CES

Legal Observations on CBS, CNET, and the DISH Hopper

by Matt Schruers on January 18, 2013

We’ve written several posts on the DISH Hopper dust-up, but to recap: CBS owns the popular tech site CNET, whom it forced to retract an award given to the best product from the recent 2013 Consumer Electronics Show (CES).  Why?  Because CNET granted the Best of CES award to the DISH Hopper product, a product that CBS and other networks were suing DISH over, on the grounds that its service constituted copyright infringement.  As Rob described, initial reports implied this came from the legal division, which prompted a round of ‘typical lawyer nonsense’ eye-rolling.  Subsequent developments indicated that the decision had not come from the Wet Blanket Department at all, however, but rather directly from CBS CEO Les Moonves.

DisCo has yet to give this kerfuffle any legal analysis, and this post admittedly only scratches the surface.  At Hollywood Reporter, Eriq Gardner previewed the questions that IP and tech watchers have been pondering: does CBS meddling in CNET reporting now undermine its ability to argue that it should not meddle in CNET reporting on other subjects?

The prime example, noted in Gardner’s article, involves Download.com.  After CBS acquired CNET along with CNET’s website, Download.com, CBS was sued for making available peer-to-peer software, including BitTorrent applications.  If you do not immediately grasp the connection between CBS and P2P apps, worry not.

In short, the allegations in the suit are:

  • CBS controlled CNET, which ran the website Download.com.  Download.com is a software distribution platform, ancient by Internet standards (1996), which reviews and makes available freeware, shareware, and trial versions of software.
  • Among the thousands of applications that Download.com made available were file-sharing applications, and among the applications that Download.com editors reviewed were BitTorrent applications.
  • Individuals downloaded and then allegedly used these BitTorrent applications to infringe copyright.  And thus CBS should be held responsible, the theory goes, for those end-users’ infringement.

Presently, judge-made rules do allow for plaintiffs to hold non-infringers responsible for the acts of other infringers under certain circumstances: this is called “secondary liability.”  In these special cases, judges have decided that it is in the broader interest of protecting copyright to penalize non-infringers for the misconduct of third parties.  (Thus, this notion is sometimes confusingly referred to as “third party liability.”)

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CBS, CNET And How To Kill Tech Journalism Through Big-Media Denial

by Rob Pegoraro on January 15, 2013

If CBS isn’t already wishing it could hit the rewind button on its attempt to deny publicity to DISH Network’s video recorder, the company will be grasping for the remote soon enough.

The festivities began last week, when editors at CBS’s tech-news site CNET had voted to give DISH’s updated Hopper DVR–which can automatically skip ads in recorded prime-time network fare–its “Best of CES” award. CBS is not so fond of that feature, having already sued DISH over it, and forced CNET to give the award to somebody else.

That’s gone over about as well as you’d expect. CNET writer Greg Sandoval tweeted his resignation on principle (“I no longer have confidence that CBS is committed to editorial independence”), and editor Lindsey Turrentine wrote that CBS executives banned the site from saying what had just happened.

Daniel O’Connor unpacked the foundations of this foolishness yesterday, and a legal analysis by Matt Schruers is forthcoming [EDIT: Matt's post is now up]. Here, I’m going to tee off on two toxic defenses CBS has offered for its conduct, just in case any other media conglomerate wants to follow its example.

(Disclosure: DISH Network is a member of the Computer & Communications Industry Association, which hosts this blog.)

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CBS Nixes CNET “Best of CES” Award for DISH’s Hopper. Hilarity Does Not Ensue.

by Daniel O'Connor on January 14, 2013

On Friday, news broke that CNET was forced to pull its consideration of DISH’s awesome new Hopper set-top box from consideration for its “Best of CES” award because of a legal fight between DISH and CNET’s parent company, CBS.  At least, that was the pretext.  More likely CBS nixed the Hopper from receiving its rightful acclaim because — as another network, FOX,  jointly suing DISH with CBS said — the networks fear that DISH’s Autohop “will ultimately destroy the advertising-supported ecosystem that provides consumers with the choice to enjoy free, over-the-air, varied, high-quality primetime broadcast programming.”

