Lest television viewers be allowed to make their own choices, one of the contributors from the PFF's IPCentral is now suggesting that they need shepherds:

Tom Giovanetti provides the only criticism that I think has some merit. In my paper I point out that technologies can be harmful if they weaken property rights. My Star Trek Transporter was such an example. For non-advertising based markets, like a box that unscrambles pay-TV signals, this would also be a correct analogy. For advertising based markets this might not be the best analogy. I put the term "property rights" in quotes in the second sentence in the offending paragraph of the original paper to indicate that it wasn't exactly a property right but I neglected to put it in quotes in the first sentence, which is my omission. Nevertheless, it doesn't really matter what you call it. This paragraph could easily have been removed from the article and nothing else would change.

We could say that the hypothesized TIVO should be banned because it leads consumers to an inferior position (without mentioning the term property rights) and that cable descramblers should be banned because they lead to inferior positions because they destroy property rights. Both are parasitic, as described.

No matter how you look at it, TIVO does not send the consumer into an inferior position. If anything, it gives them the best of all possible worlds, even if their use of the features might end up having damaging consequences for advertising-based markets. The primary problem here is precisely the fact that TIVO is a disruptive device that has the ability to rip gaping holes into the business model of the content producers.

The argument comes down more or less to a simple standard. If the ends justify the means, then do it. The case for banning cable descramblers is that they enable you to steal access to a service that you did not pay for. Please, spare me the legalistic contortions about implicit contracts and all that other poppy cock that IP lawyers love. I do not recall signing a legally binding contract to not time-shift and watch all of the advertisements in the programming that I like to watch. There is a clear property rights reason for banning the descramblers, but to ban TIVO would be a violation of property rights in the name of expediency, which is hardly any better than the arguments behind the Kelo ruling.

The only inherent efficiency in the advertising model is that it produces vast volumes of trash that appeals to the lowest common denominator. Niche markets such as science fiction and fantasy are largely barren save for what can be shown on the Sci Fi channel because the advertising model forces content producers to derive their funding from mass appeal. Niche, cult classics in the making stand little chance because of this. Firefly is a great example. The series would probably do a lot better today if it were operated by a coherent management strategy (the idiots at Fox reordered it so the debut was the final episode of all things) and followed Battlestar Galactica's lead and put each new episode on sale online a day after it was shown. Instead, Firefly was watered down and forced to appeal to the masses, whose idea of Science Fiction begins at Star Trek and ends with Star Wars.

It's ironic to me that the IP professionals at the PFF can see the obvious possibility that tiered consumer access to the Internet might be the only way to advance that market, but are unwilling to admit the distinct possibility that people might have to actually pay per show for what they like. I watch very little TV, but my service costs me $30/month. Another user who watches several times more TV pays the same rate. Why is this any less of a free-rider scenario than unlimited broadband access? How is my paying the same rate for very little content I like, any different than someone paying the same rate for very little use of the Internet? It's not different at all.