TV Everywhere? The old spatial politics of new media

Communication, Culture & Critique ISSN 1753-9129

ORIGINAL ARTICLE

TV Everywhere? The Old Spatial Politicsof New Media

Daniel Faltesek

Department of Communication Studies, University of Iowa, Iowa, IA 52246, USA

Cable has all but disappeared from contemporary media studies. Media scholars havechosen to focus on the specific ways viewers access content on multiple platforms, to theexclusion of the study of the logistics by which that content is produced and deliveredto those devices. In this essay, I read the deployment of Cloud-digital video recorder(DVR) systems and the distribution program TV Everywhere. By focusing on the spatialpolitics involved in programming distribution, I argue that media studies missed a criticalseries of technological, legal, and economic developments. The study of the ways in whichinstitutions have understood distribution returns cable to center stage offering insights intothe production and distribution of television that are lost in new media.

doi:10.1111/j.1753-9137.2011.01108.x

On August 4, 2008, the Second Circuit Federal Court decided an important caseregarding intellectual property and television programming with little fanfare(Cartoon Network v. CSC Holdings, 2008).1 In the case, the Court addressed Cable-vision’s plan to deploy a system called a Remote Storage Digital Video Recorder(RS-DVR) or Cloud DVR (Anderson, 2010). A conventional digital video recorder(DVR) is a set-top box kept in the home of a user, which is connected to a cableservice. The DVR records programs and stores them on a hard-drive system forfuture play back. You can think of a DVR like super-charged videotape that canrecord whatever you want at high quality. The RS-DVR has the same functions, butstores the data at a facility owned by a cable operator. At stake in the decision arefundamental copyright concepts clarifying the meaning of both fixity to a mediumand public performance. In denying the Plaintiff’s claim of a copyright violation, theCourt found that the storage of media on a server does not represent fixation to amedium, and further that broadcasting the stored data to an individual subscriberdoes not amount to public performance.

The significance of a remote storage or Cloud DVR for consumers is substantial.By shifting the location for material storage from the home to a server at a central

Corresponding author: Daniel Faltesek; e-mail: [email protected]

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facility, the Cloud DVR would decrease the number of wires and complexity of thetechnology in the home, eliminating the need for the storage of media purchases andchanging the relationship between the content producer and consumer. For contentproducers, the Cloud DVR risks a loss of an important revenue stream, as userswould now have the capacity to produce their own libraries of content that could beaccessed anywhere, almost effortlessly. For cable network operators, the Cloud DVRis a critical step toward a new framework for monetizing the postnetwork mediaenvironment.

Rather than focusing on the potential revenue and market forming power of CloudDVR, media scholars have tended to address the initial production and final receptionof television products, overemphasizing the agency of the audience and traditionalcontent producing companies. Revenue, control, and the future of production arenot in the hands of the traditional players, but in the hands of Comcast and thefirms that deploy Cloud DVR and similar systems. By focusing on programming anduser agency, the profound effects of the consolidation of resources into the hands ofmedia distribution companies is ignored. What is more interesting is that this wave ofconsolidation is different because the great strength of cable companies comes fromtheir ability to harness cash flow, not merely to more efficiently accumulate debt,challenging the models that have informed media industry scholarship. Scholarswrite about Hollywood and New York when attention should be paid to accountsreceivable offices in El Segundo and Philadelphia.

In this article, I argue that the Cloud DVR and the developing TV Everywherebusiness model both depend on the changing metaphysical conceptions of space inthe media industries. First, I will present a short history of the dominant spatialmetaphors in the television industry, starting with early television and ending withpostnetwork television. Second, through a close reading of the decision in Cable-vision, the specific operations of spatial metaphors in the opinion of the Courtwill be compared with the operating metaphors in the industry. Third, the emerg-ing financial and juridical model for the media industries will be compared withthe business model of TV Everywhere. The central move of this article is to readdeveloping trends in the configuration of the industry through an overtly spatiallogic. A spatial reading strategy puts the development of the television industriesin the United States into conversation with studies of the core–periphery rela-tionship. Although the Cloud DVR technology offers great latitude in the choiceof where one might view television content, the Cloud DVR technology normal-izes a hierarchical relationship between increasing powerful media companies andconsumers.

Fixation, medium, space

The majority of cultural studies works on the connection of regulation and social lifehave focused on intellectual property law and the use of media texts in the lifeworld(Coombe, 1998; McLeod, 2007; Wirten, 2008). These works focus on individuals

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who are involved in the production, distribution, or collection of media (like bandsor individuals downloading music) and their encounters with large corporations andthe legal system. In all too many of these stories, individual inventors, song writers,indigenous groups, and Internet users are subjected to the whims of an indeterminatelegal system, where nonexpert judges make unpredictable decisions that disruptthe circulation of cultural knowledge in the name of protecting it. In short, thereis an ongoing scholarly discussion of the strategies used by media companies toprotect their intellectual property, and the decidedly negative consequences of theseefforts. These studies of the relationship between users and institutions point to theimportance of media content to the audience. With the risks involved, it would makelittle sense for an individual to pirate media content if they did not see it as having asubstantial value to them.

