• by Wendy Davis  @wendyndavis, January 15, 2009

The U.S. Supreme Court has asked President-elect Barack Obama's administration to weigh in on a copyright case that could affect a broad swath of online media and technology companies.

The case stems from a dispute between the entertainment industry and Cablevision, which intends to offer a remote DVR. Lawyers say the court's decision in the case could have an impact on companies that offer any type of cloud storage, ranging from companies that offer digital music lockers to Web-based mixtape sites to Google, which allows users to store text-based papers in Google Docs.

"It's a really important case because it goes to the core of how digital bits flow," says Eric Goldman, director of the High Tech Law Institute at Santa Clara University. "It has implications for every Internet company in very profound ways."

Like other DVRs, Cablevision's product allows consumers to time-shift their TV viewing. But unlike more traditional devices, which store the programs in a box in consumers' homes, Cablevision stores the programs on its own hard drives.

In 2006, before Cablevision launched its service, film and TV producers sued on the theory that Cablevision's copying and transmission of the programs would violate their copyright.

The 2nd Circuit of the federal court of appeals ruled in Cablevision's favor last August. That court held that consumers were responsible for making the copies, not Cablevision, which only provided the technology. "Here, by selling access to a system that automatically produces copies on command, Cablevision ... resembles a store proprietor who charges customers to use a photocopier on his premises," the court wrote.

(Consumers generally have the right to time-shift TV shows under the fair use doctrine, but the court didn't address that question in this case.)

Goldman said that many other tech companies that are accused of copyright infringement could potentially benefit from that part of the holding if their products are challenged in court. "They can say, 'I'm just the dumb tech provider. It's the users who are infringing.'"

Michael Kwun, a lawyer with the Electronic Frontier Foundation, added that the case could provide support to companies like MP3Tunes.com, which offers a digital music locker that allows people to access their songs from any Web-enabled computer. MP3Tunes.com is currently defending a copyright infringement lawsuit brought by EMI. "It's relevant to any remote storage system," he said.

Another portion of the ruling dealt with Cablevision's temporary copies. The company stores a copy of programs on its router for no more than 1.2 seconds before sending it to consumers. The entertainment companies had argued that those temporary copies infringed their copyright, but the court rejected that position also, holding that those copies weren't "fixed."

The TV and film producers appealed to the U.S. Supreme Court to take up the case. This week, the justices asked the incoming U.S. Solicitor General to take a position on whether the court should hear the appeal. It's not clear how President-elect Barack Obama's nominee for U.S. Solicitor General, Harvard Law School Dean Elena Kagan, views the issue.