Supreme Court Asks Administration For Its Thoughts On Cablevision Remote DVR And Copyright

from the but...-which-administration? dept

There was a tremendously important copyright ruling in August of last year, concerning whether or not it was copyright infringement for Cablevision to run a remote DVR for its subscribers. The whole lawsuit (and the resulting decision) shows just how screwed up copyright law has become, and how every new generation of technologies requires twisting and patching copyright laws to have them make any sense at all (this is a problem, not a feature). In this case, everyone agrees that a DVR in your own home to time shift programs is perfectly legal. Cablevision is offering the same thing, but instead of the DVR being in your home, it's hosted in a Cablevision central location somewhere. However, pretty much everything else is the same.

Not so, say the TV networks and film studios, who claim that since the devices are on Cablevision's premises, now it's suddenly a copyright violation -- even if the person at home is the one pushing the button. It defies common sense to think that the identical action (clicking a button on a remote to record or watch an earlier recorded program) with an identical result (you can watch the program at your leisure) should differ in terms of its legality based on whether or not the box holding the content is in your living room or in Cablevision's warehouse. Yet, that's exactly how the studios and networks have read copyright law -- and a lower court originally agreed. The appeals court overturned the ruling, but even reading the decision, you get the feeling that they were twisting and turning to figure out a way to have copyright law actually make sense in this scenario.

The key question, which could impact numerous other innovative content services, concerns whether or not the "fleeting" copy that's made by Cablevision in the process of delivering the content to the end user is, in fact, an unauthorized copy. The appeals court said no (correctly from a common sense standpoint), but it had to tap dance around what the law and previous cases said to reach that decision. Not surprisingly, the networks and studios have appealed to the Supreme Court, and what happens next could be quite important in determining what's legal for plenty of other online services in the future.

While the Supreme Court has not yet decided whether or not it will hear the case, it has requested input from the Solicitor General on whether or not the SG believes that Cablevision is infringing on copyrights. When I read the LA Times piece, I wasn't sure which administration they meant, but Wired makes it clear it's the incoming one, and notes the conflict since the movie studios are represented by the same firm that Tom Perrelli came from. Perrelli, of course, is an Obama nominee for the justice department (and a former lawyer for the entertainment industry). Of course, it's not clear he'd have anything to do with the brief, as it would be for the Solicitor General -- and Obama has picked Harvard Law dean Elena Kagan, who among other things has been involved with Harvard's Berkman Center, and was instrumental in recruiting Larry Lessig back to Harvard from Stanford just a few months ago. Either way, while the case seems to focus on a fairly mundane aspect of copyright law, the eventual result could be quite important.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Lonnie E. Holder, Jan 14th, 2009 @ 7:35am

    From the what-about-a-meat-locker dept.?

    Mike:

    I have to agree with you occasionally just to show you that I attempt to be obejctive. Other than the biased charaterization (...just how screwed up...), I think you are correct.

    Put this case in other perspectives. If I purchase a legitimate electronic copy of anything over the internet, and that legitimate copy travels through a server that does not belong to me or the seller, then in theory that would be a copyright violation under this ruling.

    Further, what if I made a copy of music onto a cassette tape, but then I rented a locker somewhere (maybe a meat locker at a butcher) and put the cassette tapes into them? Well, the tapes were legal in my house, but they would not be legal in someone else's storage facility. I think you are correct, there is a lack of common sense here.

     

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  2.  
    identicon
    Anonymous Coward, Jan 14th, 2009 @ 8:00am

    What about the fleeting copy of every netflix dvd I rent that I keep in remote online storage that I also rent so that I can view while riding on the train on my phone?

    I suppose I could actually put it on the phone...but the point is...if only I can access it, how would it be different?

     

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  3.  
    identicon
    Nobody, Jan 14th, 2009 @ 8:01am

    Re: From the what-about-a-meat-locker dept.?

    Even better...for the electronic copy thing...

