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.