Public Knowledge has frequently taken aim at cable operators over network-management issues. But the group is squarely in the corner of Cablevision Systems when it comes to legal wrangling over the operator’s plans to roll out a headend-based digital video recorder service. Public Knowledge president Gigi Sohn wants the latest ruling in the matter to stand, enabling Cablevision to roll out the service and reinforcing fair-use rights established in the 1984 Sony Betamax case over videocassette recording. She spoke with Multichannel News Washington bureau chief John Eggerton about the issue.
MCN: Could you briefly explain the case?
Gigi Sohn: Cablevision has a remote storage digital video recorder service which is just like a TiVo or any other DVR, except there is no hard drive. The copies of the shows are stored on Cablevision servers. But for all intents and purposes, it operates like a TiVo. You use your remote controls to pick what programs you want to record, you record those programs and you play them back. But you don’t have a box with an expensive hard drive.
The studios and some cable networks sued for copyright infringement based on three theories. They said the little, temporary buffer copy that it made before digital transmission violated the right of reproduction. The fact that the copy of the show resided on the server was also a violation of reproduction rights, they argued. And third, they said that when Cablevision provides the recorded show violates the right of public performance. (Multichannel News parent Reed Elsevier is among those copyright holders seeking to overturn the Cablevision decision.)
MCN: So why wouldn’t that violate the public-performance restrictions? A cable operator has to get a separate right for VOD, doesn’t it?
GS: Yes, but the [appeals] court differentiated between VOD and this, because for video on demand, the cable operator makes certain movies available. The consumer isn’t the one doing the choosing. In that situation, it is the cable operator who chooses what library of shows will be available to the consumer. With the DVR, the only choosing the cable system does is what networks to put on its system. It doesn’t choose the programming available for the DVR. You choose that. That is the big differentiation.
MCN: But in the original lower-court decision, which went against Cablevision, the judge saw it differently?
GS: Yes, he basically looked under the hood of these technologies and said they were more like video-on-demand and less like the TiVo. It is really Cablevision that is making the copy. But the [2nd U.S. Circuit Court of Appeals] reversed on all grounds, finding that the buffer copy is temporary and that in order to violate the copyright it had to be more than transitory duration. The 2nd Circuit determined that the customer is doing the copying and, on public performance, that Cablevision was only providing the show to one person. The studios had said you had to look at the potential audience for the work. So if it went to more than one person, it was a public performance.
MCN: Where does the case stand now?
GS: The studios sought Supreme Court review, but we don’t think this is a case that is worthy of the Supreme Court taking for a variety of reasons. No. 1, there is no conflict in the circuit. It is also a very narrow decision. It is only about one cable remote DVR technology. Conversely, if the case were reversed there could be some serious damage done to technology.
The 2nd Circuit crafted a narrow decision and left a lot of doors open. For instance, they left the door open if companies wanted to assert contributory liability, saying that maybe Cablevision was inducing infringement. I don’t think they would win, but the point is they didn’t decide that. They frankly took pains, maybe in a way I might not have done if I was one of the judges, to make this as narrowly construed as possible.
MCN: What serious damage would result if the Supreme Court reversed the appeal decision and found for the studios?
GS: Every time you make a digital copy of anything, an audio stream, a video stream, you have to make a buffer copy first. Can you imagine what that would do to the cost of digital transmission or to the consumer if you had to pay a licensing fee? Think about cloud computing. If all remote storage is a copy and the host is liable, cloud computing is dead.
MCN: Who is on the side of Cablevision and Public Knowledge?
GS: Let’s not put it that way. I’ll tell you who is on the side so far of the Solicitor General telling the court not to take the case — the White House and the [Federal Communications Commission]. On the other side so far [are] the Patent and Trademark Office and the Copyright Office. (The FCC declined comment, but a White House spokesman said it has not weighed in. “The White House has not advised the Department of Justice whether to seek Supreme Court review of this case or to decline to do so,” said Ben LaBolt. “Various agencies and offices have offered opinions and expressed views about the implications of the case, but it’s up to the Department of Justice to determine whether a Supreme Court review is merited.”)
MCN: You have previously been concerned about concentration of control with cable operators. Is there no concern about Cablevision controlling content on its centralized servers?
GS: I’m more concerned about the concentration of control of copyrights and that a handful of powerful copyright holders are trying to sue a cool, consumer-friendly technology out of existence.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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