    I purchase music from iTunes to use on my player. Now I want to make sure I don't ever lose them, so I upload them to my on-line backup service provider.

    Uh-oh...suddenly I have broken a law because the file is in someone else's hardware (drive), even if it is my account?

    Sounds like total BS to me.

     

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  4.  
    identicon
    Anonymous Coward, Jan 14th, 2009 @ 8:24am

    Huh.

    Isn't this the same scenario as books-on-tape? That is, some entity is rerecording at a separate location the original content which is then played back at the consumer's convenience at a location of their choosing. In both circumstances the original product has been purchased either at a store or by a subscription-based service.

     

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  5.  
    identicon
    Dr. Kopp E. Wright, Jan 14th, 2009 @ 8:42am

    Re: From the what-about-a-meat-locker dept.?

    What the Cable Company is talking about is being THE GIANT REPOSITORY for other's copyrighted content....we've been through Grokster and Napster....In fact, this NEW REPOSITORY
    becomes a new network of unlicensed property....

    Many times, a Producer will grant the TV network a one time showing for a fee....this proposal creates a NEW Centralized NETWORK from which any $49 customer to cable can rewatch or postpone watch (indefinitely....or 5 days from original airing??????) ANY show!!!

    Also, this may be considered Landham territory....repackaging someone else's goods to be other than what they are and from ANOTHER SOURCE.

    Cable Company as a REPOSITORY would be a business of offering other people's property without compensation to the copyright owner.....that is BOGUS on its face....

    If "in your own castle" you create your own little network ...so be it....if it's in a meat locker....somebody needs to get permission (a license to re-broadcast for infinity or a limited period) or at least pay a standard or "statuatory" "hamburger" charge (should filet mignon cost more????).

    The laws are clear: "If you benefit from my property monetarily (and its not fair use), get my permission or pay me a licensing fee.

    What's so hard about that?

    You deserve a break today...

    The McDonalds Meat Locker
    and TV Re-Transmission Service

     

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  6.  
    identicon
    Skout, Jan 14th, 2009 @ 8:55am

    Real-world equivalent

    Dr. Kopp E. Wright has the correct mindset, whether feigned or not. While we as the consumers might want this sort of product, and want to see it established for our better entertainment, the simple fact is, the distributors have nothing to gain by granting it.

    Look at it from a material product perspective, even if it isn't that at all:

    Store A is offering a promotion, where customers are invited to sample Brand X free. People come in the store, have as much as they like of Brand X, and since they're already there, probably buy something.

    That doesn't give me the right, as Store B, to come in, take as much of Brand X as I want, and offer it in my store. I'd have to pay, or convince Brand X to do it in my store for free, too.

    The TV stations have to pay for the rights to broadcast shows. We appreciate being able to record and then skip the commercials that pay for most of that. Wanting to store someone else's product wherever you like sounds good for consumers, but it's flat out bad for business.

     

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  7.  
    identicon
    Wolfy, Jan 14th, 2009 @ 8:58am

    Off topic, but P.E. Obama did say he wanted opposing views in his Cabinet, and it sure looks like he's got it with respect to the "RIAA v. the people of the united states" situation, from this story.

     

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  8.  
    identicon
    Joe, Jan 14th, 2009 @ 9:02am

    Re: Re: From the what-about-a-meat-locker dept.?

    Following your logic, anyone who transmits any copyrighted work over the internet is making remote copies every time the packets are passed from one server to the next.

     

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  9.  
    identicon
    Anonymous Coward, Jan 14th, 2009 @ 9:36am

    The "in transit" copy of the content wouldn't be any different than the "in transit" copy of streaming movies from Netflix, not to mention any piece of content downloaded from the Apple iTunes store or any other online music/movie store.

    Seriously, the stupidity of this is mind-boggling. There is no legitimate reason for this case other than the fact that somebody is greedy beyond all reason. As far as I'm concerned, data packets in transit do not constitute a copy of the content.

