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back to article High Court: TVCatchup reproduces copyrighted films ... in buffers

An internet streaming company does reproduce "a substantial part" of films in "memory buffers" contained on its servers when it relays films to users of its service, the High Court has ruled. Justice Floyd affirmed an earlier provisional ruling he gave on the point in a wider case involving UK broadcasters ITV, Channel 4 and …

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Boffin

IPTV via UUCP

No, I don't make copies. I just pipe my IPTV via UUCP connections, I can't help the selective latency.

I love it how the law makes such a song and dance about the precision of words and concepts.

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Anonymous Coward

reasoning

Lawyers will argue black is white for one reason - money if common sense prevailed these parasites would have to get a productive job. Transient copies not intended for storing for future use should be outside the jurisidiction because that is the intent of the law. It is really a pity that it cannot be implemented in that way without Sue Grabbit and Run getting their paws into the job picking nits and getting fat.

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Anonymous Coward

Are you suggesting that it's ok for laws to be ambiguous and open to different interpretations by different judges? This would obviously lead to some getting prosecuted and others being let off for identical crimes.

In which case I suggest you would be one of the first complaining that the law is vague, discriminatory and unevenly applied.

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Boffin

Are you suggesting

@Norfolk 'n' Goode you say "Are you suggesting that it's ok for laws to be ambiguous and open to different interpretations"

Thing is that is EXACTLY how the law is, UNTIL tested in court, at which time anything the court actually decides it becomes fixed and known - this is the very basis of the common law system.

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Stop

@Antti Roppola:

"I love it how the law makes such a song and dance about the precision of words and concepts."

Law = programming, so this is hardly a surprise. The English language is notoriously ambiguous, much of the energy in the UK's legal system is spent on the creation and maintenance of a formal subset of English that is used, effectively, as a kind of programming language. This formal subset of English is what many refer to as "legalese".

The reason for this is to ensure that the laws themselves are consistent, and that they are also consistently applied.

All this boils down to trying to create a human-readable set of formal rules and frameworks within which our society can function adequately. As new technologies and ideas come along, that legalese needs to be updated to meet changes in our society's requirements.

In the UK, laws are often defined by precedent: the first time a judgement is made on a specific subject, that judgement is used as a guide for later rulings on the same, or related, subjects. This system is known as a "common law" system. Other nations take a very different approach, known as "civil law", which places little, if any, emphasis on preceding judgements.

("Civil law" can be very simplistically summarised as: "Anything not officially defined as legal is illegal", "Common law" takes the opposite stance: "Anything not officially defined as illegal is legal." Neither is inherently 'better' than the other, and it's the civil law system which is most prevalent in Western nations, including most of Europe.)

In the UK's common law system, that precedent means judges have to be *very* careful about unintended consequences, so they'll usually take their time over the process. Especially if it's regarding a subject area that is beyond the judge's own field of expertise. A judge ignorant of crucial facts may—and, in the IT sector often does—hand down a decision that flies in the face of all logic according to experts in the field.

This is not the judge's fault, but a fundamental problem with the increasing specialisation in our culture. We really do need to start thinking in terms of specialised judges and, probably even subject-matter-knowledgeable juries. But that will require some major changes to the system.

In contrast, the French (and most other European nations) use a "civil law" system. "Civil law" systems take a permissive approach: "Thou shalt...". The key disadvantage of this approach is that anything not formally defined as legal is illegal.

The UK's "common law" system takes an opposite, proscriptive, approach: "Thou shalt not..." In this system, anything not formally defined as illegal is legal.

As these two systems are not directly compatible, it's led to some interesting issues with (civil law-based) EU legislation, and is one of the reasons why that entity is viewed with so much suspicion by the Brits as successive UK governments have tended to bugger things up wildly when required to enact EU directives. British lawyers simply aren't trained in the permissive "civil law" approach, and many sitting MPs are—or were—lawyers themselves.

*

The above is mostly a collection of gross simplifications and generalisations. Usual disclaimers apply: I am not a lawyer; do not take what I've written as gospel; further research may be necessary on the reader's part.

However, it should go some way towards explaining why legal systems the world over are having so much difficulty coping with the ever-increasing rate of progress. *None* of the world's legal systems were ever expected to react so quickly to changes in society. But unless any of you have some ideas for how to improve these systems, they're all we have.

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Silver badge

Semantical Quibble.

"In contrast, the French (and most other European nations) use a "civil law" system. "Civil law" systems take a permissive approach: "Thou shalt...". The key disadvantage of this approach is that anything not formally defined as legal is illegal.