Coombe’s (1998) argument focuses on the ways in which the deployment oflegal instruments like copyright constrain the everyday possibilities of cultural life(Coombe, 1998; Curtin, 1996). Essential for this argument is the relationship betweenthe mass media and the lifeworld.2 The cultural forms that come from the mass mediaare important, serving as a feedstock for the production of a multiplicity of meanings.This is the tension inherent in Williams’ (1973) idea of mobile privatization. Mobileprivatization was a contradictory process because it both provided for a better qualityof life for urban workers, requiring them to have fewer connections to their home life.Access to the working world provided them with a great deal of new information andnew venues for discussion. The system and the lifeworld depend on each other. Mediacompanies and regulatory bodies contribute to the lifeworld of everyday media use,just as those bodies are produced by the efficacy of their discourse in the lifeworld tooperate in the first place. The implication of this relationship between discourse andinstitutions has been taken up by several scholars, and offers important insights forthe study of communication and culture.

Critical legal scholars argue that the law is not a thing in the world, but a wayof knowing about the world (Boyle, 2008; Coombe, 1998; Schepple, 1991; Streeter,1996). The key insight that will be used in this article is the idea that legal decisionscan be read rhetorically (Schepple, 1991). Schepple uses a reading of the Riggs case toshow the necessity of reading the judicial use of metaphor. Riggs is a case from the late19th century where a beneficiary of a life insurance policy murdered the policyholder,with the intention of collecting a death benefit. Through a reading of the language inthe opinions, Schepple can demonstrate that the opinions of the judges come fromtheir positions on the nature of the law, which produces a way of understanding thefacts of the case. In this sense, a critical legal analysis of a court decision would callinto question the perceived neutrality of legal institutions. A critical analysis of a courtdecision could engage this elision to reveal the aesthetic, economic, and politicalinterests that shape law and public policy. The way the law renders media depends onan image of the relationship between producers, distributors, and audiences. Theseways of understanding the audience are not natural and inevitable, but rather are



the expressions of a certain set of cultural assumptions and industrial logics, whichappear as material relations.

Material relations

A key term for understanding the relationship between discursive renderings ofinstitutions and the physical world is what David Harvey has termed the spatialfix (Harvey, 2002). The term spatial fix can refer to several contradictory processesand formations within late capitalism; including the production of center pointswithin networks, as well as the ways in which spatial metaphors can be deployed tosolve problems (Harvey, 2001). Harvey generally refers to the production of centerpoints and expropriation of the margins in his use of the term (Harvey, 2001). Thecore–periphery relationship is a core concept in studies of globalization and mediaimperialism, which refers to the production of spatial centers that would dominatesmaller marginal markets. Core–periphery is a particularly strong term, since itimplies a power relationship that is clearly often to the detriment of the weaker power(Sawhney, 2002). The particular dynamics of these relationships have been a topic ofconversation, with some research suggesting that the directionality and strength ofthe relationships in the model are more fungible than once thought (Boyd-Barrett,2006; Schiller, 1969/1992).

Streeter uses the center-periphery model in his work on broadcasting to describethe relationship between television networks and their affiliates (Strecter, 1996).Affiliates are dependent on networks; although some autonomy exists in that theycan change network affiliation, the vast majority of broadcast institutions aresubordinate to their network. This relationship is quite similar to the one betweenthe users of media and content distribution companies, which will only become moreimportant as post-Fordist fragmentation continues. Following Streeter’s move to usethe core–periphery model to describe the relations between media companies withinthe United States, this article pushes the model further to describe the relationshipsbetween individual users and media companies.

I use spatial fix to refer to two distinct phases within media business models, thefirst where regulatory, technological, and economic necessity prompt the accumula-tion of fixed capital at central sites, like sound stages and transmitters. The centersin media systems are extremely difficult to develop and are often capital intensive.In the later phase of the spatial fix, media companies shed their depreciating fixedcapital in favor of a new spatial arrangement where finance and control are centeredin one place, while the means of production and fixed assets are dispersed to otheractors. The spatial fix in the second phase refers to the specific conditions createdby a quasi-monopoly to extract value from cultural texts rather than accruing valuefrom the distribution of those texts (Curtin, 2004, 2007; Harvey, 2001). In the secondphase, it would appear desirable for a media company to treat the communicationinfrastructure as given, focusing instead on deploying juridical monopoly controlslike copyrights or patents to protect their interests in an established cache of content.