     

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  10.  
    identicon
    DanC, Jan 14th, 2009 @ 9:43am

    Re:

    the simple fact is, the distributors have nothing to gain by granting it.

    The question is whether or not the distributors have any say in the matter, not if they're going to grant permission.

    That doesn't give me the right, as Store B, to come in, take as much of Brand X as I want, and offer it in my store.

    Neither your or Dr. Kopp E. Wright examples make sense. Cablevision (Store B) isn't reselling the television shows; it's storing a user-requested time-shift recording.

    Wanting to store someone else's product wherever you like sounds good for consumers, but it's flat out bad for business.

    Time shifting is legal, but you've both failed to actually address why it matters where the recording is stored.

     

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  11.  
    identicon
    Anonymous Coward, Jan 14th, 2009 @ 9:53am

    It seems all the more foolish if you consider the vast majority of users don't own their DVRs, they rent them. So in reality, you are still recording your shows on the cable company's HD's, they just happen to be located in your home.
    I think the two negative posters are extrapolating this to be that people can access shows whether or not they asked to record them or not, basically making everything "On Demand". As far as I can tell, this is not the case.

     

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  12.  
    identicon
    Anonymous Coward, Jan 14th, 2009 @ 9:58am

    Wonder if this will be the first of the many, many, many freedoms (oops changes) this band of hoodlums will take from it's slaves (oops citizens).

     

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  13.  
    identicon
    Xiera, Jan 14th, 2009 @ 10:13am

    Re: Real-world equivalent

    You're falling into the trap of equating digital products with physical products. Digital products can be cloned, unlike physical products. With physical products, if you have item X, that means I can't also have it, and vice versa. With digital products, however, it's possible for you and I to have the product at the same time.

    So the scenario in question is NOTHING akin to Store B taking stuff for free from Store A and selling it. It's more like... someone walks into Store A and wants a Brand X (or a Brand Y that they have to pay for). She isn't able to fit it in her car, but she pays for it anyways. As it turns out, her friend, who happens to work at Store B, was also in Store A at the time. Store A is unwilling to hold Brand X (or Y) for her, but her friend is willing to take it with him to Store B and store it there until she's able to return with a larger car. Say, for the sake of argument, that Store B is willing to store Brand X (or Y) for her, but she will have to pay a small fee because that's room they could be using to store stuff for their own customers. She drives to Store B later, in a larger car, and brings Brand X (or Y) home with her.

    Is there anything wrong with that? The clear correlation is that the TV Network is willing to give her X or Y program, but she is unable to watch it at that time and the Network is unwilling to show it at a time that is convenient for her. Cablevision, from the goodness of their hearts and for their wallets, is willing to store the content for her so that she can retrieve it at a time that works for her.

    Clearly, in both these scenarios, Store A (TV Network) could easily trump Store B (Cablevision) by simply allowing her to consume Brand X (the TV program) whenever she's ready to consume it.

    But why should Store B (Cablevision), who is clearly NOT claiming Brand X (the TV program) as their own and is clearly NOT actually making a copy of but rather storing the original Brand X, pay Store A (TV Network) to hold a product that Store A (TV Network) already been paid for (by the customer)?

    They shouldn't.

     

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  14.  
    icon
    Mike (profile), Jan 14th, 2009 @ 10:59am

    Re: Re: From the what-about-a-meat-locker dept.?


    The laws are clear: "If you benefit from my property monetarily (and its not fair use), get my permission or pay me a licensing fee.


    Your little aside "and its not fair use" is rather important, isn't it?

     

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  15.  
    identicon
    Skout, Jan 14th, 2009 @ 11:43am

    Real-world equivalent

    It's not a trap, it's product, whether virtual or physical, and it has to be treated as product or property. The company storing the product is benefiting monetarily from someone else's product.

    I guess I should have stated from the beginning that I am offering only the devil's advocate view; I surely feel that people should be able to record what they want, how they like, as they like, but I can also see that it presents problems for the people trying to run a business with that product.