CNN later reported (and CNET confirmed with a disclaimer) that CBS had hastily laid down a policy that prevented CNET from reviewing the DISH Hopper because it was involved in litigation with the company surrounding the product.  Unfortunately for CBS this ex-post legal rationalization did not completely ring true because CNET had already reviewed the DISH Hopper at CES and given it glowing praise.

As a quick summation of the legal controversy, the major networks filed suit against DISH’s Autohop technology earlier in the year for letting customers automatically cut commercials out of their primetime network television recordings.  Networks argued that this was a violation of copyright law and an affront to their hallowed business model.  DISH countered that TV viewers have been skipping commercials since the dawn of the commercial, and the Hopper just gives viewers more control.

Here at DisCo, our copyright law guru Matt Schruers discussed the Autohop technology in the context of prior technology aimed at giving users the ability to “tune out” commercials and noted, “your business model won’t last if it demands that the rest of the world order their affairs around you.”  The arguments of the networks are also un-refreshingly similar to the arguments used by the major movie studios in their attempts to make the VCR’s predecessor — the Betamax — illegal.

By today the situation was spiraling further out of control.  First, Greg Sandoval, longtime tech reporter and one of CNET’s most prominent bylines, resigned citing the dishonest way in which the situation was handled.

Then Lindsey Turrentine, an editor at CNET, revealed not only that (1) DISH had won the original vote for the “Best of CES” award, but also that (2) CBS prevented CNET from revealing that fact in its disclosure, forcing the tech news outlet to stick to the official, misleading script which was, “The Dish Hopper with Sling was removed from consideration due to active litigation involving our parent company CBS Corp.”  And not only had the order come down from CBS to meddle with the CNET’s editorial integrity, but it had come from CBS CEO Les Moonves himself.

In a final twist, the implications of which will be covered more extensively by Matt Schruers in a later DisCo post [EDIT: Matt's post is now up], CBS had actually used its “editorial hands off” policy to defend itself from being implicated in a (questionable) lawsuit brought against CNET for facilitating copyright infringement.  Given that CBS now has admittedly exerted direct editorial control in this instance, it is quite possible that future lawsuits will target CBS for the content put out by its affiliates, as lawyers will argue that in not editing future content CBS is exercising editorial control as it has now bulldozed the Chinese wall it used to defend itself in the past.

All in all, this was a myopically short-sighted attempt by CBS to censor editorial comments about a product that its own affiliate said was awesome.  (CBS must agree, seeing as they let CNET post the original review, right?)

In fact, one prescient company perhaps summed up the need for editorial independence best when it argued that forcing parent companies to take editorial control of its news outlets “would create grave uncertainties for writers and publishers — including search engines, web encyclopedias, blogs and most technology journalists — that seek to communicate truthful information about emerging technologies.”  Who was that company you might ask?  It was actually CBS defending itself against the above-mentioned charges accusing it of facilitating copyright infringement through articles published on its tech news affiliate, CNET.

And to would-be censors out there, take note that in attempting to censor something you actually increase its PR exposure, as this controversy has generated far more news than CNET’s “Best of CES” list ever would have.  Another clear instance of the Streisand effect.

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CES 2013, Part 2: The Gadgets That Weren’t There

by Rob Pegoraro on January 11, 2013

LAS VEGAS–It can be easy to lose sight of this after inspecting almost 1.9 million square feet of CES exhibit space, but some devices have a history of never even showing up at the electronics industry’s annual gathering.

The longest such absence has been video recorders that you can use with any pay-TV service, and this year’s CES continued that tradition. There’s never been any such standard for satellite TV, and by the time cable operators had more or less coalesced around CableCard, TiVo was the only mass-market effort left standing.

(Some DVD recorders offered the promise of controlling cable and satellite boxes through “IR blaster” wires that could send remote-control signals, but then their manufacturers remembered that nobody actually enjoys stringing that many devices together.)

