Cable Operators

Cablevision Fights DVR Ruling

6/01/2007 8:05 PM Eastern

Cablevision Systems's long-awaited appeal of a lower court decision that effectively squashed its efforts to introduce a network digital video recorder inched forward last week, after the cable company filed a brief in with the 2nd U.S. Circuit Court of Appeals in Manhattan.

Cablevision's argument to reverse the lower-court decision — made on March 22 by U.S. District Court Judge Denny Chin — came as no surprise. While the 77-page brief cites dozens of cases, it appears that Cablevision's main argument is that Chin's ruling flies in the face of the landmark 1984 Supreme Court decision — Sony Corp. of America vs. Universal City Studios — which allowed consumers to buy and use videocassette recorders.

While the Cablevision brief argues each point of Chin's ruling, the judge's main objection to the product — called the Remote Server-DVR — was that it violated copyright law because the cable company had physical control of the servers that perform the actual recording, despite Cablevision's claims that customers control the recording and playback of shows. Chin also ruled that because Cablevision would have an ongoing relationship with the RS-DVR customers — through service fees, equipment maintenance and the company's continuing ownership of that equipment — it constituted a violation of the copyrights of content providers.

Although Cablevision argued to the contrary in the original suit, Chin denied those claims.

In its brief, Cablevision argued that if Chin's ruling is upheld, it would render moot several currently lawful devices and businesses, including Internet-service providers that provide e-mail service, set-top box DVRs provided by cable companies and even self-service copy centers. In its brief, Cablevision argues that none of that equipment is controlled or owned by the consumer — ISPs own and control their servers, cable companies own the set-top DVRs and do not allow user access to their contents and self-service copy centers own their photocopiers.

“Relying on 'physical control' would condemn ISPs and self-service copy shops, which house the systems their customers use,” the brief stated. “While a subscriber cannot 'walk into Cablevision's facilities and touch the RS-DVR,' a Netcom subscriber cannot walk into Netcom's offices and 'touch' the server where his e-mail is stored.”

The original suit, brought by 20th Century Fox Film Corp., Universal City Studios, Paramount Pictures, Disney Enterprises, and broadcast networks ABC, CBS and NBC, was filed last May.

The appellee's brief is due by June 29 and Cablevision's reply is due July 20. The appeal is set to be heard by the court the week of Aug. 6.

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