Channel 9 appeal judgment day today

[pvogel]

I see from the Federeal Court website that a decision was handed down on Nine vs IceTV http://esearch.fedcourt.gov.au/Esearch?p=further_details&det=coa_listings&mat_id=3525133

What was the outcome?

Has it been published?

Thanks,

Peter Vogel

[prl]

Yes, the judgment is on AustLII: http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/FCAFC/2008/71.html

My reading of it is that the appeal succeeded and the case goes back to the original judge to be reheard.

Not a Lawyer.

[neilius]

Curses upon channel Nein.

Reading between the lines on this issue, I think they are harassing Ice TV because the information in the EPG helps us circumvent their ads which hurts their revenue.

My guess is that Nein would use their large financial resources to harass any company that provided this information.

Think about the recording companies lawsuit against Napster.  Napster was a single target that was easy to hit.  They got shut down.  But now you have peer to peer filesharing programs like Limewire and Bit Torrent.  There's not one single target.  So it doesn't matter how deep the pockets of the litigant - there's so many people using the technology, you will never be able to shut it down.

Similarly with EPG's.  I gladly pay my subscription to Ice TV.  I'd gladly pay double.  I love Ice TV.  But in the long term, the best way to defeat the information nazis at Nein is to supply the EPG info from a multitude of sources.  Nein won't be able to sue every viewer in Australia.  If there is some sort of peer to peer technology where we all participate in providing and distributing the information, then Nein can spend al the money they like, they won't be successful.

Perhaps Ice TV should look at a framework where they license the technology to us, but not the information.  So that they're not officially the providers of the EPG information - just the providers of software that handles EPG info provided by a myriad of suppliers.

The bottom line for me is that I want to "stick it up" any nazi organization like Nein that is trying to restrict the flow of informaiton, and force me to watch their inane, low IQ, moronic ads.

[prl]

...
Reading between the lines on this issue, I think they are harassing Ice TV because the information in the EPG helps us circumvent their ads which hurts their revenue.
...

There's currently nothing in the IceTV EPG that helps with ad skipping that isn't already in the FTA EPG that Nine (and the other commercials) already broadcast, so the motivation may be a bit more complicated.

The commercials do want to maintain control over the information, and there was a June 2007 press release and some interviews at the time from FreeTV (the commercial TV broadcaster's lobby group) that appear to suggest that the introduction of TVio in Australia might mean that some of the EPG information was only available to TVio and similar subscribers. The FreeTV interviews at the time seemed to suggest that the EPG licenses would only be granted to PVRs that had no skip function, and limited fast-forward speed. From my reading of the DVB-T standards, they do support encryption of the Event Information Table (program times, titles, episode names & synopses).

I'm not sure what happened about that because there was another Free TV press release in November 2007 that said that the 7-day EPG would be available free.

[neilius]

But the bottom line is still the same.

The broadcaster wants to restrict access to EPG info because they don't want people avoiding their ads.  The Tivo was changed so that when you hit the ad skip button it actually displayed some other ads.  The broadcasters admission that they don't want the EPG info available to any device that can skip ads is a tacit admission of what this is all about.

The broadcasters want to retain their "right" to spew their ads into our living rooms and will do whatever they can to stop us blocking those ads.

My suggestion to Ice TV is to license their software to us, not the EPG data, and modify the model so that we all can contrbute to and independently rebroadcast the EPG info.  If the data is coming from several thousand different places, and all Ice TV is doing is licensing their own software, then there's nothing Nein can do about it.

[prl]

My suggestion to Ice TV is to license their software to us, not the EPG data, and modify the model so that we all can contrbute to and independently rebroadcast the EPG info.  If the data is coming from several thousand different places, and all Ice TV is doing is licensing their own software, then there's nothing Nein can do about it.

Possibly not an "out":

Making or possessing device for making infringing copy

Indictable offences

........(1)  A person commits an offence if:

................(a)  the person makes a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and

................(b)  copyright subsists in the work or other subject‑matter at the time of the making of the device.             
........(2)  A person commits an offence if:

................(a)  the person possesses a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and

................(b)  copyright subsists in the work or other subject‑matter at the time of the possession.

........(3)  An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

Note:          A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).

Is what you suggest covered by this? I'm not sure. I wouldn't want to find out the hard way that it was :)

[neilius]

Prl

Thanks for the excellent details.

The crux of the act is "intent".