The UK's "common law" system takes an opposite, proscriptive, approach: "Thou shalt not..." In this system, anything not formally defined as illegal is legal."

I have a Semantical Quibble!

The French approach as you describe it would be, I think, better termed "prescriptive" as opposed to "permissive". "Prescribed behavior" as against "proscribed behavior". I am not sure that the word "permissive" it quite appropriate in regard to a legal system although it might well be, as regards the society that produced or lives in accordance with that legal system..

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WTF?

@Norfolk... Huh?

Seriously you haven't a clue.

I wish I could quote Trbe correctly but they state the exact opposite of what you are suggesting. That is to say that a good law is vague and open to interpretation.

There is a very good reason for this.

A law which allows some leeway to interpretation allows for ambiguous situations to be handled.

An example... A law that says "thou shall not kill" no ambiguity so that if you have a situtation of self defense, you're still guilty.

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Sorry, but

that is simply not a correct summary of the doctrine behind continental law.

Please try again.

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Vic
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> The English language is notoriously ambiguous

I disagree. English is easily used in a way that is not at all ambiguous.

The problem, AISI, is that those that phrase the laws frequently do not apply themselves to ensuring that their output means what they meant it to mean.

The issue isn't language, it's a lack of attention to detail. Given the frequency with which that happens, I'm starting to wonder whether we can still claim this to be accidental...

Vic.

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Reproduced in buffers? That is tenuous at best and the phrase 'cluthing at straws' comes to mind. No doubt the judge will be fooled into thinking that is means enough to switch them off.

Broadcasters should be ashamed of themselves if they can't provide the type of service TV Catchup provides and make money out of it. TV broadcast signals are all around us, so what if i decide to receive it over the Internet via a third party service cos my phone doesn't have a tuner built in.

Stop spending time money and effort going after stuff like this that in the grand scheme of things doesn't matter. TV Catchup is popular because you broadcasters can't come up with a decent alternative.

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Of course I meant clutching at straws. Shame the mod team don't have time to correct careless mistakes :-)

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Pirate

I am stumped that you believe "broadcasters can't come up with a decent alternative".

Use the BBC iPlayer much? Ever?

But the real fallacy of your argument is that what CatchupTV is doing is PATENTLY against copywrite laws. Copywrite laws apply within a single legal area (i.e., the US, the EU, etc.), and as legitimate broadcasters have to respect copywrite laws that means that their ability to serve content outside of that area is effectively nil. That is why the BBC require a UK IP address to use the iPlayer legally (cough, VPN, cough).

So this is NOT about the failure of the broadcasters - as anyone with a VPN knows, the BBC iPlayer works just fine anywhere in the world, providing all the functionality of CatchupTV with no ads. (OK, yes there is that pesky license fee...). The real hitch here is the copywrite law limitations being applied on a country by country basis.

So the real answer is for the UN to take over copywrite law admin and enforcement...lolz... But this one you can't hang on the broadcasters...

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Anonymous Coward

re: reproduced in buffers

so that's the whole of the set top box industry buggered then.

how small does a buffer have to be to count as a buffer?

one frame? two?

DVB-T decoder storing part of a frame while it decodes the rest?

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Megaphone

re: reproduced in buffers

So every provider is breaking copyright law when a Netflix stream is going through their routers?

Hell, TVs buffer incoming signals too.

Going after them because the signals sit in their buffers is about the dumbest thing I have ever heard. They are definitely grasping at straws.

I can wait until a large company, Google, cough, decides to give us all what we have been asking for for years, and starts dealing with production companies directly. Imagine a website where you can sign up, pay 30 dollars (or pounds) a month, and you get to pick which shows you want.

There would be no reason to need commercials, ($30 x 100 million people = $3 billion dollars).

There would be no "Neilson Ratings", we choose what we want, and if not enough people like it, it's dropped. No more "Firefly" issues happening.

They could set it up with an open API for the streaming, so Roku, Boxee, and XBMC could work.

There would be no broadcast restrictions, because it's not being broadcast. (Like HBO, Showtime).

Because they are paying for the shows to be created, they would be able to distribute them however they decide.

It will happen, just not in our lifetime, even though there is no good reason for it not to right now, other than cable companies like the way it is now.

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Bronze badge

This sounds terrible.

I watch programmes to see if I like them - if I do, then I keep watching; if I don't, I stop watching. Beyond the license fee, and the cost of owning and operating a TV set, this costs me nothing (maybe time, in that I sometimes waste 10 minutes watching something I don't like, before switching it off).

