Prisoners of digital television: A misadventure in high-tech regulatory policy—and a harry Potter fix

Reason, April, 2003 by Mike Godwin

Consumers, too, would benefit, and not just because they wouldn't have to junk old TVs. They could still do fair-use time shifting (and other legal but unlicensed uses of commercial content) with their VCRs, TVs, TiVos, ReplayTVs, eyeTVs, WinTVs, and other digital and analog devices, including PC capture devices, as long as there was continued analog distribution. Perhaps more important, market competition among secure delivery systems might begin to offer similar fair-use features in the purely digital arena as well, especially once we've refueled the market for competition in the delivery-system sector.

Meanwhile, broadcasters could experiment with offering "must-see" TV at times convenient to audiences, or more than once. As far as the TV viewer is concerned, there would be an immediate improvement in convenience: Instead of waiting until Thursday night to see the new episode of Friends, you could click on the Friends Web link anytime you wanted during the week the current episode was showing.

That, of course, is just one possibility--lots of experiments would be possible. Another approach would be to give viewers a choice between "free" (that is, advertising-supported) prime time content and subscription-based, ad-free versions of the same programming. In other words, a viewer could choose to treat a network more like NBC or more like HBO. Perhaps you even could choose on Monday night to receive Friends on Wednesday. Since live broadcasting is increasingly unimportant to many TV viewers, your advance choice would allow the program to be buffered either in your system or in nearby servers, to be displayed on command. Such choices might matter more to viewers than any high-quality images.

And Congress? In a nutshell, it would be able to promote a transition to DTV without imposing any new expenses on TV consumers or imperiling "free" broadcasting. In fact, it would offer an expanded set of models for how free broadcasting can profitably work. It would get its "loaned" spectrum back and would be able to auction most of it off, consistent with budgetary plans, while reallocating portions of the spectrum for public use.

In short, every major stakeholder bloc would benefit, and consumers would be inconvenienced minimally, if at all.

Harry's wand-waving plan could work, and there may be other plans that do even better. But we'll only be able to weigh these alternatives if we set ourselves free to find alternatives to the current deadlocks, and resolve to avoid policy solutions that are worse than the problems. Both Congress and the FCC have been known to rival even J.K. Rowling in keeping us frustrated while we wait to find out how the story turns out. Let's hope we don't have to wait until 2006 for the next installment. And let's insist on a happy ending.

Contributing Editor Mike Godwin (godwin@publicknowledge.org) is senior technology counsel for Public Knowledge. A longer version of this article can be found at www.publicknowledge.org/reading-room/documents/policy-papers/potter-p aper.html.