If the "device" (software) is intended for a community to share information about their favourite TV shows - rating the shows, commenting on episodes, and noting when they think the next episode will be shown for anyone who happens to be interested, then you could establish a case that the "device" is a mechanism to encourage community discussion, not to infringe copyright.

E.g. there's no law against me saying publicly "I think chanel nein news is of a poor quality and aimed at people of primary school intellect.  See for yourself by watching channel nein between 6pm and 6.30pm tonight".  Now if you format what I've said as an XML snippet, and publish it on an RSS feed, with exactly the same content, you're not breaking any laws.

In fact, it might be great to be able to have a button on your PVR which says "This show sucks" or "I love this show" and publish it so everyone in the country can see how pathetic some TV shows are, or how good others are.

In fact, Ice TV Interactive already has most of the hooks in place to do this with their "I watch this" thingy.

[rant]
The reason for my passion in all of this is that I really find it unacceptable that a corporation is trying to force me to watch their ads, and is prepared to litigate against Ice TV to further their goals.

It just brings out the anarchist in me   :(
[/rant]

[prl]

Hi nellius. The problem is that if you look at some of the IceTV synopses, especially for commercial current affairs programs, they're not that far removed from your Nine News synopsis. They certainly aren't what the broadcasters would say publicly about the shows :)

However, from the appeal judgment, that doesn't seem to be the whole issue. My reading (with limited understanding) of the appeal judgment is that IceTV may have breached copyright existing in the times and titles alone. I'm not sure though, whether the judgment says that IceTV did breach copyright, or whether the original judge has to reconsider whether they did or not.

[prl]

IceTV's response to the judgment is here: http://www.icetv.com.au/news/?p=162

[dJOS]

I sent the following email to Minister Conroy: (minister@dbcde.gov.au)

Dear Minister Conroy,

            I'm writing this email to you to express the immense frustration and disgust that I and many others are currently feeling over the outcome of today’s ICE TV vs Nine TV Guide Copyright case.

I am the owner of a PVR and a Microsoft Media Center PC who has been forced to resort to using the ICE TV Service to facilitate the recording of TV shows â€" I don’t object to paying for Ice’s Guide, what I do object to is the ridiculousness of the TV networks in Australia being able to claim copyright over what is essentially a collection of facts which should be public domain (like in every other country with TV broadcasters … yes, even in the USA).

The TV stations being allowed to claim copyright allows them to refuse to provide this information to interested parties unless they meet their excessive and draconian usage policies. Case in point; Australia is the only country in the world in which Microsoft is unable to supply an Electronic TV Guide to it’s Media Center customers because the TV stations don’t want people recording TV and potentially skipping their ads.

I implore you to introduce into law the following to fix FTA TV in Australia:

• Mandate that all Digital TV Broadcasters provide an unencrypted, accurate, rolling 7 day EPG via the Australian EIT (part of our DVB-T standard) System.
  
  
• Mandate that This EPG Data be supplied to any interested party that requests it without any re-transmission or usage restrictions (schedule info should be public domain).
  
  
• Mandate that broadcasters stick to their published guide schedules â€" Currently the TV stations deliberately run over time by up to 15+ minutes in an attempt to keep viewers on their network. In the UK and Germany (and other countries) this sort behaviour is not tolerated.
  

Regards,

Derek

Im happy for folk to re-use any bits of this they like.

[neilius]

Here's my letter. 

Dear Minister

I draw your attention to the results of today's Copyright case between Ice TV and the Nine Network.

The basic issue here is that (unlike any other modern country) Australian TV stations are claiming copyright over their programming details (EPG).

I have a personal video recorder, and am quite happy to purchase this info from Ice TV since it allows me to conveniently plan what I watch on TV, at a time of my choosing.  I can't get this information for my PVR anywhere else because the commercial broadcasters don't want people like me to have it.

The Nine Network is trying to control this data, and encrypt it, so that it can only be made available on devices of their choosing.  Presumably so that they can force viewers to wtach ads, and exclude any device that can skip ads.

This can't be allowed to happen.  It requires government regulation to stop the potential abuse of power by the three major commercial TV networks.

The legislation required would be simple, and would be a victory for those who value the free flow of information:

1. That all digital tv broadcasters must freely provide an accurate EPG at least 7 days in advance, wihtout restriction or encryption.
2. That broadcasters must adhere to the times they advertise, rather than deliberately delaying show times to manipulate audiences.

