DOJ Recommends Supreme Court Not Take RS-DVR Case

The Department of Justice's Office of the Solicitor General recommended in a filing Friday with the U.S. Supreme Court that the high court not hear an appeal filed by media companies and others seeking to overturn a ruling that upheld the legality of Cablevision Systems' network-based DVR service.

The Supreme Court in January asked the Solicitor General -- the U.S. government's representative before the court -- to submit a brief reviewing the appeal.

In her brief, Solicitor General Elena Kagan wrote that "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."

Cablevision in a statement said: "We're obviously pleased with the Solicitor General's recommendation and continue to believe in the legality of remote-storage DVRs, as validated by the unanimous Second Circuit decision."

Cablevision may launch the Remote Storage-DVR, or RS-DVR, as soon as this summer, chief operating officer Tom Rutledge said, according to a report last week from Sanford Bernstein analyst Craig Moffett.

The Supreme Court is considering a request by several broadcasters and movie studios to review a ruling by the 2nd U.S. Circuit Court of Appeals, which reversed a previous finding that the MSO's RS-DVR violated copyright laws. Turner Broadcasting System, ABC, CBS, NBC, 20th Century Fox, Paramount Pictures and Disney Enterprises sued Cablevision in 2006, accusing the cable company of directly infringing their copyrights with the RS-DVR, which has never been offered to consumers.

Kagan said the 2nd Circuit's decision that Cablevision's RS-DVR does not violate copyright laws "does not conflict with any decision of this Court or another court of appeals."

Furthermore, she wrote, the case "presents an unsuitable vehicle for clarifying the applicable legal framework because the parties' agreement not to litigate two critical issues -- secondary liability and fair use -- distorts the questions that remain and would prevent the Court from seeing whole the fundamental controversy in this case."

The Supreme Court, Kagan noted, has never addressed "whether a commercial actor who is charged with direct infringement may defend on the ground that he performed the copying at the behest of a customer who himself would have a fair-use defense." However, because the fair-use issues are not in dispute, this case would not consider this question, which "has assumed great significance," she wrote.

Public Knowledge president Gigi Sohn gave the Solicitor General's brief a thumbs up.

"The Justice Department made the correct call on behalf of consumers
when it recommended earlier today that the Supreme Court not hear the
challenge to Cablevision's remote digital recording service (RS-DVR),"
said Sohn, who previously told Multichannel Newsin an interview that both the White House and the Federal Communications Commission backed the decision not to seek cert.

wholeheartedly agree with the Solicitor General. Common sense would
dictate that a recording is a recording, whether made on a set-top box
or in a cable headend," Sohn said. "We hope the U.S. Supreme Court
follows this advice and removes any legal obstacles from the
Cablevision service going forward."

Cablevision, in a response filed in December 2008 with the Supreme Court, said its network DVR service involves "lawful consumer copying" that "does not allow consumers to do anything they cannot already lawfully do with other devices."

The companies looking to block the RS-DVR -- which include MGM, MLB, the NFL and the NCAA -- have argued that 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.

Cablevision countered in its Dec. 5 response 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."

In her filing Friday, Kagan wrote that while some aspects of the 2nd Circuit's "reasoning on the public-performance issue are problematic, the court's ultimate holding is less far-reaching than petitioners suggest and is insufficiently important to warrant this Court's review, especially in a case that does not satisfy the Court's traditional criteria for granting a writ of certiorari."

One of the parties that filed an amicus brief with the Supreme Court supporting the plaintiffs was the Copyright Alliance, which said it had never filed a brief in any court before. The alliance includes the Motion Picture Association of America, the NAB, major sports leagues, and other copyright holders including Reed Elsevier, parent company of Multichannel News.

The case is docket No. 08-448 before the Supreme Court.