Post

Watch Those Commercials — Or Else

June 3, 2012

It’s hard to believe these days, but
there was once upon a time when TV executives didn’t mind consumers
taking control over TV sets. There were no lawsuits, like the ones
recently filed by the TV networks against Dish for its new
commercial-skipping DVR. (A court has ruled for Dish in a preliminary
part of the case.)

This is what NBC said in its complaint
against Dish in its May 24 lawsuit: “The U.S. broadcast
networks cannot provide the news, sports and entertainment
programming they have historically created and offered if the
revenue-generating ads are systematically blotted out on an
unauthorized basis by distributors like DISH.” Keep those words
in mind.

Once upon a time, there were no cases
taken to the U.S. Supreme Court to challenge the right of consumers
to record shows, as in the 1984 Betamax case. These days, of course,
are different. Our TV overlords continually demand our strict
attention at the same time as they sue innovative companies out of
existence.

Yes, there was such an innocent,
pristine time when TV execs would let things go. It was 1955, a day
gone by when people actually had to get up from their chairs or
couches, cross a room and turn a dial to change the channel on the TV
or to adjust the sound. That was before the late Eugene J. Polley
invented the Flash-Matic, a light-sensor remote control device that
allowed people to do those activities.

The device from Zenith was a wonder.
It was, the ad said, “A flash of magic light from across the room
(no wires, no cords) turns set on, off or changes channel… and you
remain in your easy chair.”

Of course, that wasn’t all the handy
gadget did. As highlighted in the ad, in capital letters, “You can
also shut off long, annoying commercials while picture remains on
screen.”

1955 Flash-Matic ad

Did the industry complain? No, of
course not. Why not? Because that was a very different place and
time. There were only three networks (a fourth, DuMont, was on its
way out). There were only 432 TV stations in the entire country in
mid-1955 — fewer than the choices on any cable system today.
Washington, D.C., the nation’s capital, had four stations, New York
City had six and Los Angeles had nine. Many smaller cities had only
one or two. There was no cable, no Netflix, although for a time
there was Phonevision. That was another Zenith innovation, one that
allowed customers to dial-up (literally, through their phones) movies
to be shown on their TVs in the first pay-per-view model that
broadcasters thought might save it from declining ad revenues. The
Interwebs at that point weren’t even a gleam in an engineer’s eye.

It was the golden age of the Outer
Limits
philosophy of TV: “Sit quietly and we will control all
that you see and hear.” And it has lasted for quite a while,
long past the shelf life of the TV show, right up through today.
Technology has overtaken it, but the entertainment moguls don’t know
or don’t care. They were in control then and want to be in control
now. Let’s look at just a partial record, up to the minute.

While there had always been animosity
between established entertainment businesses and new models
(musicians vs radio, movies vs. TV for example), consumers were
largely left out of it until the whole Betamax kerfuffle. It was, of
course, the move industry and not TV behind the attempt to outlaw the
VCR, but the sentiment was the same — TV viewers should do what they
are told and be grateful. The court upheld Betamax in 1984 on a 5-4
vote but it hasn’t been smooth sailing since then despite the ruling.

Ever since then, through lawsuits and
legislation, the industry has tried, King Canute-like, to stem the
tide of technology and keep their customers at bay by claiming that
without our slavish attention to the adverts, we would lose
commercial-supported TV — sort of ignoring the obvious fact that
however you look at it, just because commercials are broadcast
doesn’t mean they are watched. They can be skipped. Channels can be
changed. Bathrooms may be visited. Snacks may be prepared. No
matter. Lawsuits must be filed, innovation must be quashed and
consumers must be threatened. It has ever been thus since the 1980s.

ReplayTV was one notable victim.
Introduced in 1999, as a recorder without tape, it featured the
ability to skip commercials. As SONICblue, the manufacturer pitched
it: “Topping the charts of user-friendly features, Commercial
Advance(R) lets you choose to skip commercial breaks all-together
when you playback recorded shows. No fast forward, no remote control
interaction at all. Just a split-second “blip” and you’re
right back into the action.”

On Oct. 31, 2001, 28 companies
including the TV networks, studios and cable companies, filed suit
against SONICblue, charging that the new device allowed consumers to
make “unauthorized digital copies” of programming “for
the purpose of — at the touch of a button — viewing the programming
with all commercial advertising automatically deleted.” This
commercial skipping deprived the companies of payment and “diminishes
the value” of copyrighted works, according to the suit, piling
on that skipping commercials “attacks the fundamental economic
underpinnings of free television.” On March 23, 2003, SONICblue
filed for bankruptcy, and the ReplayTV model died.

Between the time that ReplayTV was sued
and the time it died came the clearest expression from the
entertainment moguls of what consumers had the right, and didn’t have
the right to do. It came from Jamie Kellner, then chairman of Turner
Broadcasting System, now the head of a small station group. In an
interview with Staci Kramer, Kellner described commercial skipping as
“theft.” He said: “Your
contract with the network when you get the show is you’re going to watch the spots. Otherwise you couldn’t get the show on an ad-supported basis. Any time you skip a commercial or watch the button you’re actually stealing the programming.”

Kellner conceded to
a “certain amount of tolerance” for someone to go to the
restroom during a commercial, adding: “But if you formalize it
and you create a device that skips certain second increments, you’ve got
that only for one reason, unless you go to the bathroom for 30
seconds. They’ve done that just to make it easy for someone to skip a
commercial.”

Never ones to leave well enough alone, the entertainment industry
went to Congress and persuaded its friendly legislators in 2004 to
draft a bill that, among other things, outlawed skipping of
commercials in TV shows. This was too much for some legislators, and
it was Sen. John McCain (R-AZ) who held up the bill. In a floor
statement on Oct. 11, 2004, McCain said: “Americans have been
recording TV shows and fast-forwarding through commercials for more
than 30 years. Do we really expect to throw people in jail in 2004
for behavior they’ve been engaged in for more than a quarter of a
century?”

No, but if one buys the Romneyian
equivalences, that corporations are people, then the answer is yes.
The TV networks want to do the moral equivalent of throwing Dish in
jail on the same trumped-up charges that were made against ReplayTV
and on the same bases that Kellner outlined.

Look at the language of the recent
suits filed in late May. We’ve seen what NBC said. Here’s a
selection from Fox: “By stealing Fox’s programming to create a
bootleg video on demand service for all network prime time
programming, DISH is undermining legitimate consumer choice by
undercutting authorized on-demand services and by offering a service
that, if not enjoined, will ultimately destroy the
advertising-supported ecosystem that provides consumers with the
choice to enjoy free, over-the-air varied, high quality broadcast
programming.”

Does this sound familiar? Of course it
does. It’s the identical argument, even to the word, that the
networks have been making for years. Watch what we want you to watch
or we’ll be destroyed. The networks are great at making threats.
Viacom threatened in 2002
to withhold high-definition content without copy controls on
broadcast signals. Never happened.

But who wants to take the chance that
one day, disaster will strike? Perhaps the next generation of TVs
will come equipped with motion and heat sensors to be activated
during commercials. That way, our overlords will know who is
supporting TV by sitting glued to their seats and who wants it
destroyed by getting up or changing the channel.

If you think the media moguls should
keep their hands off of your DVR, sign this letter.