TiVo Handheld Device Software Draws Ire at TV Network

Published November 23, 2005

| EWeek

TiVo Inc. announced this week that new software it plans to make available next year will allow users to download TV shows and films to Apple's iPod and Sony's PlayStation Portable (PSP) handheld devices.

The new enhancement to TiVo's TivoToGo feature will include capabilities such as TiVo auto-sync, which will allow subscribers to choose if they want new recordings of their favorite programs easily transferred to their portable devices via their PC.

Every morning the devices can be loaded with new programs recorded the night before, the company said.

"We're making it easy for consumers to enjoy the TV shows they want to watch right from their iPod or PSP," said TiVo CEO and former NBC programming executive Tom Rogers.

However, at least one content provider, NBC Universal, is making waves about whether the Alviso, Calif.-based digital video recording company is going too far in distributing television content.

"TiVo appears to be acting unilaterally, disregarding established rights of content owners to participate in decisions regarding the distribution and exploitation of their content," an NBC Universal spokesperson told Hollywood's Daily Variety trade paper. "This unilateral action creates the risk of legal conflict instead of contributing to the constructive exploitation of digital technology that can rapidly provide new and exciting experiences for the consumer."

Thus, NBC said, widespread use of such technology could be seen as a clear threat to the network's ability to market and sell such products as DVDs, videotapes and CD-ROMs that contain video and audio copies of original network content.

Ziff Davis Internet contacted an NBC representative in New York for further comment Tuesday, but the spokesperson declined to offer any other statements.

Two nationally known intellectual property attorneys don't see it NBC's way.

"I can't see any legally significant difference between this proposed service by TiVo and the Sony v. Universal Studios case [1984], where time-shifting was expressly found to fall within fair use," Dan Ravicher, president and executive director of the Public Patent Foundation and an expert on digital intellectual property, told Ziff Davis Internet in an e-mail.

"Also, all the music companies are fine with the exact same activity, as they don't go after companies that sell CD-ripping software or MP3 players, which allow consumers to do with music what TiVo proposes allowing them to do with video.

"Heck, VCRs allow people to record shows on tape, which they can then play in their car, office, or other location from the site of recording. So, all in all, I can't say NBC is 100 percent absolutely and without a doubt wrong, as the law is too unpredictable and unstable for that conclusion, but odds are very much strongly against them."

NBC Universal may have one legal leg to stand on, but it will have to hop around a lot in court to get anywhere, remarked another IP attorney.

"I suppose TiVo is announcing this as a 'space-shifting' follow-on to the traditional 'time-shifting' feature," Larry Rosen, author and principal with Rosenlaw & Einschlag, told Ziff Davis Internet via e-mail.

"The latter was long since reviewed in principle by the U.S. Supreme Court and found to be legal for consumers to do. (That's how we got videotape!). Yet again, the right of consumers to make additional copies of their own legitimately-acquired content for personal use apparently conflicts with the exclusive right of copyright owners to make copies."

The common reality is, though, that everyone makes copies of content nowadays for their own personal uses, Rosen said.

"It is inevitable in practice. TiVo and iPod are each designed for that legitimate purpose — and are very popular products because of it. This latest link between TiVo and iPod sounds like a reasonable technological response to consumers' needs when they own both TiVo and iPod devices. This new feature will happen."

Rosen doesn't think that this adds much risk of promoting the still-illegal forms of copying and distribution that NBC fears most.

"Does NBC think that consumers will offer TiVo-to-iPod distribution services that will destroy (yet again!) the networks' financial models?" he asked. "Be serious! This new feature won't affect the restrictions on re-broadcasting or other protections that the networks already have under copyright law, so NBC shouldn't grouse.

"Their threats are weak. I'm confident that their phrase 'risk of legal conflict' doesn't mean they honestly think they'd win a case preventing the public from continuing to practice its assumed fundamental right to watch NBC television whenever and wherever they want. NBC should just be grateful they have shows people want to watch."

Representatives of Apple Computer Inc., makers of the iPod, were not available for comment Tuesday.

The company offices are closed for Thanksgiving week, a spokesperson's recorded message said.

TiVo said it will begin testing the feature in the coming weeks with a select group of TiVo Series2 subscribers who already own the Apple Video iPod or PSP devices.

TiVo said it plans to make the feature available to its entire standalone TiVo Series2 subscriber base as early as the first quarter of next year.

Last year, TiVo made available to all its Series2 subscribers the TiVoToGo feature. The TiVoToGo feature allows subscribers to transfer TV shows from their DVR to a laptop or PC over their home network.

From the PC, subscribers can watch the shows, or transfer them to devices compatible with Microsoft Portable Media Center format.

Subscribers will need to purchase low-cost ($15 to $20, TiVo said) software to facilitate the transfer of content from the PC to these portable devices.

To discourage abuse or unlawful use of this feature, TiVo intends to employ "watermark" technologies on programs transferred to a portable device using the TiVoToGo feature that would enable tracking of the account from which a transferred program originated, the company said.

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