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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.”
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.