Cablevision DVR Stance Is Bolstered

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Cablevision Systems’ appeal of a lower court decision that effectively squashed its plans for a remote-server digital video recorder (RS-DVR) got a boost after a group of prominent copyright-law experts and public-interest groups filed briefs with the appeals court supporting Cablevision’s stance.

In three amicus (“friend of the court”) briefs filed with the U.S. Court of Appeals for the Second Circuit in Manhattan on June 8, the Consumer Electronics Association and 10 other industry and consumer groups; Columbia University School of Law professor Timothy Wu and a group of 28 other law school professors — including Stanford University Law School professor Lawrence Lessig, a well-known advocate of less restrictive copyright laws — all supported Cablevision’s contention that the RS-DVR does not violate copyright law.

Wu, who specializes in copyright and telecommunications law at Columbia, claimed in his brief that the lower-court decision — made on March 22 by U.S. District Court Judge Denny Chin — should be overturned because it appears to favor one technology — device-based DVRs — over the other — network, or RS-DVRs.

“Here, the district court’s approach would create a major advantage for Device DVR technologies (or “STS-DVRs” in the district court’s terminology), by holding Network DVRs (or “RS-DVRs”) subject to a different and more stringent legal standard,” Wu wrote. “There is no reason that copyright law should chose a winner in the DVR market. Both Network and Device DVRs should be subject to the same standard.”

Lessig and the 27 other law professors took a more focused tack in their brief, honing in on the lower court’s ruling that because the RS-DVR temporarily copied programming onto the random access memory buffers within its servers it was violating copyright law. The professors argued that all electronic devices from computers and cell phones to fax machines and digital televisions use RAM buffers to properly process information. Extrapolating the lower court ruling could have dire consequences.

“Under the District Court’s ruling, each and every lawful use of a digital device of any kind — turning on a digital TV, or browsing a Web site on the Internet — becomes an act fraught with potential copyright liability,” the brief stated.

The consumer advocates agreed with Cablevision’s argument that because the cable company has no control over what shows would be recorded or when, there is no copyright infringement.

The appeal is expected to be heard by the court the week of Aug. 6.

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