Cablevision Defends Network DVR

Cablevision Systems said its network DVR service involves “lawful consumer copying” in a filing Friday with the U.S. Supreme Court, arguing that a lower court ruling that the service does not violate copyright laws should not be reviewed.

Cablevision filed the document in opposition to a request to the Supreme Court by the media companies that sued to stop the MSO’s remote-storage DVR, or RS-DVR, which as described would allow subscribers to record and play back cable TV programs without needing an actual DVR in their home.

“For decades, consumers have lawfully used various technologies—from the Betamax, to VHS VCRs, to digital video recorders [DVRs]—to record television programs for later viewing,” Cablevision’s filing said. "The RS-DVR does not allow consumers to do anything they cannot already lawfully do with other devices."

The Supreme Court is expected to decide in early to mid-January whether or not it will review the case.

The media companies suing Cablevision -- Turner Broadcasting System, ABC, CBS, NBC, 20th Century Fox, Paramount Pictures and Disney Enterprises -- accused the cable company of directly infringing their copyrights with the RS-DVR, which was never commercially launched.

The MSO said their petition to the Supreme Court “fails to identify any colorable conflict with another decision” and that they “nowhere explain why the robust doctrine of contributory infringement is inadequate to address their hypotheticals and, more generally, the intentional facilitation of unlawful copying they purport to fear.”

Cablevision said “there is no reason to grant review in a narrow case involving only direct-infringement claims and lawful consumer copying.”

Cablevision lost the first round in the case in a New York federal court, but in August the 2nd U.S. Circuit Court of Appeals reversed the decision and determined that the RS-DVR did not violate copyright laws.

Following that victory, Cablevision chief operating officer Tom Rutledge said the MSO would begin trials for a network DVR service and launch an initial rollout early next year.

On Oct. 6, the media companies filed a petition with the Supreme Court seeking a review of the 2nd Circuit’s ruling, which they argued “fundamentally destabilizes copyright law” and misinterpreted copyright legislation.

Cablevision, in its reply Friday, said that while petitioners claim the 2nd Circuit’s decision will “disrupt the marketplace, they identify no existing technology that will improperly escape liability based on the court’s ruling, resorting instead to hypothetical technologies that should be left for future courts to address if they arise.”

Last month, more than a dozen media companies, sports leagues and organizations filed amicus (“friend of the court”) briefs in support of the plaintiffs in the case.

Briefs were filed by or on behalf of MGM, Major League Baseball, the National Football League, the NCAA, Sony BMG Music Entertainment, Warner Music Group, the Screen Actors Guild, the Writers Guild of America West and the Copyright Alliance, a group with more than 40 institutional members.

Copyright Alliance members include Viacom, CBS, NBC Universal, Time Warner Inc., and the Motion Picture Association of America. Two members of the alliance -- AT&T and the National Association of Broadcasters -- did not support the petition, according to the organization's brief.

The 2nd Circuit ruling, by allowing Cablevision to deliver programming for a separate RS-DVR fee, “contravenes clear congressional intent” with respect to the cable compulsory licensing plan of the 1976 Copyright Act requiring simultaneous retransmission, according to an amicus brief filed by MGM, MLB, the NFL, the NCAA and others.

In its response, Cablevision argued that "nothing in the Copyright Act gives authors the right to demand royalties from every business that merely enables lawful fair use of their works."