Crazy though Kellner’s argument may sound, it’s not too far off from the one being made in a lawsuit against ReplayTV, a company which, like its better-known competitor TiVo, makes digital video recorders for home use. While these products have been slow to penetrate the market, ReplayTV’s new line of recorders includes a feature that has Hollywood up in arms: With the simple push of a button, you’ll never have to watch commercials on a recorded program again. Ever.
To the plaintiffs in this case, which include all six broadcast networks, several cable channels (including those run by Turner), and most major entertainment conglomerates, commercials are not just their chosen method to generate revenue, but something viewers have a responsibility to watch. While they’re willing to cut a little slack to those of us who have gotten up to relieve ourselves during a commercial break–“There’s a certain amount of tolerance for going to the bathroom,” says Kellner–Hollywood executives apparently believe that turning on an episode of “Friends” contractually binds us to sit through the latest spot for McDonalds. This argument, however, didn’t fly back in 1984, when the Supreme Court’s Betamax decision gave consumers the right to record programs (including the right to fast-forward through them). So this time around, Hollywood has rested its legal case on the qualitative difference between ReplayTV’s “Commercial Skip” and a fast forward or mute button. While the latter two can potentially be used for all sorts of harmless purposes, they argue–like skipping ahead on a home video or turning the sound off on a show to answer the phone–the ReplayTV technology exists only to block commercials. ReplayTV thus alters network content–a violation of copyright law, says Ron Rauchberg, an attorney representing the plaintiffs. “They’re making copies of our material and delivering it to consumers so that they can make money by cutting out the commercials.”
The plaintiffs believe that if ReplayTV and future knock-offs spread, it could spell the end of their business. But that’s the same claim they made 20 years ago at the dawn of the VCR. Instead of financial disaster, the Betamax decision brought billions of dollars into Hollywood by helping open new markets for videotape rentals and sales. And digital technology seems likely to open up new markets of its own. Video-on-demand, most notably, could potentially reshape the way we watch TV. Already, a few million digital cable users can order films to watch at home whenever they want, eliminating the need to drive to Blockbuster or wait until a pay-per-view showing begins. There’s no reason that same model couldn’t extend to every program on TV. Would you be willing to pay 50 cents to watch “The Simpsons” commercial-free, whenever you wanted?
Nor does digital recording signal the end of advertising. The “Survivor” series, for instance, presents a partial model for the future of TV advertising, populated as it is by brands such as Doritos and Target, which pay to be featured in the show. The “contract” that compels viewers to watch 30-second spots seems less compelling–literally–as the shows themselves become more like ads.
Despite such possibilities, the broadcast networks and most cable channels seem unwilling to wean themselves from the 30-second advertisement model that has supported television for decades. Faced with the option of radically altering the way they do business or paying lawyers to try prevent that day from coming, the nation’s media conglomerates have chosen the latter. Rauchberg’s reply, when asked about other options for making money from ReplayTV technology, is revealing: “It’s not up to ReplayTV to force us to adopt a new business model, even if we could,” he said. It is the very nature of capitalism that new technologies advanced by young companies, like ReplayTV, inevitably force old industries to adapt or die. But the entertainment industry has its own rule: Don’t adapt–sue.
