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13 responses so far ↓

• 1 chow-stl // Jun 1, 2006 at 3:39 pm

  Gee. Talk about frivolity. I recall a similar technology used in video recording devices. Dont recall if there was ever a lawsuit regarding that technology. If so, would be interesting to see how such a lawsuit turned out and wether it would have a similar bearing on the networks suit against the truck-stop chain.
  Best Regards.

• 2 Richard // Jun 1, 2006 at 5:39 pm

  I’m watching this one very closely, not because the case itself is all that important, but for the legal precedent that the verdict may set for future hearings.

  Precedent… precedent… precedent… it always come back to this! :-)

• 3 chow-stl // Jun 2, 2006 at 9:13 am

  please do keep an eye on the matter. I wish I had all the time i needed to keep up on what is important to those of us [what few are left] adore true freedom and liberty.
  Best Regards.

• 4 Defensor Fidei // Jun 14, 2006 at 7:22 pm

  This is simply theft of programming. The purpose of commercial breaks within programs is to allow those who *paid* for the production and broadcast of those programs to present their commercial messages to the audience watching.

  By substituting their own commercials, the truckstop is preventing those who paid the freight from being able to present their messages, and worse, substituting messages it has sold to others.

  It doesn’t matter whether there’s an electronic circuit doing the switching or whether an employee of the truckstop stands there switching the channel manually.

  Use “reductio ad absurdum”: If enough firms with TVs on their premises did this, they would diminish the value of the commercial spot time to the advertisers. Eventually, it could easily become the case that advertisers would be unwilling to pay for the production and broadcast of the programs.

  Theft is theft. When you appropriate someone else’s goods without their permission *for your profit,* you are stealing.

  Here’s a reference worth reading:

  Networks Sue Truck Stop Chain for Alleged Replacement of TV Ads (comment edited 17 Dec. 2006: now links to page title instead of displaying raw URL because URL was too long and interfering with the intended formatting of this post/page —Rich Harlos)

  Your humble servant,

  D.F.

• 5 Richard // Jun 14, 2006 at 11:38 pm

  Hi, D.F. Thanks for taking the time to comment on this very interesting issue!

  There seems to be a few separate yet related matters to consider:

  1. The role of advertisers in television production: they supply funding to produce a show in exchange for some exposure during that show time.
  2. The expectation of advertisers during television playback: people will sit through the commercials so as not to miss the regular show.
  3. The guarantees to advertisers by television studios: none! They *hope* for #2 but there is no guarantee that the viewers won’t use those breaks to go to the bathroom, fix a snack, channel surf or simply mute the TV in order to have a few minutes of small talk before the show resumes.
  4. The obligation of viewers to either the network or the advertisers: none whatsoever.
  5. The power/control that the advertisers or networks have over a viewers private property: none.
  6. The unlawfulness of anyone but the owner(s) altering or interfering with the quality/purity of the signal broadcast by the network.

  I’d like to reply to your statements individually with these 6 [Ed.- incorrectly said 4] points in mind:

  DF: “This is simply theft of programming.”
  Me: No, it’s not theft of programming; no programming is ’stolen’ when a person changes the channel on their TV, regardless of what channel they change it to; it’s every viewer’s privelage to change their own TV as much or as little as they prefer. (please refer to my #4 and #5 in the list, above).

  DF: “The purpose of commercial breaks within programs is to allow those who *paid* for the production and broadcast of those programs to present their commercial messages to the audience watching.
  Me: True enough. That privelage is not infringed upon simply because I, or some electronic device, changes the channel when that commercial message appears; I am under no contractual or moral obligation to watch a show all the way through from start to finish, and certinly not to stay put and heed every commercial that appears in the interim. (the role is intact {#1} and the broadcast is in no way tampered with {#6})

  DF: “By substituting their own commercials, the truckstop is preventing those who paid the freight from being able to present their messages, and worse, substitution messages it has sold to others.”
  Me: Not *substituting*, DF; *changing* channels. This is a subtle yet significant distinction. If Flying J were substituting their own commercials we’d be talking about a different matter; but they’re not. Flying J is *changing the channel* to another station. What station they change to, and the content of that station, is irrelevant in terms of what the networks can expect to control: MY television; MY right to change the channel when I want and how I want. (#4 and #5 above).

