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AskTog, April 2001



You’ve all heard of TiVo. Sure you have. TiVo is the hard-disk video recorder that automatically records all of your favorite shows. No more flashing 12:00. No more struggling to enter data in 15 different fields just to record a show. Just turn on the TV, pick out a recorded show from the menu, and enjoy yourself.

Then there’s ReplayTV, the other leading brand, an overall superior brand, in my opinion, but one that has done a miserable marketing job. Kind of the Sony of hard-disk recorders, ironic since Panasonic, Sony's rival in the VHS wars, is the company making most of the players that use the ReplayTV OS.

Late last fall, ReplayTV crossed over a line that should never have been crossed, one that threatened the future of consumer products. They have now pulled back, due at least in part to public outcry, along with apparent sponsor apathy. Nonetheless, their action set a serious precedent.

Before going into what happened, and why it was so important it be stopped, let’s look at the kind of damage that can result from inaction.

As-Is software

The first As-Is software I bought was VisiCalc, the original spreadsheet program. We were all pretty shocked to be picking up a brand-new product, only to see “sold as-is” emblazoned across the warranty. Such claims had always been the exclusive province of used, obviously broken flea-market items, not bright and shiny new high-end retail products. (Can you see Tiffany’s stamping “as-is” across the bill of sale for your new emerald brooch?)

The explanation from VisiCorp was simple: VisiCorp didn’t want to be named in a lawsuit if you used VisiCalc while designing a bridge and the bridge ended up in the water. They had done their very best to build a high-quality, bug-free application with a strong, highly-accurate math package. However, they wanted to spend their time working on improvements, not fighting lawsuits.

People were generally taken aback by the “as-is” declaration, but, mollified by the explanation, they bought the software and went on about their lives. This reaction did not go unnoticed by the rest of the software industry, and, within months, everyone was marking every kind of software “as-is.”

It was only a short time before the software marked “as-is” deteriorated in quality to the point where it really deserved to be marked “as-is.” Software houses, now freed from the legal bounds of delivering products that worked began shipping products that didn’t work, or, to be more precise, only sort of worked. The software community was turning out bug-filled and inaccurate software with impunity.

Companies soon discovered that, not only did consumers fail to complain about defective software, they all lined up to buy the next release, perpetually confident that now the bugs would all be fixed. Today’s rhythm of annual releases, each promising to repair the damage of the previous release even as each infests the user’s machine with new and often more pernicious bugs, became firmly established, so firmly that no one even questions it anymore. It just simply is the way things work.

To this date, I know of no bridges that have fallen into the water as a result of a problem in VisiCalc. However, those simple words, “as-is,” have squandered billions of dollars in lost productivity.  How different the world would be if the initial perpetrators of this disclaimer had been stopped in their tracks, which brings us to the current case, one far more cynical and at least as devastating if it is not swiftly addressed.

Replay TV

Boxes using the ReplayTV OS connect to the wall for power, the phone line for local TV logs, an antenna or cable box for program feeds, and your TV for playback. In use, you select shows from the TV log, click the Record button on the remote once to record the one show, click twice to record the whole series, then wait for the ReplayTV box to do its thing. Later on, you look at what shows the box has captured, select one, and watch.

ReplayTV thus lets you easily and conveniently build up an inventory of shows you like that you can watch whenever the hell you want. This is one of its two purposes in life. 

The other, equally important, purpose is to free you from ever watching a TV commercial again. Being a hard disk, the player need not fast-forward through commercials. Instead, the user is given a skip button that instantly skips ahead in 30 second increments. Fast, easy, accurate.

You can even avoid commercials in live TV. Let’s say you just love NBC’s Thursday Night line-up. Turn on your TV at 8:00. Select NBC on the ReplayTV box. Press Still-Frame, capturing and displaying a tantalizing glimpse of the new Friends episode. The live TV starts getting spun onto the hard disk. Putter around the house until around 8:35. Then sit down and press Play. Even as the recorder continues to store the evening’s entertainment with the write head, the read head will start pulling the shows off the disk as of 8:00. Hit a slug of commercials? Skip over them and continue watching. Phone ring? Press Freeze-Frame and stare at Just Shoot Me's Finch in mid-pratfall while you take the call. Your shows are always still there, waiting. About the time ER is over, you will have used up your 35 minutes of “time credit” and will again be watching TV live.

The Problem

When I bought and paid for my ReplayTV player, that’s exactly how things worked. You could press that Freeze-Frame button and that particular frame would stay on the screen forever. 

Now, you would expect in a bought-and-paid-for product that it would keep working just like that. However, last November, it stopped working like that at all. In fact, the Freeze-Frame function was gone. It had been replaced by a “Serve Me A Commercial” function. Press the same button you’ve always pressed for Freeze-Frame and now you got to look at a Coca-Cola commercial or some such until you pressed the play button again.

How did this radical change in functionality occur? ReplayTV downloaded the change one night, along with the TV log updates. No notice was given, and no choice was offered. They just stripped away basic functionality and replaced it with something that brought them more revenue. As a result, one of the two main attributes of the ReplayTV box--absence of commercials--was gone.

A few months later, ReplayTV downloaded a new patch that eliminated the new “feature.” The Freeze-frame button is back. They corrected the problem voluntarily. The next people that try this may not be so tractable. Somewhere in there among the contract law statutes has to be something the prevents the party of the first part from sticking it to the party of the second part this way. It is like buying a house with a nice formal dining room and discovering, a year later, that the former owner has snuck back into the dining room and opened up a convenience store.

Why We Must Remain Diligent

Until now, no matter how cynical the software manufacturer’s part of the annual upgrade dance, it took two to Tango, and those who didn’t want to upgrade anymore could just step off the dance floor. The ReplayTV incident is different: Users never requested a sharp reduction in the functionality of their machines, no notice was given that the machines would be downgraded in this way, and the users, who must of necessity tie to the TV logs to use the device, had no way of avoiding the damage that was done.

The reason this precedent is so important is twofold. First, computer software is likely to move to a subscription model, with software houses downloading changes as needed, in the background, rather than the once-per-year model we’ve previously had. User may awake one morning to discover an ad appearing in the middle of their Save dialog (“If you really want to Save, why not shop at Thorny’s Discount Bait Shop?”) with no means to revert.

Second, upgradability is finding its way into other traditional products. Several stereo preamps and receiver manufacturers are trying to keep up with the explosion of multi-channel decoders by making them software upgradable. As home automation becomes more commonplace, everything from refrigerators to telephones may need periodic upgrades, particularly since, because of the “as-is” phenomenon, the first release will almost always be defective. 

Unless people are protected from purposeful and involuntary downgrades in the usability of already-purchased products, we will see a deterioration of consumer rights unimagined before. “Buyer Beware!” is one thing, but how can you beware of what the manufacturer will do to damage or degrade your product years after you bought and paid for it?

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