Why would I want to pay a monthly subscription on the off-chance that I might like what's on offer? Likewise, why would I pay a monthly subscription for a load of repeats?

"I like the sound of that, let's watch it and see if it's any good," suits me far better than "I like the sound of that, let's pony up £30 to see if it's any good".

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Silver badge

While I like the idea, I'm not so sure it fixes the "Firefly/Babylon 5/Eureka" problem.

Part of the issue for these shows is that someone has to front the upfront money to do the production run before the show broadcasts. If most of the money is coming from a partner who, for whatever reason, has a money availability problem for a given season, it still gets canceled. This is what happened with Eureka. Everyone knew the show would do reasonably well and would make the investment back, but the major partner made commitments to something else and didn't have the upfront money for season 6, so the show was canceled.

I do like that it WOULD solve the Neilson problem - you work off actual streams instead of estimating based on samples.

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Stop

Copyright and patents

Screwing consumers and innovators, again...

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FAIL

Old tune

Pure bread and circus. Must entertain the people, not make them revolt.

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Anonymous Coward

Opening can of worms: Success.

Buffers are bloody everywhere. The whole internet is full of "store and forward" network topologies, meaning that any portion of anything streamed will at some point have been held in some device (times all devices in the path) for some period of time.

If that is the measuring stick, the broadcasters might find themselves subject to inflated licence fees for the things they buy off others to broadcast for every device in their networks and/or nominally in their control for the duration of the broadcast (beaming stuff through satellites, transporting streams digitally from storage to the point where they're no longer liable for increased licensing, and so on). Of course this only works one way, so the reasoning isn't very just.

Then again, the relevant laws are a mite fscked up too. It's unlawful to send people movie streams if that implies the people can start and stop watching at their whim? Awfully close to outlawing the "off" button on the telly. It's not quite that bad, but not very far either. At the very least no more votes as to what film to show in tomorrow's slot on the telly even. For see, the public did get to choose.

But really, it makes no sense to fight at this level of detail. Broadcasters have the rights, paid for them and all (one hopes), and don't like to see people go to some other upstart to watch whatever it was they paid for to show. And I can see why they don't like that. But why do they pay someone else for the rights to show things to people those people presumably like to watch? To also show ads? Make a deal with these people to include their ads and no others in the stream. Maybe a kickback to them for getting even more viewers. That ought to cover it, no?

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FAIL

Next from the IP fetishists' league.

It has been found that significant portions of a written work are encoded in the outgoing photon bubble modulated by reflection off printed paper pages, which clearly and undeniably constitutes illegal broadcasting of copyrighted work without license. It is now unlawful to open a book outside of a fully closed room. Special "reading burkhas" are being offered by content owners for a modest fee. In case books are opened under a clear sky, damages due are quadrupled.

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Not so far off the mark when you consider the PRS.

You need a licence to play the radio in a workshop , factory etc because it counts as a public performance, despite the fact that anyone listening could just listen on a personal radio instead.

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Vic
Silver badge

> Not so far off the mark when you consider the PRS.

>

> You need a licence to play the radio in a workshop

It's worse than that.

Some friends of mine run a PA hire shop. They rent out equipment so that musicians don't have to buy their own.

The PRS regularly sends threatening letters claiming that they need a licence. But they don't, because they don't make any public performances - they run a hire shop.

I wonder just how many firms simply fold and pay the PRS their danegeld...

Vic.

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Alert

And don't whistle ...

recall the case a few years back when the PRS sent out a circular advising firms that workers whistling popular melodies of the day within earshot of customers needed a license ?

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Anonymous Coward

Gotta love it when judges come up with the decision they want, then tortuously bend the law until it fits their decision...

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WTF?

One sided reporting

This whole article is so one-sided it is absurd and if you had read the court decision as I have tvcatchup.com have come out of this victorious and the broadcasters et al., have lost a significant ground breaking case here and according to tvcatchup's lawyers and I quote, "This is a ground breaking case and puts an end to a number of points which had been the subject matter of this case.

The substantial victory for TVC vindicated the position they have always taken that their service was perfectly lawful."

http://www.hamlins.co.uk/site/firmnews/Catchup_With_Broadcasting_in_the_Internet_Age

This is going to take years to go to the Europe and I guess by that time tvcatchup will be in a very strong position, so the broadcasters have failed miserable to stop a new and exciting service, damn good job as it is a damn good service.