Although Harvey may emphasize the role of spatial fix as a way of theorizingmaterial relations, the operation of the spatial fix in discourse is important in orderto understand how institutions render spatial questions. Here, I turn to Carey (1989)who offered a compelling reading of spatial stories about communication in his workon cultural studies. Carey describes these relationships as mapping strategies, whichreveal the power differentials between the interior and exterior places in a network.What is most striking about Carey’s account is its emphasis on the map, and itspower to produce reality. As communication systems are always in a state of decayand renewal, the way that maps are deployed through stories produces the regulatoryand economic conditions that structure communication networks.

This conversation regarding the effects of media centers is also apparent inthe discussion of media consolidation. Several important works have argued thatconsolidation risks the homogenization of media content and, worse, amplify thespectacle of 24-hour news (Dagness, 2010; McChesney & Herman, 1998; McChesney& Nichols, 2010). While studies of journalism are important, they assume that allownership of fixed capital is roughly equivalent between company and media type.This article argues that there are differences both in how the spatial fix operates overtime and between different media industries. Coming from a more internationalperspective, Arsenault and Castells (2008) provide important details about thestructure of global media business networks in the early 21st century; however, atno point in their analysis does a large American cable company enter into the mediaeconomy. By focusing on the relationships between a few global players, we lose sightof the everyday structure of the media industries as produced by content distributionsystems, which are also the largest media companies in the first place.

Convergence arguments about postnetwork television provide the counterpointto the critique of centralization. Lotz (2007) reads industry behavior as essentiallyreactive to audience fragmentation. Kompare (2010) addresses television from theside of the audience, reading the possible modes of content use by individual webusers, and the multiple platforms they might use to access that content, withouttheorizing content being delivered to those devices. Peren’s (2010) vision of onlinedistribution is quite similar to established projects, showing how multiple platformdistribution is an effort to counter declining viewership; however, the choice ofplatforms focuses the analysis on the audience, rather than the business model.Integral to these accounts is Jenkins’ (2006) theory of convergence culture, whichargues that multiple platforms for content distribution are coming together into asingle delivery medium. The development of the HDBaseT cable standard, whereEthernet cables are replacing specialized video cables, is a fine example of convergenceon the consumer end, but the political economy that has made the adoption of thissystem possible is absent from this kind of work (Daily Tech, 2010). What is missingfrom both the critique of consolidation and convergence culture theory is the roleof the distributor. This article intervenes as a form of critical political economy,which focuses on the role of distributors and the discourse that enables their uniqueposition.



The spatial fix in 20th century television

The story of American broadcasting starts with radio, which paved the way fortelevision. In the early days of television, producing a program for later play was farmore difficult than broadcasting a new program live. Without videotape technology,a program would either need to go out over the air, or be produced on film and playedlike a movie. The kinescope was essentially a movie camera pointed at a television,meaning very low resolution, and the hot kinescope (a combination movie/TVcamera) was unreliable at best (Butler, 2006). Liveness was not merely convenient,but effective. Live programming carried an added cultural value that recordedprogramming would not, which continues to have currency today (Levine, 2008).Effective distribution of television programming on a nationwide basis came later,with the development of videotape and satellite technology. Broadcast programmingwas distributed via radio waves, with information about viewership returning throughaudience research (Lotz, 2007). In broadcasting, there is no direct linkage between thetransmitter and the home, and funding for program production comes exclusivelythrough advertising. The spatial fix in broadcasting comes almost exclusively throughcontrolling fixed capital at the transmitter; if the audience watches, the businesswould flourish. Access to programming costs only what a television set and electricitywould.

The history of cable systems is in one sense very similar to that of the broadcastingmodel; it included most of the same programming (entire channels in most cases)and also dates to the late 1940s (Sloan Commission, 1971). What differs fromthe account of broadcasting is the spatial relationship between the center and themargins, and the economic relationships between them. Money circulates between thedistributor and the viewer directly, in addition to advertising revenue. In this section,I will take up two parts of the cable television story, securing content and diggingditches.

One of the greatest drawbacks to the early broadcasting model was that the signalcould not reach into valleys and outlying areas. As early as 1948, viewers beganworking on ways to secure television where the broadcast signal was weak (Alice &Phillips, 1972). In these rural areas, a ‘‘community antenna’’ could be placed on a veryhigh hill where the signal could be received (Carter, Franklin, & Wright, 1994). Theselocal cable operators would then string a wire into town that would provide televisionservice. In these early days, broadcasters largely ignored cable operators, as theywould serve to amplify their signal and increase their reach. The Sloan Commissionreport on cable television is interesting in that it suggests that two-way connectivitycould be coming in the early 1970s, implying that the spatial fix for cable operatorshas always been transactional (Sloan Commission, 1971, note 13). The metaphor forthis relationship would be quite different from that of broadcasting, since wires, cashtransactions, and viewing information could change hands. This changed when cablesystem operators began to challenge the spatial fix of the broadcasters.