  DF: “It doesn’t matter whether there’s an electronic circuit doing the switching or whether an employee of the truckstop stands there switching the channel manually.”
  Me: You’re right on this point: it doesn’t matter who/what/how the channel gets changed because if I own the television, I reserved the right to turn it on and off at will, as well as to change the channel when and how I please. (see #4 and #5 above).

  DF: “Use ‘reductio ad absurdum’: If enough firms with TVs on their premises did this, they would diminish the value of the commercial spot time to the advertisers. Eventually, it could easily become the case that advertisers would be unwilling to pay for the production and broadcast of the programs.”
  Me: You’re correct in the reductio rationale. However you’re not correct that this conclusion somehow obligates viewers to watch an entire show simply because they started watching it; neither does your conclusion obligate viewers to watch commercials during the shows they observe. (again, #4 and #5 above).

  DF: “Theft is theft. When you appropriate someone else’s goods without their permission *for your profit,* you are stealing.”
  Me: Well, since no goods were appropriated in the act of changing the television channel, this is rather irrelevant rhetoric, don’t you think DF?

  I am looking forward to your point-by-point reply. {smile}

• 6 Defensor Fidei // Jul 13, 2006 at 9:53 pm

  Good evening!

  Please forgive the long delay. I think the most important poin we may be missing is that Flying J is *not* simply “changing channels.” Flying J is deliberately switching off the program provider’s commercials, then substituting new commercials that it itself has sold to other advertisers.

  The news reporting may not have made that clear. But that is how it works.

  If you purchased a billboard, then someone else came along, climbed up onto it, and pasted his own ad over yours, you absolutely would have the right to sue. As would the company that sold the billboard to you. There might even be the possibility of criminal charges in that sort of case.

  As a TV advertiser, it is your right to the use of the time between program segments to present your message. Whether or not anyone pays attention does not matter.

  The program provider, however, *is* obligated to present your commercial. If his efforts are interfered with by Flying J, he has right to recourse. In short, it is theft.

  Neither you nor anyone else in a Flying J truckstop is deciding what to tune to during a commercial break. An electronic device is switching, and that device is switching to commercials that Flying J, through its corporate office, has sold to advertisers.

  No one is saying that the viewer must watch or give attention. But no one is allowed to insert his own messages in these spots without paying for the privilege of doing so.

  Now, if you want an interesting question, let’s ask if it would be OK if Flying J automatically muted the audio or switched over to a non-profit, non-commercial, station, or maybe to a silent screen saver. The hardware and software they’re using would make those things easy.

  That raises the “performance rights” part of the question. Flying J wouldn’t have TV sets in its truckstops at all except that it knows that people like to watch TV while they eat, and that makes Flying J a little more attractive to customers than a place that has no TV. Hence, Flying J makes a little more money than a similar business with no TVs.

  So, is Flying J is profiting by the mere existence of the programs, whether they substitute their own commercials or not? Of course they are. Or at least, they believe that. Otherwise, they wouldn’t bother having a dish on the roof and the TVs in each corner of the restaurant.

  If it didn’t improve business for Flying J to have the TVs on and running on top-rated TV shows, Flying J wouldn’t have TVs at all.

  Therefore, Flying J is already profiting by the provision of programming by the networks, cable outlets and their advertisers.

  Now, if Flying J went for a screen-saver in silence during all spots, would that be theft or not? I think so, but clearly on a much lower level. And, I also know that no self-respecting businessman would go to a silent screen-saver, at his own expense in terms of equipment, when he could use that space for an ad.

  Not a point-by-point, but I hope I have cleared away some misconceptions (that Flying J is tuning to some other program), and why it is they shouldn’t.

  Regards!

  Defensor Fidei

• 7 Richard // Jul 14, 2006 at 12:30 pm

  Hello again, DF.

  I’m a tad disappointed that you chose not to respond point-by-point. I think the points I made in my previous comment/reply were relevant and deserving of your consideration and response.

