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Supreme Court Asks For Government Input On Cablevision RS-DVR Case

The U.S. Supreme Court on Monday asked the Department of Justice to submit a brief reviewing an appeal by entertainment companies of a lower court’s ruling that would allow Cablevision Systems to legally deploy a network-based DVR service.

The Supreme Court asked the DOJ’s Office of the Solicitor General to file a brief expressing the views of the federal government. The office supervises and conducts litigation with the Supreme Court on behalf of the U.S. government. According to Reuters, it could be several months before the requested brief is filed.


Cablevision declined to comment.

The high 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 remote-storage DVR, or 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.

Chief Justice John Roberts and Justice Samuel Alito are not taking part in considering the case, according to Reuters, which noted that such recusals often happen when a justice owns stock in one of the companies involved in a case.

Cablevision, in a response filed 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."

In November, 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.

The brief filed by MGM, MLB, the NFL, the NCAA and others 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.

In its Dec. 5 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."