TVs, iPads, Time Warner Cable, and Viacom -- Copyright vs. Copyrape

The latest overreach of copyright owners over the Time Warner Cable iPad TV app is an interesting encapsulation of all that is wrong with the current excesses of copyright.

I see this as a key policy issue relating my theme of "user-centered media" -- one that gets to the heart of the social contract behind copyright and all intellectual property. The key question is the balance of what is good for users, and what is fair incentive to content creators. The Constitution wisely embraced that balance, but many have lost sight of it.

The case reported by the NY Times Media Decoder is a classic of overreach (and one in which I find myself in the surprising position of supporting the cable companies).  As the Times reports, Viacom pleads that Time Warner Cable’s actions “will interfere with Viacom’s opportunities to license content to third-party broadband providers and to successfully distribute programming on its own broadband delivery sites.”  Let's think about that, both from a technical and a policy perspective.  This is not really a question of TWC vs. Viacom, but of the public vs. the rights-holders.

First, an quick look shows how silly this is from a technical perspective:

• Doesn't Time Warner's distribution of Viacom channels to TVs in the home limit "Viacom’s opportunities to license content to third-party broadband providers?"  If I could not get The Daily Show from TWC, I would certainly be much more inclined to use Hulu for it.  Why does Viacom allow that?
• How is an iPad different from a TV?  (Answer keeping in mind that this is the 21st Century.) 
• I have a Blu-Ray player and a Mac Mini both HDMI-connected to my TV, so I can watch any "third-party broadband provider" programming on my TV, and don't need TWC if Viacom is available through other providers. I can view such broadband provider content on any screen I like, and they are completely free to compete with TWC.  (Such any-screen connectivity will soon be the norm.)
• Why should TWC be locked off the iPad when Hulu is sold rights to distribute Viacom programming to any Internet-connected screen, including both TVs and iPads.
• Remember also that both TWC cable TV and broadband in TWC-served homes both arrive as RF signals running in different channels on the same coaxial cable!
• Once more, what century is this?

But this is really a deeper question of policy, and both content owners and content users seem to forget the basic social contract that drives copyright.  Let's step back to those basics:

• Copyright is designed to maximize social welfare by encouraging content creation
• Copyright owners are given limited rights as their incentive to create content
• The public pays to compensate creators for content.
• The public also may pay distributors and device manufacturers for facilitating access to content, but that has nothing to do with copyright.  (I have to pay for a book of Shakespeare plays or the Bible, or to download it to my cell phone in Timbuktu, but the content is free.)

Thus various parties have rights to compensation:

• The creators of Viacom content have rights to compensation for their content.
• Viacom is entitled to collect such copyright-related compensation, as well as compensation for their contribution to distribution (as well as some profit).
• Distributors and device providers are entitled to compensation for distribution and devices (which, again, has nothing to do with copyright).

But the viewer who pays for content has purchased the right to enjoy that content.  That can take a number of forms, but none are tied to what screen the viewer is using.  For a single viewer (or household, or whatever unit is bought):

• I can pay for time-limited access (such as a streamed subscription) or for permanent access (such as a download or DVD).
• Those costs may be bundled with distribution and device costs, but the underlying copyright fee is a simple and distinct component of that bundle.
• Any copyright-based limitation to content by device or location or technology that goes beyond the simple distinction of time-limited or unlimited access is without foundation.  Such limitations might be forced by technical limitations, but once those technical limitations disappear, they have no basis.

So if I pay for a Viacom program (content) one time, for a month, or forever, I should have unlimited rights to enjoy viewing that content, one time, for that month, or forever.  There might also be software fees for apps, and bandwidth fees for distribution, but there is no basis for any further content viewing fee.*

The copyright owners seem to have forgotten that the maze of licensing that they have so many lawyers working on is mostly an accident of technological history.  Hopefully the courts will not lose sight of the basics and let the tail wag the dog, now that technology is liberating us.  Hopefully they will not let copyright turn into copyrape.

Content does not want to be free, if its creator wants compensation (subject to his limited copyright).  But once I have paid for a license, I should be free to view it as I like, for whatever amount of viewing I have paid the creator for.  Watching multiple times might be a multiple use, but watching on one screen rather than another is not a different use.

Ask not for whom the copyright tolls, it tolls for thee -- for the public welfare.

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*A related issue is the current idea that cable-sourced access might be limited to in-home viewing.  That too is an artificial limitation,with no inherent justification.  It may be hard to prevent abuse of licenses, if I can let all my friends view my TWC content in their homes, but as long as TWC has the technical means to limit viewing to valid subscribers (and those viewing with them) why should there be any geographic restriction limiting out of home viewing?