No Decision in Cablevision Network-DVR Case

New York -- The judge presiding over the copyright-infringement case filed by cable- and broadcast-TV content companies against Cablevision Systems -- attempting to block its proposed network-digital-video-recorder service -- did not issue a ruling at a summary-judgment hearing here Wednesday.

A decision by Judge Denny Chin of the U.S. District Court for the Southern District of New York about whether to decide the suit in favor of the defendants or the plaintiffs, or to send the case to trial, could come within a few days or take up to several weeks.

In two days of hearings this week in Manhattan, lawyers for each side presented their arguments and answered detailed questions posed by Chin.

The content providers -- which include 20th Century Fox Film, Turner Broadcasting System, Paramount Pictures, Disney Enterprises and broadcast networks ABC, CBS and NBC -- alleged that Cablevision's planned network-based DVR service misappropriates TV programming by generating a second, unauthorized "stream" of programming that would be stored on Cablevision-controlled servers.

The plaintiffs' lawyers contended that the planned system -- referred to in court papers as "RS-DVR," for "remote storage" -- would be tantamount to a massive video-on-demand service that should be covered under separately negotiated licenses.

"Cablevision wants to double-dip," said Bob Garrett, an attorney with law firm Arnold & Porter, which is representing the plaintiffs. A compulsory license, he told the court, "does not allow cable operators to deliver programming anytime they please."

Cablevision's lawyers argued that RS-DVR is no different than conventional set-top DVRs, which allow subscribers to automatically record and then play back any programming they receive over a cable system -- a fair use of copyrighted material under U.S. laws, according to the MSO.

"All we're doing is facilitating the customer's fair use," said John C. Englander of law firm Goodwin Proctor, representing Cablevision.

Englander also noted that programmers haven't challenged the legality of conventional DVRs. No specific legal precedent has established whether DVRs facilitate copyright infringement, although Cablevision cited the 1984 Sony Betamax case, in which the U.S. Supreme Court found Sony not liable for creating a device that enabled copyright infringement.

The planned Cablevision RS-DVR system is based on VOD systems from Arroyo Networks (now part of Cisco Systems). Cablevision has not rolled out RS-DVR commercially, having initiated only a technical trial of the service in Woodbury, N.Y., on Long Island.