  Even so, I’ll respond to some of your latest points because I believe there’s still some value in exploring them.

  You claim that “Flying J is *not* simply ‘changing channels.’” Your claim is patently false.

  The news reporting made that perfectly clear when they wrote, “According to the complaint, Flying J connected segOne’s 2000 LS device between its’ truck-stop televisions and Dish Network satellite boxes, where the technology watched for transitions to commercial breaks. When the box detects such a transition, it quickly changes the channel to a private feed running spots for Flying J’s own advertisers. After precisely two minutes, it seamlessly flips back to the regularly scheduled programming.”

  This reporting is confirmed accurate by visiting segOne’s website, where they say exactly the same thing: “The system recognizes a commercial break and then switches channels to air your message.” (from segone.com)

  Let this serve as a factual and final rebuttal of your point, above.

  As for your other points, they seem to stem, in part, from your failure to understand the nature of television advertising. In short, it is based on an assumption that both the program provider and the advertiser agree upon, namely, that when a person begins watching a television program, that viewer is assumed (but not obligated) to stick with the show from start to finish. Furthermore, that the viewer will watch the commercials that are intermittently programed into a show.

  This is an assumption, DF, and nothing more. There is no guarantee by the program provider that a viewer absolutely will watch the commercials, and no television advertiser would expect such a guarantee. It’s a numbers game, plain and simple. A particular show is expected to attract a particular demographic (viewer within certain parameters like age, race, sex, affluence, etc.), and the commercials scheduled for that show are those that, hopefully, will find receptive viewers.

  Let’s consider the viewer now. What obligation is the viewer under to follow a show from start to finish? None. What obligation is the viewer under to watch a commercial when it appears? None. What obligation does the viewer have to keep a channel displayed when the show transitions to a commercial? None.

  Viewers get to pick and choose what they watch, when they watch it, and whether to watch or ignore the commercials programmed into the show. This is as it should be, don’t you agree?

  So then, if a viewer chooses to change the channel during a commercial break, s/he may do so without any breach of contract. Whether the viewer uses bare hands to change the channel, a remote control unit or an automated piece of technology like segOne provides is of no concern to either the program provider or the advertiser. Furthermore, what the viewer does with his/her attention during that commercial break is also within the realm of the viewers discretion and choice; neither the program provider nor the advertiser have any say in the matter.

  So if the viewer chooses to watch another commercial on another station, there is no breach of contract or etiquette. The viewer is acting withing his/her realm of freedom to choose.

  Now then, on to other points:

  Your billboard analogy breaks down because a billboard is relatively static. For someone to cover it up disallows any other person, anywhere, ever, the choice to view the billboard, ergo, the analogy is flawed. The segOne unit only applies to the viewers in the Flying J establishment. Other viewers elsewhere still see the commercials if they remain attentive to the channel during commercial breaks.

  You wrote, “As a TV advertiser, it is your right to the use of the time between program segments to present your message. Whether or not anyone pays attention does not matter.” Quite right, and since use of the segOne technology does not interfere with the advertiser’s ability to have a commercial shown between segments, this is a moot point.

  You wrote, “The program provider, however, *is* obligated to present your commercial. If his efforts are interfered with by Flying J, he has right to recourse.” The program provider’s obligation is to show the commercial during the agreed upon time slot. That is all the program provider is obligated to do. There is no guarantee as to who will watch that commercial.

  You wrote, “Neither you nor anyone else in a Flying J truckstop is deciding what to tune to during a commercial break. An electronic device is switching, and that device is switching to commercials that Flying J, through its corporate office, has sold to advertisers.” You are incorrect when you say that no one is deciding what to tune to during a commercial break. The owners/operators of the truck stop have decided what to tune to, and how to tune to it. And as we’ve already seen, this is their right as the television set owners to tune to what they want, when they want, and by whatever means they want.

  You wrote, “No one is saying that the viewer must watch or give attention. But no one is allowed to insert his own messages in these spots without paying for the privilege of doing so.” This is a misleading use of language, DF. Flying J isn’t “inserting” messages into the program provider’s time slot; they’re changing channels. Why is this so difficult for you to understand?

