May 29, 2009

DOJ: Let DVR Case Stand

The US Solicitor General has advised against the Supreme Court hearing Cablevision's remote storage digital video recording (RS-DVR) case, according to a report issued by sister publication CableFAX Daily.

That opinion of the Department of Justice (DOJ) would let stand the US Court of Appeals for the Second Circuit ruling last August that found Cablevision's use of this technology not to infringe upon content companies' copyrights. The case under appeal, Cable News Network, Inc. et al., vs. CSC Holdings, Inc., had shut down Cablevision's limited deployment, which had begun in 2006.

Cablevision executives indicated last week their plans to re-start the RS-DVR service this summer.

According to CableFax Daily, the 22-page brief signed by Solicitor General Elena Kagan includes the following: "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."

In January 2009, the Supreme Court had asked for the Solicitor General to weigh in on whether to grant the petition for a writ of certiori in this case. According to attorneys Loni Sherwin and Anthony Lupo of Arent Fox, major league sports, music and motion picture companies and others had filed eight amicus curiae briefs on behalf of Cable News Network. None had been filed in support of Cablevision.

The Kagan brief recommends denying that writ, arguing that "The Second Circuit is the first appellate court to consider the copyright implications of network-based analogues to VCRs and set-top DVRs, and its decision does not conflict with any decision of this Court or another court of appeals."

The Supreme Court itself makes the final decision. This brief from DOJ is not binding, although the Court usually follows its lead.

The current issue of Communications Technology contains an analysis of the technical implications of RS-DVR. (For more click here.) Yesterday the magazine hosted a pay-per-view webcast on the topic with the article's author, Time Warner Cable Chief Architect, Video Systems, Glen Hardin and two subject matter experts. (For more on the webcast, click here.)

- Jonathan Tombes