As the 1970s continued, urban cable systems had begun to proliferate and a newvisceral spatial challenge would come to dominate the landscape. In order to installa cable system, wires must be connected from a central location or ‘‘head-end’’ toevery potential place where cable would be accessed. To accomplish this, one wouldneed to dig up the streets, or string new wires on electrical poles. This operation wasfamiliar for areas where rural CATV first offered access to television; the entire townwould be connected by wires to a central antenna. In the city, this would require afundamental reconfiguration of the underground spaces provided for public utilities.The physical space of the city would need to be disrupted. Streets would be tornup, and flowers trampled. Cities used this as leverage to write a series of exclusivecontracts, where one cable operator would be allowed access to the undergroundspace, to the exclusion of all others, in exchange for particular local priorities beingfollowed by the cable operator. In some places, this required the cable operators tohave fixed rates for access, to wire schools, or to provide services to outlying areas ofcities (Carter et al., 1994). As these arrangements went on, they became increasinglyproblematic as cable television operations became quite expensive.

The solution for the cable operators was to change the spatial logic once again,moving toward Congress and the Federal Courts for relief from what they thoughtof as abusive city negotiating practices. The key case in this area was PreferredCommunications v. Los Angeles. In Preferred, a cable system operator who was notinvolved in the initial bid to be the exclusive Los Angeles cable provider sued thecity, challenging the legitimacy of the exclusive license granted to a competitor(Carter et al., 1994). After several years of litigation and four different hearings beforea Federal Circuit Court, Preferred won and fundamentally changed the landscapeof cable television licensing by ending the use of the cities’ right to create cablemonopolies. The early phase of the spatial fix for cable was local either in the sensethat the people of a community deployed the system on their own or that a city mightnegotiate with a cable provider, using its position in controlling the right of way as aform of spatial power. The late phase of the spatial fix in cable operates by decreasingthe cost for connecting the network infrastructure by removing a situated stakeholder(cities) from the situation. By shifting the locus for understanding the control of theright-of-way to the level of executive agencies and state-level authorities, the cabletelevision industry made the politics of digging a ditch into a national concern.

Spatial relationships in time shifting

An important shift in the broadcast landscape came with the introduction of homerecording devices that would allow users to change the schedule of television to fit theirneeds. The legal crux of this practice was the Betamax case, where the Supreme Courtruled that it was legitimate for a home user to record programs off the air and replaythem at their leisure (Carter et al., 1994). It is this understanding that is the genesis ofcontemporary practices of television time shifting. Once the technological capacitycame into existence for users to create their own flow dynamics for television, the



centrality of network-produced flow was in danger. I want to be clear from the outset,I am not claiming that users had the power over the media returned to them, butthat the core characteristics of the network era, monodirectional transmission, andabsolute control of flow were put into flux. The power of television to put people insimilar spaces at any given time was no longer assured. Worse still, a Betamax or VCRcould allow the viewer to avoid watching commercials, undermining broadcast andcable business models. If all consumers were to fast-forward through commercials,the only remaining source of nonsubscription revenue would be product placements,which provide some revenue, but cannot sustain production (Gutnik, Huang, Lin, &Schmidt, 2007).

It is also interesting to note that the second generation of commonly used homevideo technologies had a substantially different paradigm for information controlthan the videotape. The digital versatile disc, or DVD, was just that, versatile. Ratherthan simply reproducing a video signal that could be displayed on a monitor, the diskcontained an entire performative program that would control the playback deviceand the possibilities of where, when, and how the DVD could be used (Boyle, 2008).Region coding controls when and where a disc can be played, for example, a diskintended for use in Australia cannot be used in Africa without special equipment, anda special region has been reserved for playback on international flights. There is noengineering reason why a DVD should have region controls. On the other hand, thereare compelling commercial reasons why DVDs should be tied to particular spacesand times, not the least of which is the prevention of piracy. The question of howa DVD would be used is more interesting both for our understanding of space andtime. A DVD’s performative programming can require that a user views trailers forupcoming movies at its start, or that they use particular keys on their remote controlto view the film. In this sense the DVD does not break the relationship between theuser and the corporate structure—it enhances it. With broadcast or cable televisionyou could change the channel, with video you could fast-forward, with a DVDcorporations have a unique position to push commercials on the audience. In thebroadcast world, you would adjust your schedule to watch a program, with a tape youcould watch at a time of your choice. With a DVD you can watch at a time of yourchoice, but only if you accept the control of your time at the moment of playbackthat is incumbent with the DVD program. In this sense, the DVD brings the politicalcontrol of network flow into the volitional decision-making process of purchasingand playing a DVD.