  You wrote, “Now, if you want an interesting question, let’s ask if it would be OK if Flying J automatically muted the audio or switched over to a non-profit, non-commercial, station, or maybe to a silent screen saver. The hardware and software they’re using would make those things easy.” What they do with their own television is their own business. Whether they watch for-profit or non-profit programming on another channel is of no concern to either the program provider or the advertiser.

  You wrote, “That raises the “performance rights” part of the question. Flying J wouldn’t have TV sets in its truckstops at all except that it knows that people like to watch TV while they eat, and that makes Flying J a little more attractive to customers than a place that has no TV. Hence, Flying J makes a little more money than a similar business with no TVs.

  “So, is Flying J is profiting by the mere existence of the programs, whether they substitute their own commercials or not? Of course they are. Or at least, they believe that. Otherwise, they wouldn’t bother having a dish on the roof and the TVs in each corner of the restaurant.

  If it didn’t improve business for Flying J to have the TVs on and running on top-rated TV shows, Flying J wouldn’t have TVs at all.” Sounds like good business strategy to me. Nothing illegal about understanding your target market and trying to appeal to them, right?

  You wrote, “Therefore, Flying J is already profiting by the provision of programming by the networks, cable outlets and their advertisers.” This is a non-sequiter. Flying J profits by the business they do, which includes, in part, the public display of public television programs. Again, when they change the channel and what they watch or don’t watch is none of your, or anyone else’s, business.

  You wrote, “Now, if Flying J went for a screen-saver in silence during all spots, would that be theft or not? I think so, but clearly on a much lower level. And, I also know that no self-respecting businessman would go to a silent screen-saver, at his own expense in terms of equipment, when he could use that space for an ad.” If someone earns more profit by having a TV than not having a TV in his/her place of business, so what? And by extension, if someone earns more profit by switching away from stock commercial advertising to more local and/or more effectively targeted advertising during stock advertising segments, that’s nobody’s business but Flying J’s.

  You wrote, “Not a point-by-point, but I hope I have cleared away some misconceptions (that Flying J is tuning to some other program), and why it is they shouldn’t.” I think you have not succeeded in clearing away any misconceptions. Instead, I think you’ve succeeded in revealing your own misconceptions, which I’ve now twice responded to point-by-point. Please take the time to genuinely consider what I’ve written and if you wish to respond to specific points, I welcome your reply.

• 8 Defensor Fidei // Jul 14, 2006 at 2:00 pm

  Good afternoon!

  We can quibble forever over what constitutes a “channel.” When I think of a “channel,” I am thinking of CNN, ESPN, NBC, etc., not a digital video player that contains only commercials sold by Flying J to advertisers. If you want to call that a “channel,” I concede that point.

  In any event, I cannot continue this debate. If you will not accept that the billboard analogy is apt, we are not going to get anywhere.

  Again, I cite the comment made on the AdLaw site: “It is axiomatic that the creator/owner of a creative product has the right to reap the benefit of the product by controlling the advertising revenue.”

  By doing what it is doing, Flying J is depriving the “creator/owner” of that right and transferring the benefits to itself of a product it does not own. That is, I think, a pretty good definition of “theft.”

  Sincerely,

  Defensor Fidei

• 9 Richard // Jul 14, 2006 at 4:56 pm

  DF, since we began this discussion, I have addressed every point you’ve made with specific rebuttals. In contrast, you have not. I have explained why I think your points don’t stand up to scrutiny but you have refused–twice–to adress my rebuttals. Instead, you repeat yourself.

  That is not a debate :-)

  The short version of this story, as I understand it, is that I believe the owner of a television-set is morally and legally free to watch whatever s/he wants, whenever s/he wants, and to change from any broadcast channel to any other source of video at will. You, in contrast, seem to believe the same thing except that you feel that switching from a commercial on a broadcast channel to a commercial on a private video feed is illegal, i.e., theft.

