Copyright Alliance Allies with SCOTUS Over DVR

Ars Technica writes: What case could be so important that it prompts the Copyright Alliance to file its first-ever "friend of the court" brief--and with the Supreme Court, no less? Cablevision's remote storage DVR. The Copyright Alliance worries that this summer's appeals court ruling, which legitimized the product, "validates a well-worn stratagem for evading responsibility and undermining licensing."

The dispute centers on Cablevision's RS-DVR, which locates all the necessary DVR equipment in the company's central office, not in the customer's living room. Cablevision pays a license fee to broadcasters in order to stream their content directly to users, but it does not pay anything extra for its new system, which creates a 1.2-second content buffer of all outgoing content to make recording possible the moment the customer presses the button. In essence, the entire cable network becomes a long-distance remote control device that is operated by the customer sitting comfortably on a couch, telling the system he or she wants to record some new episode of Lost.

This is all perfectly legal when done in the home, but content owners argue that a company like Cablevision is actually infringing its rights. Copyright law in the US provides several enumerated rights, including the reproduction right and the public performance right; both are said to be violated by the RS-DVR system.

But Cablevision won in court this summer, as an appeals court found little functional difference between the system and a traditional DVR set up. Cablevision still requires customers to select shows for recording, rather than simply recording everything on a television and offering it up to users on-demand. As for the copies made in the act of buffering, the court found that a one second buffer did not meet an undefined "duration requirement," and it said that the temporary copies of video created in this way did not infringe on copyright.

The content owners who sued Cablevision have since filed with the Supreme Court, hoping the justices will take mercy on their plight and hear the case. Yesterday, the Copyright Alliance joined the battle with its first amicus brief (PDF), arguing that Cablevision's system was really just a technical hack around copyright law.

"The model of designing an elaborate technological system for unauthorized copying in a way that requires the customer to 'push the button' is easily adaptable to other contexts," says the filing, "and will proliferate if this case is not reviewed."

The group insists that it supports the RS-DVR idea, saying that "the only reason that the parties are now before this Court is that Cablevision refused to pay for the right to implement this new delivery method, even though it involves reproducing and publicly performing copyrighted material."

The bogeyman in the case is "technologists," who are seen as hackers who will do whatever it takes to develop clever ways to avoid paying content owners. If the appeals court ruling is allowed to stand, it will "encourage technologists to focus their efforts on designing methods of delivering creative material to their customers without paying for the privilege."

In the original Supreme Court appeal (PDF), the media companies opposing Cablevision suggested that the Court should answer three fundamental questions about the technology:

1. Whether the appeals court ruling "fundamentally destabilizes copyright law and inverts the proper relationship between direct and secondary copyright infringement"
2. Whether the two arguments accepted by the appeals court, that buffer copies are not infringing and that it is really customers (rather than Cablevision) who are doing the recording, are correct
3. Whether the appeals court was right to conclude that Cablevision was not conducting "public performances" because each performance was recorded separately and then sent separately to the person who requested it

The questions in the case are fascinating, especially the hugely contentious issue of "buffer copies." The issue of temporary copies has cropped up in numerous technology-related contexts, largely because computers tend to make such copies all the time while caching or processing information. Google and other search engines, for example, have repeatedly been targeted over cached copies of websites and images that they create while trawling the web.

Some guidance from the Court on buffer copies would affect a whole range of tech industries, though it's not clear that the justices will actually take the case. And, as the Copyright Alliance argues, the Court may not even be the best venue for handling such issues. Congress, it says, is generally better placed to hash out such copyright issues, a conclusion that the Supreme Court itself came to in 2003.

And even within the ranks of the Copyright Alliance, unanimity is lacking. The National Association of Broadcasters and AT&T (itself a broadcaster with its U-verse IPTV service) believe that the Cablevision case has already been correctly settled, and they do not support the group's brief.

Also on Ars Technica:

• Diebold Faces Infringement Lawsuit Over Voting Machines
• Former IT Manager Jailed
• Wikipedia to Adopt Creative Commons License

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Laura Rich is a co-founder of Recessionwire, which provides news, advice, perspective and humor about the recession and the recovery.