The most recent iteration of the time-shifting technology is the DVR. The capacityfor the DVR to shift time is more profound than the DVD (which was cumbersometo record at home at best) and less labor intensive than the VCR where a user wouldeither need to pause the recording during commercial breaks or fast-forward duringplayback. The DVR does other spatial work in that it no longer requires paratextualartifacts, like tapes or discs. With the latest developments, DVR simultaneously breaksthe spatial and temporal fix on media use. Reorganizing material relations is never



an easy process, with the transition to DVR technology presenting an important newchallenge for media businesses.

Courting the cloud: The second circuit and the Cloud DVR

Cablevision’s plan to deploy a system of network DVRs or a Cloud DVR system hadbeen challenged by several cable channel owners, including Cable News Network,Cartoon Network, and others. The Plaintiff’s claim was that the spatial differencefrom existing broadcast, cable, DVD, and DVR models ran afoul of the provisionsof copyright law. A District Court decided that Cablevision’s system infringed onthe copyrights of content providers. The Second Circuit Federal Court reversed theDistrict Court. This analysis is concerned with the use of metaphor in the decision ofthe Second Circuit, as written by the Honorable Judge John M. Walker, Jr.

The Cablevision decision addresses three claims of direct copyright infringementby Cablevision: First, that by routing a live television signal through a dual buffersystem for 1.2 seconds, Cablevision fixed a copy of the Plaintiff’s content to amedium. Second, that by providing a technology where a third party might producea copy, Cablevision should be held liable for producing those copies. Third, thatretransmitting content from a hard-drive constituted a public performance. Inherentin each element of the decision is a nested metaphorical debate about the nature ofthe spatial relationship between a user and a media company.

In the opening section of the decision is background of how a DVR system works,and the metaphors underlying the decision are directly juxtaposed. The District Courtfound the RS-DVR system to be ‘‘a complex system requiring numerous computers,processes, networks of cables, and facilities staffed by personnel twenty-four hoursa day and seven days a week’’ (Cartoon Network v. CSC Holdings, 2008, p. 8). TheCircuit Court used a different metaphor, thinking of the system as an extension ofthe DVR and VCR: ‘‘The principal difference in operation is that, instead of sendingsignals from the remote to an on-set box, the viewer sends signals from the remote,through the cable, to the Arroyo server at Cablevision’s central facility’’ (pp. 8–9). Asenvisioned by the District Court, the RS-DVR system is a giant, exotic mechanism,rather than the extension of a widely used and accepted technology. Built into theDistrict Court’s metaphor is a feeling of time duration and spatial fixity. The referenceto the size of the network and the amount of time the facility is staffed bring anunderstanding of the facts that is plainly not accessible through a reading of the caseor the law. On the other hand, the Circuit Court reads the case through a lens thatneutralizes the threat posed by the new technology, allowing it to be treated throughestablished legal heuristics. An extension of the remote control is far less threateningthan a factory that breaks copyrights.

The first claim of infringement is on the basis of direct infringement by buffering.Cablevision did not deny that the buffer was an embodiment; surely, the memorychips exist and operate. The idea of embodiment is that copy or derivative workwould need to be produced in a stable form that might be relayed to others; it would



need to exist for more than an instant. The claim Cablevision contested was that theinformation was embodied for more than a transitory period of time, a claim that theDistrict Court had disregarded. The incoming stream of programming would passthrough the buffer almost instantaneously; the buffer would not be a storage systembut a part of the transportation system for data. In the language of the decision itself,it would be possible to read this as the District Court simply making a mistake, bylosing track of the word transitory, yet they had ignored a meaningful distinction.

The circular logic implicit in the Plaintiff’s argument would be persuasive, if thecomplexity metaphor had already been accepted. If when deciding the case you havealready imagined the RS-DVR system as an industrial operation, it would be obviousthat the embodiment was not transitory: factories take time to work. The Plaintiff’sargument as per Judge Walker’s reading of the District Court decision is this: ‘‘Againstthis evidence, the Plaintiffs argue only that the duration is not transitory becausethe data persist ‘long enough for Cablevision to make reproductions from them’’’(p. 20). The argument here is circular—the criterion for being not transitory wouldbe embodiment. A judgment for the Plaintiff would redefine all electronic systemswith random access memory as copies, even a crystal radio set could infringe if thestandard for making a copy is reduced to relaying a signal.