  To illustrate why I see your position as flawed, I invite you to consider the following hypothetical scenario:

  I have a barbeque and invite my neighbors over for some food and fellowship. While everyone’s there, I turn on the TV as background audio-video. When a commercial break occurs, I decide I want to see what else is on instead of watching the commercials on this station, so I consider my options; these include, but are not limited to:

  1. Turn the TV off for 2 minutes.
  2. Mute the TV for 2 minutes but leave the video playing.
  3. Blank out the picture for 2 minutes but leave the audio playing.
  4. Change to the History Channel for 2 minutes.
  5. Change to my DVD player and watch a couple minutes from a comedy DVD I bought recently.
  6. Change to my VCR and watch 2 minutes of home video.
  7. Change to my DVR and watch 2 minutes of infomercials recorded during the wee hours of the morning while I was fast asleep.
  8. Change to my DVD player and show my guests a 2-minute ‘teaser’ video for a product I’m thinking of selling in my spare time.
  9. Change to my DVD player and show my guests a 2-minute ‘teaser’ video for a product my sister sells as her full-time occupation.
  10. Change to my DVD player and show my guests a 2-minute ‘teaser’ video for a product my company sells.

  As for your AdLaw citation, if Flying J were to disrupt the actual broadcast signal, they would be infringing on the broadcaster’s right to benefit. They are not affecting the signal in any way, though. Instead, they are choosing at that moment to tune into something else—regardless whether that ’something else’ be another broadcast channel or some other video source (VCR, DVD, DVR, etc.).

  As for your biilboard analogy, I already explained why it fails. As an extension of that earlier explanation, consider also this fact:

  While Flying J is doing their auto-switching thing to view other commercials, any person in the next building over who has a TV can tune into the broadcast signal that Flying J allows to play most of the time and see the commercials that the broadcast channel is airing.

  Contrast that ability with your billboard analogy, where if I pay for one billboard and someone covers it up, no one, anywhere, at any time, can see what I paid for.

  That’s a big difference, DF. In the TV scenario, Flying J is making a personal choice about what to watch and when, while leaving other people in other locations free to make their choices, too. Flying J does not prevent other television-set owners from seeing those commercials on their own television-sets if that’s what those other owners wish to do.

  Again, in contrast, your billboard analogy renders it impossible for anyone else to see my billboard once covered up. That is why the billboard analogy is flawed, DF, and I do not choose to accept a flawed analogy simply because you want me to do so. If that leaves you unwilling to pursue this discussion to closure, so be it.

• 10 matt // Sep 30, 2006 at 8:37 pm

  This whole discussion was fascinating. Let me put my two cents in. I see nothing illegal happening here at all. However, this could affect the revenue of media corporations. And thus change the business model of these corporations.

  I see these changes happening already: product placement occurring instead of just advertising. The other change I see is in the signaling that the tv station use. If they use different signaling, the segOne’s product may not work, thus creating a “technology war”.

• 11 Richard // Sep 30, 2006 at 10:24 pm

  Hello, Matt. Thanks for taking the time to comment here. This is one of my favorite posts precisely because it resulted in this level of discussion. I wish that more of my posts ispired a similar degree of reader-participation.

  :)

  I agree the the business model has been impacted and that this doesn’t necessarily imply any illegality. It’s been a few months since I’ve looked in on this matter so I really appreciate your comment at this time, reminding me to see how things are going with the Flying J.

  Take good care!

• 12 Joe // Dec 16, 2006 at 2:10 am

  It is quite obvious that none of the posters have ever been to a flying j truck stop and have seen this equipment in action. I have, and yes it is theft. They cut out outsider commercials and cut into the shows with their own commercials. Now how is it illegal? Imagine that you are watching nbc on your cable system and then when when the commercails come on the cable provider swithes to abc for 2 min. of their commercials robbing nbc of the revue stream.

• 13 Rich // Dec 17, 2006 at 3:16 pm

  Changing your name while retaining the same argument changes nothing.

  If I am free to change the channel of my own TV, then the means that I choose to change that channel, whether by hand, by remote control, or my some automated device, does not change that it’s ME exercising MY RIGHT to change the channel on MY T.V. whenever I choose.

  Get over it already… sheesh! :)

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