Media Wonk

Appealing briefs in Cablevision DVR case - June 11, 2007

Amicus briefs are now rolling in on behalf of Cablevision Systems in its appeal of a district court ruling that its remote-DVR service infringes programmers’ copyrights.

A coalition of 16 technology industry, library and public interests groups, including EFF, CEA, Public Knowledge, the Assn. of Research Libraries and the Computer & Communications Industry Assn., signed on signed on to this one, filed Monday.

Columbia University Law School professor Timothy Wu weighed in with his own last week.

Cablevision filed the main appellate brief with the Second Circuit May 30^th.

We should see the reply brief from the original plaintiffs in the case, a group of TV networks and studios, by the end of June, presumably along with its own group of supporting amici.

The case is being closely watched, particularly in the technology community, which sees a dangerous precedent in the district court’s ruling that Cablevision’s reliance on head-end servers to host individual subscriber’s time-shift recordings makes them liable to an infringement charge in a way that providing those same consumers with a set-top DVR would not.

In its main brief, Cablevision argues that the district court’s long technical exegeses of the differences between set-top and remote storage failed to provide any legal foundation for treating the two methods for time-shifting differently. Cablevision also argues that the court erred by failing to apply, or misapplying the relevant case law.

The amici make three main points regarding the potential legal and policy implications of the district court’s ruling:

• By charging Cablevision with direct infringement of their copyrights, instead of the more plausible charge of contributory infringement, the plaintiffs were attempting an improper end-run around the Supreme Court’s ruling in the Betamax case and other relevant case law, which would have precluded their claims.
• By treating head-end and set-top DVRs differently, the district court improperly invokes copyright law to “choose a winner” between two technologies competing to accomplish the same end.
• Many other types of functionality are migrating from user-hosted to networked-based and would be imperiled if the ruling stands.

From the point of view of content owners, however, perhaps the most trenchant analysis comes from HDNet cofounder and Dallas Mavericks owner Mark Cuban, who called the original suit against Cablevision “a HUGE [sic] strategic mistake,” by the studios.

In a March 24 post on his blog, Cuban argues that copyright owners should be encouraging innovative uses of their content by those paid to license it (like cable systems) as a hedge against those who use it without paying (like YouTube).

“When the opportunity arises to create space for those who are paying for your content vs. those who are stealing content, its a good idea to help out your paying customers,” Cuban wrote. “They ought to go back and sign a quick deal allowing [Cablevision] and all video distributors to offer Virtual DVRs as part of what they pay for content.”

Of course, that would be less fun for the rest of us.

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