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Thumb Down

Outlaw wrong again?

As with the first ruling, TVCatchup are putting a different spin than this article from outlaw. As do their lawyers: http://www.hamlins.co.uk/site/firmnews/Catchup_With_Broadcasting_in_the_Internet_Age

If I recall correctly outlaw also redacted their original article on the first ruling due to it being inaccurate? Either way I have no doubt TVCatchup will be around for a long time yet, I will trust their word over the spin this ruling gets as it was incorrect last time :)

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This post has been deleted by its author

FAIL

Yet again, TVC beg to totally disagree

Every time you report on TVC you bang on about their court losses.

Every time TVC claim these court cases to be great victories, roll out new services and continue to operate.

http://forums.tvcatchup.com/showthread.php?8152-TVC-victorious-in-legal-dispute-with-broadcasters

[url=http://www.hamlins.co.uk/site/firmnews/Catchup_With_Broadcasting_in_the_Internet_Age]TVC's own lawyers[/url] say "The substantial victory for TVC vindicated the position they have always taken that their service was perfectly lawful."

So come on Outlaw/ElReg, get some real reporting done, I know legal decisions can be hard to decode and can mean wins and losses on both sides, but TVC services grows, expands despite your accesertion that in every rulling so far they have fallen and hit their heads on the way down. Clearly it ain't so, so start doing some proper work when reporting on this issue, or just stop reporting it all together.

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Not sure what to think.

On one hand, as Martin Summers points out above the TV companies should be doing this for us anyhow rather than trying to clamp down on someone else doing it.

On the other hand -- who wouldn't guess that the business model of re-transmitting someone else's programming and adding your own adverts to it was likely to be found in some way illegal? I do realise that the adverts are paying for the extra work the TV Catchup people are doing to bring the service to the customer, and that's a value-add, but without working out a deal with the content producer it does seem rather like a hijack of someone else's content.

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TVCatchup do not add adverts

@Cameron Colley - The TV streams as streamed by the original broadcasters are sent in full the person watching, no adulteration at all, no adverts.

TVC however, do show you an advert BEFORE they stream, but if you want to watch that for 10 days straight, no problem, and no interference from TVC in the stream at all.

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Linux

PBS style adverts...

Yeah. I think this sort of situation where a "PBS style" of advert is added and the original stream is kept intact should be perfectly legal. Don't expect it to be adjudicated that way tough.

Don't think John Simm being the adjudicator would even help. '-)

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And that's different how exactly?

Maybe slightly in execution that's all.

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Different how?!

@Gordon 10 - if I charge you access to my night club I charge access to my night club, but I don't chaperone everyone in the club and insert words into their mouths.

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Coat

.....but

What if Samsung decided to show their own product ads streamed to a Samsung network connected TV before displaying the Free to Air content.......and just so you don't miss any of what it was you turned over to watch, the TV stores the target channel stream in the built in recorder til the ad completes?.......is TVC any different to this?

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@Lydonator nothing illegal in what you describe, but no thats not what TVC do, in so much as there is no buffering in the way you describe, if you miss some content because you were watching TVC's ad, then you miss it.

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Facepalm

@yeahyeahno

My post was merely proof of concept and is not meant to suggest that such a thing will ever occur. Memory buffer equates to HDD buffer, 3rd Party(Samsung or A.N. Other) equates to TVC's pre-stream ad. My point being, Samsung or A.N. Other mahoosive corporation would get away with it and for reasons 2-Fold......1. It's easy to squash the little man.....2. It's a TV, somehow it just feels more "acceptable" when it's an established medium.

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@Lydonator

I see nothing illegal with what you describe. Of course if Samsung did decide to do this, nobody would buy Samsung TVs any more because they can get a TV from a competitor that doesn't insert ads when turned on.

TVC doesn't have any competitors yet. Once (if) the broadcasters catch up and start doing live IP broadcasts as well, TVC is likely to lose a lot of people because the broadcasters can do with less ads, better quality, etc. at the same profit margin

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No serous competitors

The broadcasters do live broadcast as in the ITV Player (when it works, but I will come back to that) and the iPlayer both do.

The ITV Player is the biggest piece of junk that you will find as it is forever breaking down and then you must sit through three adverts again to watch a stream. The Rugby World Cup was a joke on the player as in almost every game it broke down. The BBC as well have a habit of breaking down in major broadcasts like last years Football World Cup and Wimbledon, as they just cannot handle the numbers.

