New Toys and the Law

Okay, I'm about to spend a bunch of money. Not only has Apple announced the iPod touch, but TiVo just announced that TiVo To Go and Multi-Room Viewing will be available for the Series 3 and TiVo HD models (see Gizmodo).

So you know why as an engineer I'm totally geeked out about the new TiVo development, but what does this have to do with the law, you may ask? The whole reason these features were not available on the Series 3 so far is a combination of Copyright, Contract, and Telecom Law.

(NOTE: If anyone posts asking for it, I will provide citations, but I'm going to be lazy because I don't think you really care)

A few years ago, the FCC ratified a deal between the cable and consumer electronics (CE) industry that would allow CE to make televisions, VCRs, DVRs, etc that would work with digital cable without needing a separate set-top box. Unlike the Series 2 TiVo, which only has to obey Copyright law, but is not constrained by contract or regulations, the Series 3 TiVo (and now TiVo HD) are made under these FCC rules, and therefore have to play under those rules.

The FCC made sure that most cable content could not be tagged "copy never" by a cable operator, but the cable industry still had control over what kinds of outputs were "secure enough". For a number of reasons, some contractual, some business, the cable industry is reluctant to allow an output unless the content industry agrees. However, the FCC left themselves the authority to hear appeals on outputs.

Earlier this year, a different output protection technology (DTCP-IP) actually invoked the FCC appeals process. Then, before the FCC could rule, the cable industry and the DTCP people came to an agreement and the DTCP people withdrew the petition. Presumably, this helped pave the way for the TiVo people to come in, and get their stuff approved.

There was a rumor circulating that one of the reasons the cable industry was reluctant to approve DTCP-IP or TiVo To Go has to do with a "Most Favored Nations" clause in another contract. I'll devote another post to how MFN clauses work and why engineer/lawyers are much better off for understanding math and logic better than most lawyers.