    As for
    "Neither your or Dr. Kopp E. Wright examples make sense. Cablevision (Store B) isn't reselling the television shows; it's storing a user-requested time-shift recording."
    and
    "Time shifting is legal, but you've both failed to actually address why it matters where the recording is stored."

    While Cablevision says its only storing them for its subscriber, there's no real way for Cablevision to prove that. Whether you/them wants to admit it, it *IS* taking possession of product and storing it, and the owners *ARE* at least allowed the option to fight for just compensation.

     

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  16.  
    identicon
    Xiera, Jan 14th, 2009 @ 11:48am

    Re: Real-world equivalent

    Quick correction: the company storing the product is not benefiting from someone else's product, but rather from having open space to store said product. If you rent a parking space to store your car, should the parking garage pay the car dealership?

     

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  17.  
    identicon
    nasch, Jan 14th, 2009 @ 12:23pm

    Re: Re: Real-world equivalent

    That is beautiful, thank you.

     

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  18.  
    identicon
    nasch, Jan 14th, 2009 @ 12:28pm

    Re: Real-world equivalent

    While Cablevision says its only storing them for its subscriber, there's no real way for Cablevision to prove that.

    Why should they have to? Shouldn't it be up to the prosecution to prove that isn't what they're doing? I know, civil case, preponderance of evidence. But the accusation requires evidence, not just "we say you're distributing content illegally, now prove you're not". Or at least I hope that's still how this country works.

     

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  19.  
    identicon
    DanC, Jan 14th, 2009 @ 12:59pm

    Re: Real-world equivalent

    The company storing the product is benefiting monetarily from someone else's product.

    Which isn't illegal, and doesn't always require paying off the copyright owners.

    While Cablevision says its only storing them for its subscriber, there's no real way for Cablevision to prove that.

    If Cablevision can show they have taken the steps to insure that only the subscriber can access the shows they recorded, I don't really see a problem. If those security measures can be shown to be inadequate, then there might be a case against it.

    Whether you/them wants to admit it, it *IS* taking possession of product and storing it, and the owners *ARE* at least allowed the option to fight for just compensation.

    The copyright owners are allowed to fight for money they think they deserve, but it's difficult to see how it's just and what they would actually be getting compensated for. Cablevision isn't selling the copyright holders' content - they're providing storage space for time-shift recordings.

     

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  20.  
    identicon
    Daz, Jan 14th, 2009 @ 1:18pm

    Obviously fair use

    just obvious really, thanks for good e.g. xiera, its up to the business to sort out their business - but there's nothing inherently wrong at all with what Cablevision is doing, and certainly not criminal or illegal. Laws should change if it somehow is.

     

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  21.  
    identicon
    Mischa, Jan 14th, 2009 @ 1:21pm

    Re: Re: From the what-about-a-meat-locker dept.?

    No, its even worse than that. You haven't broken the law, your on-line backup service provider has.

     

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  22.  
    identicon
    Anonymous Coward, May 21st, 2009 @ 7:09am

    1. It is rare for the Supreme Court to grant a petition for certiorari, in which case the appeals court decision would stand.

    2. It is not uncommon for the Supreme Court to ask for a brief from the Office of the Solicitor General.

    3. The Supreme Court is highly defferential to its prior decisions, and to date it has not shown any inclination to revisit its Betamax decision.

    4. An important factor in its deliberations on petitions for certiorari is whether or not there is a difference of opinion between two or more of our Circuit Courts of Appeal.

    Given the above, unlesss the Solicitor General comes up with a compelling brief arguing against the decision by the appeals court, and given that it takes a plurality of votes by members of the Supreme Court to grant a petition for certiorari (I forget the precise number of justices who must agree), it would be unlikely that the petition would be granted. It is important to note, however, that by requesting the Solicitor General to participate it seems clear that this is not as easy issue of copyrigt law as some would try and make it appear.

     

    reply to this | link to this | view in thread ]


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