FAQ: What Microsoft's block of 'American Gladiators' teaches us

Users of Windows Vista Media Centers who were blocked from recording two NBC shows last week are eager to learn why Microsoft is taking marching orders from broadcasters.

Microsoft is soon expected to explain why it inserted technology into its Vista operating system that blocked digital-TV viewers from recording their favorite shows. Their current excuse--that Microsoft adheres to regulations proposed by the Federal Communications Commission--makes little sense, as the only rules on controlling recording from broadcast TV were struck down by the courts in 2005.

The controversy began last week, when some Vista Media Center users trying to record from over-the-air digital or basic cable television discovered that they were barred from recording NBC TV shows American Gladiators and Medium.

In what for some was a stunning acknowledgment by Microsoft, the software maker said Windows Media Center honors the flags used by broadcasters to limit recording.

That triggered a wave of speculation. Some people asked if Hollywood had declared war on digital video recorders (DVRs). Some Windows users suspected Microsoft of possibly cutting financial deals with the studios. Others questioned whether a bug within Vista may have caused the block.

To this point, there are more questions than answers. We tried to address a few here.

Are cable and network TV companies trying to undermine the power of DVRs?
There is nothing to indicate that the blocking of the two NBC Universal shows represents some new attempt by the network or the entertainment industry to restrict the recording of over-the-air TV shows. In interviews with CNET News.com, executives of two DVR companies say broadcasters have not pressured them to limit recording--lately, at least.

"I'm not aware of any effort by the industry to prevent people from recording their shows," said Jim Denney, TiVo's vice president of product marketing. He qualified his answer by saying Hollywood doesn't attempt to restrict recording "outside of the regulations already in place, a la CableCard rules." We'll get to those rules later.

One important point to note is that broadcasters frequently block DVRs from recording TV content that isn't broadcast "over the air" (i.e. received by an aerial). Premium cable channels can prevent the recording of movies delivered via video-on-demand, or VOD. But what broadcasters haven't done before is to try to systematically block the recording of content delivered over analog channels or over-the-air digital.

That doesn't mean that they won't, according to Danny O'Brien, a staffer at the Electronic Frontier Foundation, which advocates for Internet users and has launched its own investigation into the NBC block. O'Brien notes that broadcasters have always felt threatened by TiVo and other devices that help viewers skip commercials.

"What the broadcasters and content owners have always wanted is a veto over new technologies," O'Brien said. "They want some way of controlling the powers of devices that they don't like. That's what the fight over the broadcast flag was about."

What is a broadcast flag?
The term "broadcast flag" has taken on several meanings, but it is best known for describing a set of proposals made by the FCC. The commission wanted those that made television software and hardware equipment to honor the flag, a code that broadcasters can insert into the data stream of digital-TV shows that typically place restrictions on the copying of shows.

The courts ruled against the FCC's plan in 2005, saying the regulator couldn't force electronics makers to interpret TV signals a certain way. Since then, those software and hardware companies have had the option of deciding whether to design their systems to obey the broadcasters' flags.

It's important to note that the flag rules were never meant to ban the recording of over-the-air digital broadcasts. They were designed to wall off content, and prevent mass reproduction and piracy. But Vista's remote copy control apparently goes much further and may forbid the recording of broadcast TV shows.

How many people could be affected by this issue?
About 30 million U.S. households are equipped with a DVR, according to research firm Leichtman Research Group. Forrester Research says about a third of the country's households own DVRs and predicts that the percentage will climb to 50 percent by 2010. That number is likely to rise rapidly after February 17, 2009, when all full-power U.S. broadcast television stations will switch from analog to digital broadcasts.

As for Window users, more than 140 million copies of the Vista operating system have been sold, Microsoft said last month. Both Vista Home Premium and Vista Ultimate contain Media Center, though a tuner is needed to record from TV.

What companies have acknowledged honoring copy controls?
It's unclear whether any other software or hardware makers follow a policy similar to Microsoft's.

O'Brien says companies that do "should come clean" and let consumers know that they could be buying a product that may limit their ability to record.

How do CableCard rules apply?
A CableCard is an interface that enables U.S. consumers to view and record digital cable TV. It allows people to bypass set-top boxes and watch cable broadcasts on DVRs, computers, and TV sets, provided that they have been sanctioned by CableLabs.

CableLabs, a consortium created by the cable industry, must certify all CableCards. Microsoft's Vista operating system supports CableCards, and this can effectively turn a sanctioned PC into a DVR.

CableLabs require CableCard-equipped devices to come with DRM and adhere to commands from broadcasters. Those commands include "copy never," "copy once," and "copy freely." Typically, consumers bump into these flags only when trying to record video-on-demand or pay-per-view programming from premium cable channels. VOD is often protected with a "copy never" or "copy once" command.

To date, it is unclear whether any broadcaster has intentionally tried to use the "copy never" or "copy once" commands to limit recordings from over-the-air digital or basic cable. It's safe to say the practice isn't common. But EFF says the block of American Gladiators proves that it can be done, and O'Brien expects that broadcasters will be under pressure to try it in the future.

Do DVR owners have any rights?
You bet. "You have a fair-use right to record TV content, as specified by the Supreme Court in the now-famous Betamax case," O'Brien said.

"The important thing to remember," he added, "is that digital-TV viewers must not lose any of the rights they owned as analog users."