Canadians Stuck With Analog Rights in a Digital World

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) notes that earlier this month, some fans of the NBC television programs American Gladiators and Medium found themselves unable to digitally record the shows on their personal computers.  The reason for the blocked recordings raises important technical and legal questions about the rights of consumers to "time shift" television programs in the digital era. The blocked recordings affected people that record television programs on their personal computers using the Microsoft Windows Vista Media Centre.  Most people are unaware that Microsoft has inserted a feature that allows a broadcaster or content owner to stop the digital recording of a show by triggering a "broadcast flag" that specifies its preference that the show not be recorded.  When the user tries to record it, Microsoft’s software recognizes the flag and issues a warning that the program cannot be recorded.
While there was speculation that the NBC broadcast flag was triggered accidentally, the incident provided an important reminder about the current fragility of consumer digital rights.  The law in the U.S. has granted consumers the rights to time shift programs for decades, yet broadcasters can seemingly stop the ability to record programs in the digital world with the flick of a switch. Cable providers enjoy similar capabilities. Digital cable boxes used by companies such as Rogers and Shaw include a CableCard that allows users to watch and record digital television shows.  The CableCards feature functionality (technically known as CGMS-A) that allows broadcasters and cable companies to establish limits on recording programs.  

Programs are broadcast with one of three specifications – copy freely, copy once, or copy never.  The copy never specification is typically used for pay-per-view or video-on-demand programming. As the recent NBC incident illustrates, however, there is the potential for far broader restrictions.  In fact, Internet chat sites are filled with postings from aggrieved Canadian consumers who claim that they have been blocked from recording a wide range of television shows. As broadcasters and content owners increasingly sell or stream their content online, the incentives to block consumers from making their own recordings grows.  In the United States, the law restricts the ability to block digital recordings, since cable companies face potential fines for blocking content that is not either video on demand or pay-per-view.  There are no similar restrictions in Canada.

Not only are Canadians more vulnerable to abusive use of a broadcast flag, but their rights to even record "copy freely" programs are open to question.  The Canadian Association of Broadcasters recently told the CRTC that consumers who record television shows for later viewing, whether on a VCR or PVR, violate the law. There has been recent speculation that Industry Minister Jim Prentice will soon introduce new legislation that would legalize time shifting in Canada.  However, the use of broadcast flags or other recording restrictions in Canada suggests that the legal reform may be too little, too late.

Creating a Canadian time shifting provision might allow for the recording of analog television programs that cannot be blocked through a CableCard or the Windows Vista Media Centre.  In the digital world, however, the new right will be illusory since technology can be used to trump the law.  Moreover, Prentice may actually make it illegal to circumvent the blocked recordings, meaning that Canadians that attempt to exercise their rights to record television programs in the digital environment could face the prospect of tens of thousands of dollars in liability. Addressing the rights of Canadians to record television programs is long overdue.  In tackling the issue, Prentice must be sure to avoid merely providing Canadians with analog rights in a digital world.


  1. Circumvention
    Hello Michael,

    While I agree with most of this column, the part about M$ Vista blocking recording capacities is nothing new for the M$ world.

    Did you know that certain levels of M$ Vista also throttles transfer rates whether on an internal network of from the internet (think basic and home premium vs. Ultimate)

    Technology will trump the broadcaster’s ability to block recording in the end, and what we need to make sure of is that we’re not labeled as criminals for doing so.

    Love the column,

  2. Anonymous says:

    lesson = do not use Microsoft products

  3. 1. Microsoft Vista’s DRM (Digital Rights Management) mechanism is a way to ensure protection of protected media. Generally speaking, unless it is a bug or other software issue, Vista should not aribitrarily prevent recording of unprotected media – the cause for this is likely an upstream injection of bits into the digital stream.

    That said, Microsoft is working with the Media Center community to track down this specific cause – which appears to affect Digital CableCard users with Dell PCs in the US. To participate, please visit — as of today, this blockage may have been because of Dell’s Support Center Software.

    Anecdotally, I personally have been affected by this, several months ago, when attempting to record the Sopranos – which worked fine on my Shaw DVR, but failed on my Media Center system.

    2. While the Shaw/Roger cable STBs do mechanisms to decode digital streams, it is my understanding that they *DO NOT* use CableCards, as mentioned in your column.


  4. Danny O'Brien says:

    @Ted –

    No, this is a separate issue from the Dell issue you’ve described. We have reports of the error occurring with HDHomeRun (not CableCard PCs), from OTA ATSC digital TV broadcasts. It is indeed due to an “upstream bits into the digital stream” — but those bits should not be responded to by Microsoft. It may well be a bug, but if it is a bug, it’s because Micosoft’s “protected path” systems are operating outside of the context of their CableLabs contract.

  5. Danny,

    Thanks for the comment – much more specific than the original article.

    I’m not an expert, so my question to you is: if the broadcast flag/bits have been set, what should Windows (or comparable platform) do? What should the algorithm be – should it not be to trust the originator of the stream, who insert of the bits in the first place? How is this Microsoft’s (or comparable platform – e.g., Apple TV) fault.

    Are you saying that if it’s OTA ATSC, unencrypted QAM, etc., then Windows should ignore the broadcast flag, but it it orginates on a encrypted digital STB feed, they should respond to the flag? (or not)?


  6. René Kabis says:

    This is why I would use MythTV running under Linux — no broadcast flag to muck up my recording!

    All hail open-source software!

  7. Rogers blocking signals
    Twice I’ve noticed a recording block message which prevented recording Rogers cable (analog) programs to a digital hard drive recorder. One was a movie from the 60’s, the other a weekly show ‘Mad Men’ on AMC (not pay-per-view or premium channels). Legislation should clarify my right to record and penalize service providers who won’t remove blocking signals in shows they broadcast.

  8. CGMS-A
    Michael, I was happily amazed that this intelligent column appeared in the normally idiotic Canwest Vancouver Sun. Your high-profile work appears to put you in a league of your own in this country.

    The CGMS-A controversy serves to further drive home the toothless waste of money that is the CRTC.

  9. Mark Wells says:

    Programs blocked from recording on Shaw
    Hi there,

    Just wanted to note that using good old standard cable provided by Shaw in Edmonton I am occasionally prevented from time shifting television with my LG DVR. The latest discovery of this occurred while watching Breaking Bad on AMC. My solution: turn off the tv and go download the television show from a torrent site, using Shaw’s broadband pipes.

    Why on earth are the TV studios and cable companies so damn dense that they can’t provide consumers with the services they want?

  10. Selective blocks on Rogers Cable 2013
    Recently CNBC’s “American Greed” has been recorded to my Panasonic hard drive DVD recorder in such a way that it cannot be copied. FX Canada’s “Brand-X with Russell Brand” is signal blocked for recording on my LG DVD recorder, but not on the Panasonic. This all started in April 2013. Even the Rogers “On-Demand” free services, such as recent tv shows, cannot be recorded on either machine. So, I imagine soon very little will be able to be recorded.