The second claim was for direct liability for making copies. Here, the logic ofthe VCR metaphor returns with great effect. The distinction to be made is about theagent who chooses to make the copies. Judge Walker writes:

In the case of a VCR, it seems clear–and we know of no case holdingotherwise–that the operator of the VCR, the person who actually presses thebutton to make the recording, supplies the necessary element of volition, not theperson who manufactures, maintains, or, if distinct from the operator, owns themachine. We do not believe that an RS-DVR customer is sufficientlydistinguishable from a VCR user to impose liability as a direct infringer on adifferent party for copies that are made automatically upon that customer’scommand. (Cartoon Network v. CSC Holdings, 2008, p. 23)

Judge Walker’s metaphor extends the map of the user–device relationship beyondthe bounds of the home. The District Court would find the other way, as the imageof the server plant would always already include the volition of Cablevision to makethe copies. Why else would they employ a staff working round the clock, in a maze ofcomplicated copy machines if they did not intend to copy something? Judge Walker’sremapping of the relationship is productive because it avoids the fear of sanctionedlawlessness. The alternative to the position of the Plaintiff is not copyright anarchy,but the extension of an established, viable legal framework, that of the VCR. Further,Judge Walker cited the Betamax decision, to add precedential force to the VCRmetaphor, making it difficult at best for the Plaintiff to generate any coherent basis inthe case law for their theory of liability (Cartoon Network v. CSC Holdings, 2008, p. 27).

The third claim was for the public performance of the recorded content. As anonlawyer, this may not seem to make a great deal of sense. If you were to read



the opinion, Judge Walker takes pains to ensure that all possible readings of thePlaintiff’s claim of public performance are addressed. It seems there are two primarytheories for liability for public performance. One theory would be that the programas recorded on the servers could be potentially played for everyone, as if the totalpossible audience of a performance should be considered to be the actual audience.The VCR metaphor would plainly deny this theory of liability, just because wemight go door to door playing videotape does not mean the law should regulateVCR technology as if we do. The second theory of liability is that by running alive cable channel and storing the information on a buffer, Cablevision would bepublicly performing for itself. The problem with this theory of public performance isanalogous to the first theory of public performance; never does the idea of the publicin the case law or legislative history come into the picture. For the Plaintiff at thispoint, it appears as if the public could exist without a single person being present.

Beyond the power of the VCR metaphor to remap the relationships and to providea coherent spatial metaphor whereby the copyright claims of Cartoon Network andcompany could be countered, there is a second operational spatial logic at playhere. The Plaintiff seeks to protect a thing they have produced in their facility thatis now being distributed. Cablevision provides a liminal space where the volitionaldecisions of both the Plaintiff and the cable customer can interface. In simple terms,Cablevision is a distributor. Distribution matters. The position of the distributorbecomes central in this vision of the spatial fix, not the receiver or the producer ofthe content.

By collapsing the liminal space, the Plaintiff’s argument became incoherent, as itattempted metaphorically to assert that Cablevision was not simply a liminal spacefor personal recordings and data storage, but rather some sort of common spherewhere data might mingle and disperse. The cable operator would appear not as adistributor of content and a provider of data services, but as a coconspirator for apublic of thieves. In this sense, the Plaintiff staked entirely too much on successfullyintroducing a faulty metaphor for a technology. The great weakness of the Plaintiff’smetaphor is that it depends on mystification—the RS-DVR would be shrouded withfear, uncertainty, and doubt. Let me be clear, the Cablevision decision at the CircuitCourt level did not introduce a new understanding of spatial relationships in newmedia. The decision used metaphors already in circulation: the politics of regulatingnew media would seem to be old.

Spatial understandings of new media

In a widely circulated report, cable industry analyst Leddy argued that the industryhad finally found a way to ‘‘solve its Hulu problem’’ (PR Newswire, 2009). Thesolution?—TV Everywhere, a new paradigm where cable television would no longerbe tied to a fixed head-end and home-end cable box, Leddy (2009) concludes:‘‘TV Everywhere will serve as a catalyst for a migration to more IP-centric videodelivery and, potentially, all-IP delivery in the long term.’’ Jezierski (2010) placed TV



Everywhere in the proper context—rather than seeing television and the Internetas separate, the idea of lightweight distribution enriches both. In plain terms, yourcable TV subscription will soon be accessible to you anywhere, not just at home.At the heart of TV Everywhere has been Comcast’s effort to renegotiate licensingdeals with content providers; providing an enhanced business model for the cableindustry, one that has its own proprietary web interface (Fernandez, 2009). Ideally,this system would be a combination of Internet-based cable delivery and access to anetwork DVR. Convergence would not just be about boxes and devices, but aboutrevenue streams. This effort has drawn Comcast to take unprecedented efforts towardvertical integration, such as purchasing NBC, to ensure that they would have access tocontent on their terms, and more cynically that they could gain control of a possiblechallenger, Hulu (Gustini, 2010).