This hasn’t been a universal condition. In Europe, standards for digital-cable reception allow electronics trade shows there to feature Blu-ray recorders. And this year’s CES offered one reminder of that: Huawei’s exhibit included an upcoming WiFi-linked, digital-cable-compatible, DVD-equipped DVR that, sadly, you won’t be able to buy here.

That doesn’t stop a cable or satellite provider from innovating on its own. For example, Dish Network announced at CES that its Hopper DVR, which can already skip ads on recorded prime-time programs, would allow remote playback over the Internet using the Sling software it acquired in 2007.

But most of the TV industry is not nearly so adventurous. (Note that the tech-news site CNET disqualified the Hopper from its “Best of CES” competition after its owner CBS, which is suing Dish over the ad-skipping feature, objected.)

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CES 2013, Part 1: Tech To Open Or Close Markets

by Rob Pegoraro on January 10, 2013

LAS VEGAS–If every gadget shown off at CES neatly clicked into an existing business model, this would be an easy trade show to track: Compare the upcoming model’s specifications, interface and price to last year’s, see if anybody new has entered the market, adjourn for dinner and then the blackjack table.

But advances in technology–for instance, proprietary specifications or open standards, telecommunications channels that require multiple levels of government authorization or just engineering talent–can also serve to open and close markets by themselves. How do the headline acts of this year’s CES rank on that scale?

Cheap, tiny sensors. Just over six years ago, it was a big deal that the first iPhone could tell which way you were holding it. Now, the same sensors that powered that smartphone’s self-awareness have gotten cheap enough to appear in hobbyist hardware as well as commercial gadgets that can measure your workouts, detect movement in and around the house and remind you to water the plants.

Many of these ventures won’t work, but electronically surfacing more intelligence about the world around us should yield a rich variety of unpredictable applications–and maybe get us a little closer to the future of helpful nanotech robots that sci-fi writer Neal Stephenson sketched out in The Diamond Age.

Ultra HD television. Going to four times the resolution of HD requires extremely high bandwidth, either online or via cable and satellite. (A Korean experiment in over-the-air broadcasting touted in LG’s exhibit requires 35 million bits per second of bandwidth, about twice what HD broadcasts take up with much less efficient compression.) Incumbent TV providers may like this, but who will want to challenge them later? This is TV for the ruling class, from distribution to reception.

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A Guide To Seeing Past CES Hype

by Rob Pegoraro on January 4, 2013

If an asteroid destroys Las Vegas next week, we won’t just lose a big chunk of the gambling industry; much of the electronics industry and the technology press will get taken out too.

Every January, CES–the trade exhibition formerly known as the Consumer Electronics Show–draws manufacturers, retailers, engineers, developers, marketers, journalists, government and legal types, and many others connected with the gadget industry to the Las Vegas Convention Center and nearby exhibit space.

(Disclosure: For most of last year, I wrote a weekly blog post for the Consumer Electronics Association, the Arlington, Va., trade group that runs CES.)

The punishing scope of the show–last year’s drew 156,153 people and sprawled out over 1.86 million square feet of exhibit space, with next week’s projected to sprawl across even more real estate–makes it a useful stage for companies looking to get attention for the products they plan on selling later in the year.

But it’s also a massive reality distortion field, as I’ve seen from all of the high-profile debuts over the last 15 years of CES that then flopped in the market. (Anybody remember Microsoft’s SPOT watch?) Or never even reached it.

This year’s highlights will probably include more integration of Web content with TVs (what I like to think of as TV’s second digital transition after the switch away from analog broadcasts); more smartphones and tablets that one can only hope will improve on the battery life of last year’s models; a big push for “4K” TVs with four times the pixel count of mere hi-def screens; renewed attempts to stop smartphones from eating the market for pocket-sized cameras; and growing integration of mobile devices with our cars.

How can you predict the consumer half-life of any of this? A few factors seem to come up at every CES:

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