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SOC: Selectable Outrage Control - July 22, 2008

The folks over at Ars Technica, Techdirt and other outlets are having some fun with an encounter Ars-man Matthew Lasar had the other day with two MPAA officials over the MPAA's petition to the FCC for a waiver of the agency's ban on the use of selectable output control. In Lasar's telling, the MPAA folks come off as vaguely hysterical (or worse) as they try to explain how it is that the studios' request use of SOC has nothing to do with denying people the right to record early-release VOD movies using a DVR.

According to Lasar:

I kept asking them how MPAA's member studios planned to limit unauthorized copying without somehow inhibiting the recording capabilities of DVRs. Our nice talk started getting a little heated at that point. "I can't emphasize this enough," Oster finally exclaimed. "We've hit on this a number of times so you might sense some frustration in my voice. 'Recording'—take it off the table. Put it out of your mind. This has nothing to do with recording at all in any way."

"Okay. I guess I'm confused," I replied. "What is selectable output control about then?"

"It's in large part, first and foremost, about the fact that our industry has a multibillion-dollar theft problem, which is that billions and billions of dollars worth of film content is stolen every year," Oster replied.

"How is it stolen? What's the mechanics of its being stolen?" I asked. "What happens?"

"It comes in many forms," Dean Garfield interjected. "It comes in camcording."

"Did you just say the word 'recording'?" I asked.

"No!" Oster intervened. "He said 'camcording'!"

"But isn't that just basically recording?" I begged.

"No!" Oster insisted. "What we want is to offer consumers high-definition content earlier than they can today. That's what we want to do! We want our studios to have the flexibility to put in place business models that allow them to offer high definition content on demand to the home, earlier than they do now. Period! Full stop!"

I hate to find myself seeming to defend the MPAA, which certainly doesn't need my help. Nor do I wish to pick a fight with another reporter. But in the interests of clarity in this important debate, I think it's worth acknowledging that on this particular question--the question of recording--the MPAA officials do have a point.

You cannot, in most cases, make a permanent recording of VOD or PPV programs now, regardless of the release window. Like them, the new early-release HD VOD offerings the studios are proposing in their petition will almost certainly be flagged "copy-never" or "display only." On that front, the use of SOC by the studios would not deny consumers a right they presumptively have, or a capability they currently enjoy. The issue for the studios is whether unprotected outputs could be used to record the early-release content in ways that are not currently permitted and then use that recording as the source for additional unauthorized copies.

Whether that ever really happens--or is likely to--is a debatable point (as many commenters to the FCC point out). But it's a separate point from whether use of SOC would prevent consumers from making copies they're otherwise permitted to make.

The bigger question is whether the use of SOC described in the MPAA petition could turn out to be the proverbial camel's nose under the tent (as many commenters have also argued) that could lead to its broader application.

The Digital Transmission Licensing Administrator (DTLA) points out, for instance, to cite one example, DVR's can be used for things other than making permanent recordings, such as pausing live transmissions to be resumed later. Should all DVR functionality be blocked by the use of SOC, reasonable consumer expectation could end up being thwarted.

From DTLA's filing:

SOC should not be permitted to interfere with home networking or DVR functionality. Consumers should be able to view early window content using a home network in any room of the house, or simultaneously in every room of the house. Nothing inherent to the SOC waiver needs to preclude such ordinary consumer scenarios as a family member watching part of the movie from the kitchen while preparing food, pausing the movie on a DVR to take a phone call, or watching the end of the film in the bedroom, while other family members continue to watch in the family room in real time. Such scenarios will become increasingly commonplace in consumer homes as the industry innovates new features into home networked products. SOC should not erect artificial roadblocks to these and other innovations, so long as the basic technical protection criteria are met.

There's also the question of whether moving up the VOD window really represents a "new business model" compelling enough to justify changing the current regulations. Especially when some distributors have already moved up the window without worrying about selectable output controls.

From comments filed by Public Knowledge, EFF, Consumer Federation of America et. al.:

Merely shifting forward the release date for the same content in an existing delivery mechanism is not a "new business model" from the consumer's perspective. First, the offered content – the movie itself – is fundamentally unaltered. No content or value has been added beyond the ability to legally view it outside of a cinema but before it is distributed on DVD. Second, the distribution channel is unchanged. Consumers have been able to order VoD and pay-per-view through their cable companies for many years, including high definition theatrical releases. Allowing this type of marketing choice to qualify as a new business model eligible for a waiver will open the door to numerous future attempts to burden consumers with unnecessary restrictions.

Second, shifting the release window is not new. Many media and entertainment companies are already releasing VOD offerings at the same time as on DVD or earlier. Content producer Time-Warner has announced a shift to the "day-and-date" model with VoD concurrent with DVD release. Over two years ago, the Independent Film Channel announced its intention to release films simultaneously in theaters, on DVD, and via VoD; it currently releases two films per month simultaneously in theaters and via VOD. Even two Petitioner members –Universal City Studios LLLP and Warner Bros. Entertainment, Inc. – participate in a Cablevision service that provides VOD to customers on the DVD release date, and mails the DVD to the customer's house to arrive later. Some content owners are even pushing the release dates further – Mark Cuban recently announced that his production company, Magnolia Pictures, will air its new movies on VOD before theatrical release – and, of course, will not require or use any SOC restrictions.

Important questions, worthy of debate. No need to go look for other questions that aren't there.

For the record, here's what an MPAA spokesperson told Media Wonk late Tuesday via email:

As you can imagine, we are in the process of reviewing the comments that have been submitted regarding our waiver petition and are beginning to prepare our reply comments. We’re in the early stages of that, but our reply will certainly address some of the issues raised during the comment period and will also point out again the benefit that consumers stand to gain if the FCC grants this waiver request. I think you can expect us to stress the fact that no consumer will be denied access to any program offering they currently have available to them. This is fully about responding to consumer demand with entirely new and innovative home viewing opportunities that have never before been available.

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