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RS-DVR Fight Builds At Supreme Court

The media companies that sued Cablevision Systems over its planned network-based digital video recorder have won support from other content owners and groups in asking the U.S. Supreme Court to review a lower-court decision that the MSO’s service didn’t amount to copyright infringement.

On Wednesday, several media companies, sports leagues and organizations filed amicus (“friend of the court”) briefs in support of the plaintiffs in the case, which include Turner Broadcasting System, ABC, CBS, NBC, 20th Century Fox and Disney Enterprises.

The case involves Cablevision’s plans to offer a remote-storage DVR, or RS-DVR, that would allow subscribers to record and play back cable programs without needing an actual DVR in their home. Instead, those time-shifting functions would occur in the headend.

Media companies sued Cablevision in 2006 to block the RS-DVR, which was never commercially launched. A federal district court ruling against the MSO was reversed by the 2nd U.S. Circuit Court of Appeals on Aug. 5.

On Oct. 6, the plaintiffs filed a petition with the Supreme Court seeking a review of the 2nd Circuit’s ruling. In their request, referred to as a petition for a writ of certiorari, the media companies said the appeals court ruling “fundamentally destabilizes copyright law” and asserted that the lower court misinterpreted copyright laws and other court decisions.

This week, more than a dozen parties filed friend-of-the-court briefs in support of the petitioners, including MGM, Major League Baseball, the National Football League, the NCAA, Sony BMG Music Entertainment, Warner Music Group, the Screen Actors Guild and the Writers Guild of America West.

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 jointly by MGM, MLB, the NFL, the NCAA and others.

Other briefs were filed by the nonprofit Copyright Alliance—in what the organization said was its first brief filed in any court—as well as eight law professors who specialize in copyrights.

The Copyright Alliance has more than 40 institutional members, including Viacom, CBS, NBC Universal, Microsoft, MLB, the NFL, the Motion Picture Association of America, NASCAR, Time Warner and the Walt Disney Co.

However, two members of the Copyright Alliance—AT&T and the National Association of Broadcasters—are not supporting the petition because they believe the decision "was correctly decided," according to the organization's brief.

Asked to comment on the Supreme Court filings, Cablevision said in a statement: "We are confident in the legality of remote-storage DVR and are proceeding with our development plans."

In September, 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.

Cablevision has until Dec. 5 to respond to the petition. The Supreme Court will decide probably in early to mid-January whether or not it will take the case, according to lawyers involved with the case. The docket number for the petition is 08-448.