Progress and Freedom Foundation Files Brief vs. Cablevision’s Network DVR

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Cablevision Systems was served its first blow in its efforts to appeal the federal court ruling that quashed its remote-server digital-video-recorder product (RS-DVR) after a nonprofit think tank filed a brief with the appellate court July 12 urging that the original ruling be upheld.

In the brief, Progress and Freedom Foundation senior adjunct fellow Solveig Singleton argued that Cablevision’s contention that the RS-DVR should be treated like existing DVRs or video-cassette recorders within customer homes is unwarranted.

“The level of control that Cablevision exercises over the stream of programming and Cablevision's superior understanding of the program's status under license takes this case well out of the realm of cases involving photocopy machines, the VCR and the Internet,” she wrote.

Singleton added that allowing Cablevision a broad exemption to the copyright laws with the RS-DVR would be a disincentive for programmers to produce new content.

“In a nutshell, content must be protected or it will not be produced,” she wrote.

Singleton urged both sides to go to the negotiating table to hammer out deals.

“Exemptions from liability thus belong where it is reasonably certain that negotiations are impracticable and will remain so in the near future. That is not the case here,” Singleton wrote. “Cable systems that wish to offer services such as the one contemplated by Cablevision might find that the bargaining goes pretty well, for if content creators push too hard, they risk being confronted by the more difficult problem of widespread consumer adoption of powerful DVRs.”

This was the first amicus brief filed in court in favor of the original ruling. In June, three briefs -- from the Consumer Electronics Association and 10 other industry groups; Columbia University School of Law professor Timothy Wu; and a group of 28 other prominent law-school professors -- were filed supporting Cablevision’s argument.

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

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

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