The underlying advantage of the cable business is the inbound flow of money.Users pay for cable services. One of the largest challenges for the future of advertising-supported programming is the proliferation of media outlets, splitting the revenuestream into many individual flows. TV Everywhere essentially refigures this by posingas a centralizing node. TV Everywhere will gather stronger advertising metrics, whileretaining the stable revenue stream of a cable operator (Sternberg, 2009). Otherresearch has suggested that a ‘‘Google-like’’ central interface for programming wouldadd enough value to cable content that users would be willing to pay even more(PR Newswire, 2009). Kung-Shankleman (2000) contextualizes the role of culture inthe production of value by CNN and the BBC. A ‘‘Google-like’’ interface allows thedistributor to add value to the established library of media products—aggregation andprogram suggestion provided by digital distribution systems would be critical to thenew media value chain (Kung-Shankleman, 2000; Spurgeon, 2007). Organizationalcultures play a pivotal role in how media companies respond to market conditionsand the ways in which they add value to content that they traffic. To this point, theinterface would be straightforward and require just a username and password (Penn,2009). This changes the spatial fix in the media industries in a radical way.

TV Everywhere would allow cable operators to finally complete the visionoutlined in the Sloan Commission report, and go a step further by providing a levelof service that can only come through the Internet, with the lightweight appeal ofbroadcasting. Lightweight interfaces are provided for the benefit of the distributorand consumers. The popularity of online content distribution systems depends ontheir relative simplicity. Routing television programming through the Internet oncerequired extensive skill, specialized equipment, and risky downloading. Now, accessto content delivered through Internet protocol can be found on ordinary gameconsoles and even the television itself. Given the responses of consumers to slightvariations in the price level of online content distribution and the agility of themarket, it would be safe to say that the public is quite aware of online distribution(Gilbert, 2011). One common variation of this position is called cord-cutting, wherea user replaces the cable television service with satellite or Internet-based delivery.While these services might provide the appearance of distance from large distributors,



purchasing a program from Comcast or Cablevision via an online store operates bythe same spatial logic as TV Everywhere, and may be even more lucrative for thecable operator on a revenue-per-episode basis.

This is not just a story about Comcast; Verizon, Time-Warner, and others havesigned on (Penn, 2009). Recentralization seems to make sense to the industry. Thisindustry includes measurement firms as well. The coming structural transformationof online content access is not just going to be like Hulu on steroids, it will includemore ads, more tracking, and more capacity to know who is watching what, when,and where. The spatial logic comes full circle here—it is only when the spatial fixbetween the producer, the distributor, and the consumer is once again made concrete,that cable companies are in direct contact with viewers, that it becomes valuableagain.

Current online models for revenue fall short as they lack both the volumeof commercials and the articulation of commercials to larger audiences. Atkinsonreported in Broadcasting & Cable that the Disney-Hulu license agreement waspredicated on a 70/30 revenue split; where Hulu would keep only 30% of theincoming cash while Disney would receive 70% (Atkinson, 2009). The report isalso clear that even with keeping nearly a third of the revenue, Hulu may still losemoney (Atkinson, 2009). The largest problem with the Hulu model is the sparsedistribution of commercials, with only four appearing per half hour of television. Inan experiment in early 2009, Fox debuted ‘‘Remote Free Friday’’ where the amountof commercial time available per episode was reduced by half, with the idea thatfewer commercials could be sold for substantially more money. The experiment wasa failure, with the increased prices for advertising failing to cover the reduced revenuefrom the time not sold (Friedman, 2009). Alternatives to the traditional advertisingmodel are simply inadequate. Cash needs to enter the business ecosystem at somepoint if new programming is to be made.

In July 2009, Hulu ended speculation with the announcement that they wouldintroduce tiers of service, with some free service, and some programming requiringpayment for access called Hulu Plus (Perenson, 2010). Advertising to a narrowaudience is not the end of the story for television distributors; other sources ofmoney are critical. Similarly, TV Everywhere is attractive because the cable operatorshave a regular source of cash flow and a revenue model for paying carriage fees thathas already been proven. For all the excitement that has accompanied new businessmodels, the cable model continues to generate the largest and most stable revenuestream (Grego, 2009).

Conclusion

In the first turn of the media distribution story, broadcasting, the development ofcenters required the accumulation of capital in one place, with a diffuse audience. Theactual position of that audience was difficult to ascertain. In the cable relationship, asimilar number of distribution centers were physically connected directly to the site



of reception. This technology, in combination with the development of lightweightmeasurement systems, promised to make the entire grid knowable. Even moreadvantageous for the cable companies, the viewers directly channeled money tothe center through monthly payments. Just as this arrangement began to becomepopular, time-shifting technologies once again made the real activity of watchingtelevision impossible to fully monitor. DVD technologies resolved the issues withmeasurement by controlling when and where the media could be used. Early onlinetelevision websites appeared viable because of the currency of the broadcast model;the commercials sold during the programs would be the key source of cash. Yet, thismodel failed because the value of the commercials was inadequate. In the popularimaginary for the Internet, companies are all too willing to believe that they coulddistribute and profit from programming without any meaningful attention to thelogistics of distribution.

