CE Groups Back Cablevision in Remote DV-R Appeal

A large cluster of consumer electronics and Internet industry trade groups, including the Consumer Electronics Association, the Electronic Frontier Foundation, the US Telecom Association, and the Center for Democracy & Technology filed an amicus brief last Friday, in support of Cablevision's appeal of a ruling last March that stated its plan to deploy off-site, on-demand DV-R systems for its subscribers amounted to copyright infringement.

"If Cablevision were a direct infringer because it houses and maintains the machines that consumers use to make recordings," the amicus brief reads, "then providers of similar services likely would be as well."

Suppose, for instance, a consumer takes a digital photograph of some copyrighted artwork she saw in a New York museum, the brief goes on, and then prints off that photo from a kiosk at a local drug store. By the logic of the US District Court's ruling, it continues, the drug store could be held liable for contributory infringement.

The case against Cablevision was originally brought by a coalition of the nation's major movie studios and TV networks, along with the RIAA. Their argument is very much the same as the case against Internet radio streamers: Digital recordings of movies or shows, by virtue of their quality, constitute virtual public performances. As such, any unlicensed recording or playback of those performances qualify as copyright infringement, the District Court upheld.

The Supreme Court already grants individuals the right to record and play back their own shows without charging or being charged fees - which is why we've been able to use VCRs for the last few decades. But that grant extends to the individuals' own equipment. Until now, the law has been vague about individuals' rights to lease off-premise equipment to do the same thing.

The studios' and networks' case was that retransmission rights are exclusive elements that are protected by US copyright, and which they have the right to sell and profit from. Already, a cable company cannot record a show from the network and rebroadcast it at the time of its choosing to its plurality of subscribers, without permission or license to do so. The plaintiffs' argument - which won the day - was that rebroadcasting to one customer was no different than rebroadcasting to a plurality.

The trade groups' amicus brief attempts to disassemble that argument: "The district court's conclusion that a public performance takes place whenever multiple individuals record the same television program...confuses Cablevision's offering of a remote capability for personal recording with a different service (such as video-on-demand) that offers programming." It then cites a 1989 case where another court ruled against Columbia Pictures, stating that a hotel renting out DVDs to its guests did not constitute an unlicensed public performance, but rather a "facilitation of the in-room performance."

"Where multiple customers view their own personal copies of a copyrighted work in their own homes," the amicus brief reads, "that is at most parallel private viewing, not public performance."

Holding drug stores, hotels, funeral homes (not a joke), and every agent of retransmission of a performance stream along the way to the consumer - borrowing language from an earlier case won by the National Football League - would imperil the entire digital communications industry, the amicus brief argues, possibly including the plaintiffs as well.

"Many remote technologies would become more expensive due to additional license fees paid to copyright holders," it reads, "and others would be shut down because the large number of copyright holders with potential claims might make licensing a practical impossibility. Consumers would lose access to network services that may be less costly and more capable, reliable, and secure than stand-alone devices. The prospect of liability for direct infringement, based solely on participation in providing the means by which end users engage in permissible copying, would prevent advances in technology and product quality."