US Solicitor General Recommends that Supreme Court not Revisit Cablevision RS-DVR Case

--Cablevision Hopes to Launch Network DVR Service This Summer

US Solicitor General, Elena Kagan, has recommended that the US Supreme Court not revisit a US appeals court's decision last August to overturn a March, 2007 lower court ruling in favor of the plaintiffs in the Cablevision Remote Storage (RS)-DVR case. Cablevision was sued by ABC, CBS, NBC Universal, TBS, Paramount Pictures, Twentieth Century Fox and The Walt Disney Company, after announcing back in 2006 that it would launch a network DVR service which it said would allow individual customers to record and store standard- and high-definition programs in their own dedicated space within its headend facilities, using their existing, basic digital set-top boxes, and which it claimed would be "permissible" under current copyright law, because the precedent set by the so-called Sony Betamax case allows individual consumers to make copies of programs for personal consumption regardless of whether those copies are stored locally or remotely. The plaintiffs argue that the service--which Cablevision believes will provide DVR functionality significantly more cost-effectively than set-top-based alternatives--would infringe upon content owners' copyrights.

Solicitor General Kagan was asked by the Supreme Court to submit an advisory brief on the case back in January. While her recommendation to the court is not binding, it is considered likely to weigh heavily on the court's decision whether or not to take up the case. "Network-based technologies for copying and replaying television programming raise potentially significant questions, but this case does not provide a suitable occasion for this court to address them," Kagan's brief stated. "The Second Circuit is the first appellate court to consider the copyright implications of network-based analogues to VCR's and set-top DVR's, and its decision does not conflict with any decision of this Court or another court of appeals. The parties' stipulations, moreover, have removed two critical issues--contributory infringement and fair use--from this case. That artificial truncation of the possible grounds for decision would make this case an unsuitable vehicle for clarifying the proper application of copyright principles to technologies like the one at issue here. From the consumer's perspective, respondents' RS-DVR service would offer essentially the same functionality as a VCR or a set-top DVR. And although scattered language in the Second Circuit's decision could be read to endorse overly broad, and incorrect, propositions about the Copyright Act, the court of appeals was careful to tie its actual holdings to the facts of this case. The petition for a writ of certiorari therefore should be denied." (Note: the Los Angeles Times has the full text of the brief at: "We're obviously pleased with the Solicitor General's recommendation and continue to believe in the legality of remote-storage DVR's, as validated by the unanimous Second Circuit decision," Cablevision responded to Kagan's brief in a prepared statement, issued Friday.

According to a report from Sanford C. Bernstein analyst, Craig Moffett, who was recently briefed by Cablevision COO, Tom Rutledge, Cablevision is planning to deploy RS-DVR at some point this summer. "We'll be rolling out our first product based on [the RS-DVR] later this summer," Moffett quoted Rutledge as saying. "We'll move to centralized storage." Rutledge also told Moffett that he believes Cablevision can work out a compromise with programmers: "I think ultimately we'll end up in some commercial arrangement with programmers," he said. "We're having discussions with the copyright holders that can make the network DVR model work in their best interests. If they allow physical DVR's to proliferate, it takes it out of their control. If they do it centrally, they could control ad-skipping, measurement, and the timeliness of advertisements would clearly be in the interests of the programmers."

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