberry, bedroom television, etc. You see, technology has really has outpaced existing laws. While some pirates have abused technology to secure illegal copies of intellectual property, most people have not. Most people are honest. That said, laws should be crafted to punish piracy while not impeding everyday-citizens’ rights to enjoy content whenever they want, wherever they want and on whatever device they want. The hearing yesterday was a huge leap in that direction.

Here’s what I think and why:

The average U.S. television household gets 12.3 over-the-air channels and, in many cases, 200+ channels via cable or DBS. If the average consumer had 200+ TV’s in their family room they could watch, in real-time, every channel. Much to my wife’s chagrin, the Titan Household has 14 televisions (I know this is not normal). Still, because I have invested in technology, I have both the right and ability to watch 14 different shows simultaneously.

Cable and DBS channels have the luxury of being able to broadcast a show over-and-over-and-over. So, if you missed “Curb Your Enthusiasm” Sunday nights on HBO, odds are it will be on again-and-again-and-again. Typically, a local broadcaster cannot do this, i.e. Desperate Housewives only airs at 9:00 on Sunday night. If you didn’t set your DVR, you won’t see it again until rerun time. Therein lies the opportunity.

Local broadcasters invest in programming with the sole intent of getting 100% of their market to watch a show. Not even the Super Bowl gets 100% of viewers. Because of advancements in technology – no, not TiVo – it is possible for a broadcaster to use the Internet (and digital broadcasting) to allow viewers to go back in time and see previously aired shows.

Consumers purchase televisions, personal computers, iPods, and other devices with the sole intent to consume entertainment content. No one, not even a guy with 14 televisions, can consume more than a couple of shows at once. It is nice though on New Years Day…

‘Fair Use’ should allow consumers to consume all entertainment content just as if they had sat down when it aired the first time. Why not? It is our right to watch programming when it airs as long we can get it either over-the-air or over cable or DBS, right? Right. Then let’s embrace the Internet as opposed to run from it. Let’s give broadcasters the right to meet viewers on the web. 

When it comes to television, the Internet should not be viewed as ‘another’ broadcast means, it should be viewed as the same. Given suitable boundary constraints, the Internet should be used as a means of extending a local station’s ability to reach its viewers. It should be viewed as an extension of our nation’s system of free over-the-air broadcasting. Nothing more. Broadcasters simply deserve the right to broadcast to the market that is already theirs to begin with.

So, the question is, what happens if I missed a show. Should Apple, Google or Yahoo now take over the viewer? No. Broadcasters, local broadcasters, should control both synchronous and asynchronous consumption by viewers of the content they air. There is no need for a third party.  

Here’s my proposal:

Content owners should treat local broadcasters for what they are – trusted content distributors. If you want to take the gray areas out of “fair use,” put local broadcasters in control of previously aired programming. Why not? It’s pretty well agreed that technology has outpaced the legislative process. No solution will ever keep out all the pirates. And, most importantly, it is the local broadcaster who is in the best position to create a win-win solution. How many local ABC affiliates are going to end their newscast with “To see last nights Desperate Housewives, go to iTunes?” Exactly none. How many local ABC affiliates would end their newscast with “To see last night’s Desperate Housewives, login to our website at WWW…” Exactly 210. That’s 210 television stations reaching 100% of U.S. households with the power to make Apple’s 1 million downloads of Desperate Housewives seem minuscule.

Put local broadcasters in charge of ‘fair use’ by letting them queue up our favorite shows so we can BackCast (TM) them. The technology exists today to let broadcasters and viewers meet on the web. As for Decisionmark, we’ve done our part. Our air-to-web-broadcast-replication (AWBR) technology ensures that viewers only get content over-the-web which they could have otherwise recieved over-the-air. Our technology replicates over-the-air television signals over-the-web. No one else can do that. Just us. We’ve also built a system to queue the content, wrap DRM around it, and ensure that it only reaches those viewers which were entitled to watch it the first time. Who better to protect the interests of viewers and copyright holders when it comes to ‘fair use’ than the trusted content distributors who taught us to watch TV in the first place?

As for a business model? Why not make it free? For the first time ever local broadcasters will have exact viewer metrics. Advertisers will pay a premium to be the BackCast sponsor of Lost, or Desperate Housewives, or CSI, etc. Think about it. If the only price you had to pay was to sit through a 3-second spot saying, “Last night’s Survivor brought to you by Chevrolet. To see our entire line of cars click on the Chevy icon at the bottom of the screen,” who wouldn’t do that? The local broadcaster wins. The advertiser wins. The viewer wins…

Pirates are bad, but technology is a good thing. Let’s use it. Keep the pirates out and put the consumers in.