Obama to Supreme Court: Let Remote-Storage Decision Stand

by Wendy Davis, Jun 1, 2009, 9:16 AM

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The Obama Administration is backing Cablevision in a copyright dispute with the entertainment industry about digital video recorders. Friday, the U.S. Solicitor General filed papers urging the Supreme Court to decline to review an appellate court decision approving Cablevision's proposed remote-storage DVRs.

"Network-based technologies for copying and replaying television programming raise potentially significant questions, but this case does not provide a suitable occasion for this court to address them," the administration argued. The Supreme Court still could decide to accept the appeal, but that appears unlikely to happen now.

Industry observers are following the case closely because the outcome could affect a broad swath of Web-based companies, including those offering digital music lockers, mixtapes, and other cloud storage services.

A coalition of film and TV studios had sued Cablevision in 2006, alleging that the company's planned remote device would infringe copyright because Cablevision would itself make and store copies of shows. With older products like VCRs -- which were okayed by the Supreme Court 25 years ago -- and more traditional DVRs, the programs physically reside in consumers' homes.

The Second Circuit Court of Appeals ruled in Cablevision's favor last August. That court held that consumers would be responsible for making the copies, not Cablevision, which only intends to provide the technology.

The studios petitioned the U.S. Supreme Court to review the case. That court asked the Obama Administration to weigh in on whether the case should be heard.

The Justice Department agreed with the appeals court that the service's remote nature doesn't make it unlawful. "From the consumer's perspective, respondents' [remote storage DVR] service would offer essentially the same functionality as a VCR or a set-top DVR," the administration argued in a brief asking the Supreme Court to reject the appeal.

Gigi Sohn, president of digital rights group Public Knowledge, praised the Solicitor General's decision. "Common sense would dictate that a recording is a recording, whether made on a set-top box or in a cable head-end," Sohn said in a statement. "We hope the U.S. Supreme Court follows this advice and removes any legal obstacles from the Cablevision service going forward."

Internet observers were also following the case to see how the new U.S. Solicitor General, former Harvard Law School dean Elena Kagan, would approach legal issues involving technology and entertainment.

But Kagan's stance in this case might not be the best reflection of her views because the litigation has some odd wrinkles. Cablevision and the studios agreed that they would not raise two related issues -- whether the remote service DVRs enable a fair use of material, and if not, whether Cablevision contributed to infringement by consumers. The Solicitor General wrote that the decision to sidestep those questions makes the case "an unsuitable vehicle for clarifying the proper application of copyright principles to technologies."

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