Supreme Court Refuses To Hear Cablevision Remote DVR Case: Good News, For Now

from the at-least-for-a-little-while dept

Well, here's a bit of good news this Monday. It appears that the Supreme Court has listened to the Solicitor General, and refused to hear the appeal concerning Cablevision's remote DVR offering. This is good for a variety of reasons. We've discussed how this is an important case on a variety of levels, but also a tricky one. The appeals court ruling got the right results (saying a remote DVR was legal, and that buffer copies were not infringing) but really had to twist itself into a knot to explain why -- demonstrating just how ridiculous copyright law is these days.

The basic facts are quite straightforward. A DVR, such as a TiVo that sits next to your TV is perfectly legal. Time shifting content has been shown as legal, and not infringing by the courts in the past. That's great. However, Cablevision effectively built a remote DVR. It sat in Cablevision's datacenter, rather than next to your TV. Otherwise, it did exactly the same thing. From a user's perspective, it was almost identical. You could save shows and forward and rewind shows. Functionally identical. Hollywood insisted that by moving where the box lived, it somehow made it illegal, coming up with absolutely ridiculous arguments about how it's like Cablevision setting up a gun for someone to shoot by pushing a button -- ignoring that in the equivalent reality, no one's getting shot, they're just doing something that's already been found to be perfectly legal (time shifting).

That said, this question is hardly over. While the appeals court decision came to the obviously correct conclusion, the fact that it did so in such a roundabout, and at times tortured, way, actually suggests that we'll be seeing this issue come up elsewhere in other courts in some manner. Eventually there's likely to be a split of some sort, and perhaps then the Supreme Court will weigh in. Still, given how screwed up the Supreme Court seems to get when it comes to copyright, delaying that seems like a good thing. It's quite strange that the Supreme Court seems to do such a good job with patent law, but gets totally twisted around when it comes to copyright law. Still, in the meantime, Cablevision can move forward with its remote DVR, and at the least, folks in the Second Circuit can rest assured that buffered copies are not infringing.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    YouAreWrong, Jun 29th, 2009 @ 11:15am

    supreme court and copyright law

    how has the supreme court "messed up" copyright law?

    feist publications - telephone numbers, addresses, and names are not copyrightable (SCOTUS reversed BOTH of the lower courts)

    fogerty - defendants to copyright suits get the same standard as plaintiffs when moving for attorneys fees, not a ridiculously higher standard (SCOTUS reversed both lower courts)

    campbell v. accurose - 2 live crew's parody of pretty woman can be parody (undetermined fact for remand), but parody is fair use as a matter of law (SCOTUS reversed the appellate court).

    sony - time shifting is fair use (SCOTUS reversed appellate court).

    the only thing that has been pro-copyright out of the supreme court in years has been grokster, and even then, there's nothing wrong with inducement infringement. it's one thing if i set up a service and you happen to do something illegal with it. but when i start advertising that you can (or should) do illegal things with it, then i should be liable too. the only thing you can possibly bitch about is that big content has a hugely different idea of what actually constitutes inducement -- but that's big content, not the supreme court. and if you didn't notice, big content has been losing this battle miserably.

     

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  2.  
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    Ima Fish (profile), Jun 29th, 2009 @ 11:21am

    "the Supreme Court seems to do such a good job with patent law, but gets totally twisted around when it comes to copyright law."

    I think it has to do with the fact that the monopoly granted by copyrights lasts so long that people don't even recognize that copyright monopolies are supposed to end, and furthermore, they tend to view copyright as a property right, along with the same emotional connotations.

    However, while the terms granted to patents have been extended slightly over the years, the terms are still limited. In our minds, patents are not emotionally equated with property rights as copyrights currently are.

    And it also might be because patents are generally useful processes that we intuitively recognize should not be locked up forever minus a day.

    What we have to do is get people to view copyrights in the same pragmatic light that we view patents.

    This would be a topic for an interesting paper, why the monopolies associated with patents and copyrights took such different paths.

     

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  3.  
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    Ima Fish (profile), Jun 29th, 2009 @ 11:23am

    Re: supreme court and copyright law

    "how has the supreme court "messed up" copyright law?"

    You're forgetting the awful Eldred v. Ashcroft decision.