Most other countries in the western world have similar legislation. 

Without it, we run the risk of strongly funded TV networks trying to manipulate audiences by pursuing cynical litigation against smaller players such as Ice TV.

This is one David -vs- Goliath struggle that David must win.

Kind regards
etc...

[impact]

The world we live in is just completely stuffed...

So now I can see we are all just going to be rooted. bottom line.


This case apparantly goes back to award damages to Nine (what a joke). The judge will no doubt award damages and legal costs probably amounting to millions to be paid by icetv. Most likely crippling icetv towards bankruptcy.

Yep I am sure another appeal can be mounted - but quiet often judges will ask for the money of damages etc to be placed in trust, while it awaits another 12 months for another appeal, thus likely to still cripple the only valid service around.

Of course, this decision will scare off all the other (inferrior) free services... leaving no guide data for Australian TV. 

So we all loose out. Guide data services move to the underground and become a source of criminal fund raising... just like buying Underbelly DVD's in Victoria (LOL)

And then ch9 will save the day by taking over ownership of IceTV, obtaining all the details of the subscribers of the service and attempt to prosecute them just like the RIAA and MP3 music copyright infringements...

Then Ch9 will either just shut it all down or charge $50/week for the privlege of getting out of date / wrong time electronic TV Guides.

So do we just send a copy of the TV Week to India each week for some person to type/scan in...


Oh well the future is not looking that good eh?

I just hope somebody see's sense of all this. Have often thought of entering politics, I know the first act of parliament I would put in place would fix this once and for all and put egg on the faces of a few corporate bullies.

Geezee....

[mtb]

For what it's worth, my letter going to channel nein, plus copied to a number of advertisers and the minister (with appropriate covering letter)...

The Directors and Chief Executives of Channel Nine
<snip>

Dear Sirs,

I find it difficult to determine if your company is just completely out of touch with the modern age or if you are simply hell bent on self destruction.  I refer, of course, to the current on-going saga of your “supposed” copyright law suit against IceTV and again have to ask... are you totally blind or just plain stupid?

My family owns a PVR – a digital set-top box with embedded hard disk and twin receivers.  We do not buy newspapers, prefering to obtain our news and associated content on-line and are therefore subscribers to the IceTV Electronic Programme Guide data.  We enjoy the flexibility of time-shifting our viewing to fit in with our busy personal lives, with the additional benefits of increased capacity for on-line storage, on-screen guide/information and more advanced recording features.

The use of certain software on our personal computer combined with the IceTV data permits us to record numerous programs and series without fear of missing episodes due to scheduling mistakes, alterations or late changes, by checking the data daily against our list of favourite programme titles, actors, genres and/or other attributes and then automatically setting the timers on the device without human intervention, for viewing when convenient.

As a direct result of this almost flawless recording system we have found that we are probably watching, as a family, about 30% more television than we did when we used the limited VCR and tape approach – we still rarely watch live TV, other than the news, but then again, we didn't before either.

So we are at a complete loss to understand why you should be wishing to destroy a company which is essentially helping to ensure that we, as viewers, are increasing our viewing time rather than reducing it;  unless, of course, this law suit has little to do with copyright are is more about the mistakenly related subject of advert skipping.

It has been suggested for some time and in many quarters that this is the real reason for the attempt to silence IceTV – because of the misguided belief that EPG = Advert skipping... what utter rubbish!  If you have been given this impression that the EPG is the sole reason for ad. skipping then you should get some new, competant, technical advisers – the humble VCR provided people with the ability to ad. skip years before the invention of the internet, never mind the EPG – it was called the fast forward button.

The humble EPG is nothing more than that... a programme guide, in electronic form, which enables users with the right equipment to make more accurate and relevant recordings, rather than relying on the less accurate and more out of date printed versions of the information.  While the various website versions of the TV guide are more accurate they are still inadequate for the task currently fulfilled by the IceTV data as they require human scanning - time consuming, innefficient,  ineffective and error prone.  Even those which provide some degree of searching and favourites are limited in functionality and there is still the need for the human to transfer those results to the recording device.

The actions of the viewer, irrespective of the technology, will not change overnight.  For ourselves, we still do sometimes ad. skip and sometimes we don't, just as we did with the old VCR.  Occasionally we use the breaks to make a drink or go to the toilet or make a quick phone call and sometimes we watch the ad's so we know about forthcoming events in our locale or actually see a product we are interested in (it does happen!). 