As seen in the Cablevision case study, this formulation of easy distribution framedin intellectual property law went further in the Plaintiff’s view, to elide the productionof a media artifact with its possible reception, as if the politics and presence of acirculation system were neither necessary nor existent. The arrival of the new TVEverywhere framework and the Cloud DVR challenges the spatial fix by making homespaces mobile, yet knowable. The Cloud DVR accomplishes this through ownershipof the means of distribution, rather than the ownership of content. Cablevision’svictory is important because it marks the ubiquity of the transition of cable companiesinto the cloud, a technological and economic development that media studies has notrecognized. Media studies scholars continue to read the future of television througha broadcast metaphor, when a cable metaphor is more appropriate.

This slippage between the two phases of the spatial fix is critical for understandingthe spatial politics of postnetwork television. For media companies, the mosteffectively profitable route for future operation would appear to be a conversion tothe second phase of the spatial fix. Profit would depend on shedding fixed capital, andallowing others to handle logistics. This analysis suggests that the emerging modelfor 21st-century conglomerates is not found in the second phase of the spatial fix,but in the first. Ownership of fixed capital is the key. In the Cablevision case study,the Second Circuit placed the interests of the owner of fixed capital assets before theowner of cultural assets. The spatial model from cable television, with direct paymentsfrom viewers to a service provider, did not disappear with the arrival of new media.If anything, new media have only strengthened the position of the cable businessmodel. The largest media company in the United States is headquartered in themedia capital of Philadelphia, not Los Angeles or New York. Future studies of mediacapitals will need to include the media capitals produced by distribution, rather thanthose that flourished during the era of debt finance. The management, politics, andcultural flows coming through hundreds of cable channels to fully mobile viewersare distinct from those of the broadcast model, even when the Internet is the modeof distribution.



For the future of content production, the rise of alternative financing offersa way to find financing that was not available through debt finance; cash-flowfinancing presents an alternative way of producing programming (Economist, 2011).Programs that would not have been viable to support with advertising find theirway to air, giving cable channels leverage to negotiate for higher carriage fees, andfor online distribution (Albinak, 2009; Thompson, 2011). Firms like Comcast thathave excellent debt-to-equity ratios could eliminate the need for debt financing,much as companies have attempted to displace debt finance through internationalcoproduction (Havens & Lotz, 2011). Disputes over which channels must be carriedand how those program sources are compensated will be increasingly important asdistributors become vertically integrated. Unfortunately, there is no reason to believethat vertically integrated distribution companies will not suffer the same fate that Lotz(2007) found for vertically integrated broadcasters, that the sense of risk inherent inprogram production made broadcasters conservative in their decision making, evenas their revenue rose. Losing money on a failed investment is painful, whether afirm uses transmission towers, satellites, or buried cable. What might offer hope forgreater access and program variety is that companies might operate with less fear ofdebt service. Losses would still be painful, but the sting dulled.

TV Everywhere and Cloud DVRs present an important development in the spatialpolitics of television because they represent closure for the diffusion models of bothbroadcasting and the Web. If the home of a cable subscriber follows them into theworld, and exists in any number of simultaneous locations, mobile privatization hasbeen extended beyond the home, or even the individual media user, to include thefunctional privatization of the means of transmission of their content. The tensionsinherent in privatization are striking: The cloud would magnify existing concernsabout decline of the public sphere, while simultaneously providing a new revenuemodel that would facilitate the creation of a host of programs that would not havebeen possible in the past. Revenue streams created through regular payments to acable company can finance the production of programming without the need toincur a great deal of debt. The dimensions of this tension will sustain critical studyfor years to come.

The decision of the Second Circuit, the impending merger of major mediacompanies, and changes in spatial metaphors show that the development of a newconception of spatial politics in the media industries is not coming in the near future,it is already here.

Notes

1 The case is known on the level of the Federal Circuit as Cartoon Network v. CSC Holdings.When the Supreme Court denied certiorari, the case was known as CNN v. CSC Holdings(Jaszi, 2009). Initially the case was known at the trial court level as Twentieth Century Foxv. Cablevision. This article refers to Cablevision rather than CSC Holdings, both becauseCablevision was the operator of the system, and Cablevision was the entity discussed inthe decisions.



2 The concept of the lifeworld comes from Habermas’ (1991) work on the relationshipbetween media, literacy, and democracy. The concept of lifeworld has been influential inpublic sphere and rhetorical studies as it posits a distinction between interaction withinstitutions and interactions in other social spaces.

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