     

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  4.  
    identicon
    C.T., Jun 29th, 2009 @ 11:45am

    Re: Re: supreme court and copyright law

    Ima -

    What do you consider "awful" about the Eldred case? To be clear, I think that the CTEA was awful from a policy perspective, but I think there is merit in the Court's position that questions of policy are rightly left to Congress unless there is a clear constitutional conflict. In short, while I would have preferred a different outcome, I think the majority opinion's decision was adequately reasoned.

     

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  5.  
    identicon
    YouAreWrong, Jun 29th, 2009 @ 12:19pm

    Re: Re: Re: supreme court and copyright law

    CT is correct. While the policy sucks, nothing SCOTUS did was technically wrong in the law. Copyright is an affirmative right -- the public domain and fair use are not. You can't force anyone else to do something by claiming fair use or public domain. These two merely limit copyright.

    Oh, and I forgot to mention Tasini in the list of SCOTUS cases, which is a stupid case and contractually moot (every IP contract has a tasini clause now).

    Overall, the Supreme Court generally understands copyright.

     

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  6.  
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    Ima Fish (profile), Jun 29th, 2009 @ 12:30pm

    Re: Re: Re: Re: supreme court and copyright law

    "Overall, the Supreme Court generally understands copyright."

    That may be true, but from the tortured mess you wrote, it's quite clear that you understand absolutely nothing about copyright. God, what ignorant tripe!

     

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  7.  
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    ChrisB (profile), Jun 29th, 2009 @ 12:31pm

    Re: supreme court and copyright law

    I have to say that this 2nd Circuit Ruling is a fascinating read.

    http://www.scribd.com/doc/4490651/cablevision-remote-dvr-2nd-circuit-ruling

    They point out some idiotic interpretations the district court made. I love how lawyers insult each other so politely.

     

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  8.  
    identicon
    YouAreWrong, Jun 29th, 2009 @ 12:43pm

    Re: Re: Re: Re: Re: supreme court and copyright law

    the tortured mess you wrote, it's quite clear that you understand absolutely nothing about copyright. God, what ignorant tripe!

    What are you talking about? My first post was almost exactly the same style as any law weekly, and my second is a quote almost straight from the EFF.

    There's a difference between what copyright is and what you want it to be. I would like to see fair use be an affirmative right, and copyright made into a social contract (thus all rights and rulings would only apply to copyrights created after the bill/opinion), but that's definitely not what the law is.

     

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  9.  
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    Mike Masnick (profile), Jun 29th, 2009 @ 12:53pm

    Re: Re: Re: supreme court and copyright law

    What do you consider "awful" about the Eldred case? To be clear, I think that the CTEA was awful from a policy perspective, but I think there is merit in the Court's position that questions of policy are rightly left to Congress unless there is a clear constitutional conflict. In short, while I would have preferred a different outcome, I think the majority opinion's decision was adequately reasoned.

    I disagree. I think Eldred was terribly reasoned, ignored some basic First Amendment issues, and showed serious confusion by the Justices. I'll be working on a more detailed post about this soon... there's a good book that just came out that spends a good chapter detailing how poorly reasoned the SC's Eldred decision was.

     

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  10.  
    identicon
    C.T., Jun 29th, 2009 @ 1:04pm

    Re: Re: Re: Re: supreme court and copyright law

    Are you referring to "Copyright's Paradox" by Neil Weinstock Netanel?

    I picked that book up recently, but have yet to read the chapter on Eldred.

    Having read many of Netanel's law review articles, I am fairly sure that I can anticipate his argument. However, I look forward to your write-up.

     

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  11.  
    identicon
    Whisk33, Jun 29th, 2009 @ 1:16pm

    Youtube

    ...setting up a gun for someone to shoot by pushing a button...

    Will someone please go to the firing range, and while breaking no laws or safety violations, do this and upload it to youtube. That would be great.

     

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  12.  
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    Jiminy Cricket (profile), Jun 29th, 2009 @ 1:53pm

    Re: Youtube

    Did you forget the internet enable hunting brouhaha?

    http://news.bbc.co.uk/2/hi/technology/4022147.stm

     

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  13.  
    identicon
    Anonymous Coward, Jun 29th, 2009 @ 8:19pm

    At the end of the day, I think the supreme court wants a more complete case to look at before they consider it. This is the type of the iceberg, I think that 12 - 18 months from now the damages (if any) will be clearer, as will the actual usage and technology in play.

    I am thinking that this will come back to another courtroom near you soon for another round, and that one will likely make it all the way to the end.

     

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


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