Your company should be adapting to this technology rather than trying to smother it;  you could be in discussion with IceTV, learning from them rather than trying to kill them off.  For example, has it even occurred to you to sell the final ten seconds of any ad. break at a higher premium since even the ad.skippers are likely to see that part as they try to find the segment start, whether on disk or tape?  What about the entire concept of the ad. break, how 1970's is that?  You need to start thinking outside of the box, rather than hiding within it.

You could already be providing the EPG data in ready-made form, perhaps with sponsorship messages appended to the extended information, to a company that seems to have the interest of your viewers closer to its heart than your company seem to have them.  You should be embracing a company which has helped increase the number of viewers, rather than alienating them.

Had the commercial stations come up with something... anything... better than the utterly pathetic Now and Next program guide (for want of a better phrase) in the first place, IceTV would likely as not have even have got off the ground.  You should be looking to them as saviours of free-to-air, commercial television rather than deperately trying to sue them and every other upstart who dares to think up something new which goes against your “tried and tested” (and boring) approach.

It was your own failure to have the foresight and desire to improve the package delivered to the digital viewer that created a void which IceTV filled, your own intransigence which threatens to make you an anachronism – a twentieth century TV station floundering in the twenty-first century content provider world, trying to survive by litigation and bullying the competition rather than coming up with new and creative ways to genuinely improve the package and their market share, in a world where the fickle viewer has so many more options and sources of content and only the best can survive.

Let me be honest, we don't watch many Nine series, just two or three perhaps (when you finally get round to (re)scheduling them), over half our weekly viewing comes from the ABC and SBS.  Where you do win though is with the occasional content, such as movies and features, which get picked up by the data scanning for actors, genres and etc. - this is where you can sometimes more than double the amount of Nine viewing in our household and generally content we would not generally see, were it not for the PVR software picking it up automatically.

So what of the future?  If IceTV continues but without your blessing and content, then you, and subsequently your advertisers, will lose viewers such as ourselves because your data will not be available to scan and set timers against.  If IceTV is driven completely out of business, you will still lose us as viewers and suffer our antagonism as well;  we shall find new sources for the SBS and ABC data and alternative sources for the lost content too, be it DVD, borrowed media or, dare I say, perhaps even downloading via torrents if all else fails, we have gone too far down the automatic recording path to be expected to go back to reading the TV guides, on-line or otherwise.

So, please, drop the bully boy image that you seem to relish so much, stop this ridiculous lawsuit which can only harm the industry in the long term and sit down with the right technical people, the IceTV people, and work our a better solution for all.  Look for new ways to deliver your advertiser's messages – PVRs are here to stay, irrespective of EPG content, and as with the VCR ad. skippers will remain ad. skippers however they record their content.  Adapt to the new technology and the benefits it can give you, the advertisers and the viewers, before you become so out of touch that you cannot recover.

As for encrypted EPG's?  Don't waste your time, all systems can be cracked eventually these days.  Anti-skipping PVRs?  Yeah, right!  Assuming you can actually get enough manufacturers on board, have you never heard of firmware updates?  Mod. chips?  The gaming industry has been fighting this losing battle since day one, just like all the copy protection schemes that have gone by the wayside.  As long as there are alternatives available, you won't stop people getting their data (and content) elsewhere.  In the current age, you have to live with the technology of the internet, not fight against it, or you will become irrelevant... and lose... and will your advertisers.

One final point.  I am copying this letter to the Minister for Communication and all the advertisers whose products and services are featured within those channel Nine programmes that we do watch, perhaps if you won't listen to us, the humble viewer, then perhaps they can make you listen to reason – because they will suffer from the dwindling numbers too – as you stumble blindly forwards towards oblivion.

Welcome... to the real world.

Yours faithfully,

[dJOS]

Very well put!  8)

[mtb]

My suggestion to Ice TV is to license their software to us, not the EPG data, and modify the model so that we all can contrbute to and independently rebroadcast the EPG info.  If the data is coming from several thousand different places, and all Ice TV is doing is licensing their own software, then there's nothing Nein can do about it.

I've been playing and researching the idea of a P2P data collection mechanism around in my mind from the moment I read this news, sadly it is not an area I have any knowledge of or experience in programming in... but that can change!