This is why their are services like TVC who do it far better than the original broadcasters can do it. As for other competitors apart from the broadcasters there will be none at least for the next 4-7 years while the court case of TVC is finished and this is the reason why TVCatchup is celebrating as they almost have a carte blanche situation to go and consolidate and build their service. This is something that the author OUT-LAW.COM has totally missed, still I suppose doom and gloom sells.

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bep

This is the point, really

You have to be the best source for your own content. Then you own the content. In the digital age, there is no alternative for you, if you screw it up, someone will do it better and reap the rewards.

The broadcasters are slow to face the facts that it's not enough to 'own' the rights to the content, they have to do the best job of delivering the content, and not rely on the courts to protect them. The content owners and the broadcasters want to maintain the distinction between content and broadcast, but the punters just want to watch a football match.

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@Lydonator

Like the way that the $79 kindle shows you an ad before you read the book that you paid for ?

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Bronze badge

"a substantial part"

How is 40 seconds of a film "a substantial part" 40 minutes of a film only an hour long would be a substantial part but 40 seconds of even a 30 minute program would not be a substantial part to any reasonable person who wasn't working in the interest of the TV production companies.

Goodbye TVcatchup you were a good service but i don't see you coming out of the winning side of this. Time to buy a slingbox i think

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Pirate

If, as the fifth commenter says, "Law = programming", then the language is Malbolge. Or possibly an extremely prolix variant of COBOL.

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@mark l 2 - If this report wasn't so utterly biased, and the source so repeatedly anti TVC, you would almost for certain come to a very different conclusion.

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I don't read the article as anti-TVC, I read it as anti-court stupidity.

A buffer does not a storage unit make. My FIOS DVR will buffer a great deal more than 30 minutes when I'm watching a show, and no I don't mean recording it. I mean I flipped to the channel was watching the show, got interrupted with a phone call for 40 minutes and decide I want to rewind to where the I got the call and watch it from there. Granted FIOS as a cable provider has a license to do that, but that buffer is still different than when I hit the record button. The buffer goes away under various conditions (exceeds the amount of space available, overruns a spot where I'm set to record on two different channels, I flipped stations twice without coming back to my buffered show) while something I have actually recorded and stored does not.

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So how many seconds?

So exactly how many seconds of buffering constitutes and illegal copy? According to the court, 30 seconds is too much. Odd decision, almost as if the judge were unaware that most internet video transmission systems buffer 30-60 seconds - or as if his convoluted logic was intended to find any excuse to ban a service that the broadcast networks don't like. But let's take it to a logical conclusion. There are many buffers in a video transmission system from source to eyeballs. How many seconds of buffering is too much? Is it 10? 5? 1? 0.1? I guess the engineers will have to take this question to the courts over and over until they find the answer. Sounds like a lot of employment for lawyers!

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FAIL

If you make 2 seconds illegal, that would make satellites in geosynchronous orbit illegal. Just for one thing...

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The broadcasters are only going after tvcatchup in such a big way because tvcatchup is doing exactly what they wanted to do and were refused permission for.... that is present all Free to Air content in the UK in one place running under one interface, it was ruled that them doing so would break either monopoly or competition rules (I forget which) and that is the reason why each broadcaster has their own streaming / on-demand system.

the broadcasters could see the logic behind pooling their resources and creating one big system instead of lots of little ones, combined with simplicity for their viewers (only register in one place to watch all the channels rather than register in 4 or 5 different places and have to use different technologies for each one).

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FAIL

In the meantime consumers will go where they can get this programming anyway: TPB. Or any of the dozens of other streaming services based in Nicaragua, Romania...

As long as the system is perceived as limiting it will be worked around by able people, the more it is limiting, the more people will be interested in working around it.

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Anonymous Coward

Real content

Most content of most TV is generated/provided/created by third party independent producers (e.g. Hat Tricks makes Have I got News)

If TVCatchup was to make arrangements with these producers that would cuase this case to fall apart

So the next one into the ring should start with that, lets offer these independents something from our click thru/subscription model...

BTW TV is the new radio, for years radio has had hundreds of channels most of which I ignore for my one or two favorites, thats why radios with push-button presets never sold, most people tuned into their station and stayed there. Now my TV has 300+ channels and I see I only watch about 4 of them

And the same could be said of the internet, trillions of pages but after facebook I only read a couple

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Anonymous Coward

Bank cashier...

If this is copyright infringement then surely by the same logic a bank cashier is guilty of theft when they count (the bank's) money and hold it in their hands.

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