Last Friday, the Department of Justice’s Solicitor General filed a brief recommending the U.S. Supreme Court not review an appeals court ruling upholding the legality of Cablevision’s network-based DVR service. (See DOJ Recommends Supreme Court Not Take RS-DVR Case.)
In the end, the media companies opposed to Cablevision’s RS-DVR simply didn’t have a logical argument for why the service violated their copyrights.
As Solicitor General Elena Kagan pointed out, the cable programmers and movies studios weren’t challenging traditional DVRs. The Cablevision RS-DVR is functionally equivalent to the DVR set-tops widely used by cable customers — and the technical differences between the two approaches, she wrote, are “largely irrelevant to the determination of who would ‘make’ the copies.”
“For the last 30 years, consumers have been able to record televised programs and to play back the recorded programming at a later time,” Kagan wrote. “Respondents’ proposed RS-DVR service is part of a broader transition from analog to digital recording and playback, and from business models where consumers purchase a tangible item to those where they pay for a service.”
The content owners argued that the RS-DVR was more like VOD, a service that represents a “public performance” which requires separate licensing terms.
But Kagan said the 2nd Circuit “repeatedly explained” its reasoning for rejecting that argument: Not only would each RS-DVR transmission be sent to a single recipient, but (1) each transmission would be made using a unique copy of the relevant program and (2) each transmission would be made solely to the person who had previously made that unique copy.
In other words: The RS-DVR is functionally like a regular DVR (or VCR), the fair use of which the petitioners were not disputing.