Broadband Rubicon Crossed? Cablevision, CBS Reach OTT Retrans Deal

Cablevision is boasting today of becoming the first cable or satellite provider to offer CBS’s OTT channel, CBS All Access, to its broadband subscribers.

The multiyear deal between the network and the MSO includes retransmission consent for CBS-owned stations and continued carriage by Cablevision of Showtime, CBS Sports Network and the Smithsonian Channel, in addition to CBS All Access.

“This comprehensive new agreement builds on our strong relationship with CBS and ensures that every Optimum customer gets the highly popular CBS content they want across multiple platforms and screens,” Cablevision EVP of programming Tom Montemagno said in a statement. “As the first distributor to agree to provide tony_sopranoCBS new Internet services, Cablevision continues to expand its portfolio of next-generation offerings, connecting customers to the programming they value when and where they want it.”

For those who have paid attention to Cablevision in recent months the CBS deal is no big surprise. The MSO has been drifting away from the traditional pay-TV model since it introduced its “Cord Cutter” package earlier this year that included broadband service and an over-the-air antenna for tuning in broadcast channels. It was also the first operator to offer Hulu to its broadband subscribers and was a launch partner for HBO Now. But the CBS deal represents the first time that Cablevision — or any other MVPD — has licensed an OTT service as part of a broadcast retransmission deal.

I’m not sure other cable ISPs would see that as something to boast about. Read More »

Cablevision case puts kibosh on collection society claims

supreme-courtThe Supreme Court’s denial of cert. in the Cablevision remote-DVR case has launched countless column inches of commentary and analysis already, much of it focused on the problems it poses for the Hollywood studios and TV networks worried about its impact on ad-skipping (see here, here and here). But the studios and networks aren’t the only losers in the case.

By letting the Second Circuit’s opinion stand, at least for now, the court has dealt a serious set back to the designs of the performance rights societies like ASCAP and BMI to bring cloud recording and playback within the scope of public performances subject to performance royalties.

According to the plaintiffs in the Cablevision case, the playback of programs stored in MSO’s head-end servers constituted a performance of the work by Cablevision that was not authorized by its basic distribution agreements with program provided and thus needed to be separately licensed.

The Second Circuit disagreed, however, finding that as a legal matter the customer “performed” the work since the copy used for playback was accessible only to that customer.:

In sum, we find that the transmit clause directs us to identify the potential audience of a given transmission, i.e., the persons “capable of receiving” it, to determine whether that transmission is made “to the public.” Because each RS-DVR playback transmission is made to a single subscriber using a  single unique copy produced by that subscriber, we conclude that such transmissions are not performances “to the public,” and therefore do not infringe any exclusive right of public performance. We base this decision on the application of undisputed facts; thus, Cablevision is entitled to summary judgment on this point.

 In other words, according to the Second Circuit, there is indeed such a thing as a non-infringing private performance of a work transmitted over the Internet. Assuming the reasoning applies to musical works as well, the ruling is going to make it much harder for ASCAP and BMI to compel providers of online music lockers and other types of user-directed cloud storage facilities to take out licenses and pay royalties on transmissions.

(Although not directly on point, it probably doesn’t help ASCAP’s efforts to license mobile-phone ring tones, either). — TMW

DOJ urges court to pass on Cablevision case

supreme-courtWell I feel like an idiot (again). No sooner had The Media Wonk posted his idle speculation that prospective-Justice Sonia Sotomayor might provide a crucial vote for cert. in the Cablevision case than the Department of Justice submitted its long-awaited brief in the case strongly urging the Supreme Court to take a pass. While not the final word on that matter — that still belongs to the cour t– it now seems highly unlikely the court will take the case seeing as it specifically asked for DOJ’s views.

The DOJ’s recommendation is largely being reported as a victory for technology interests and a defeat for the studios (see here, here and here). And as an immediate practical and legal matter, that’s true, in that a denial of cert. by the court would let stand the Second Circuit’s ruling that Cablevision’s remote-storage DVR service does not directly infringe the networks’ copyrights and pave the way for Cablevision (and likely other cable operators) to roll out RS-DVR.

But if I were technology promoter I wouldn’t get too comfortable just yet with the Obama Administration’s views on the proper balance between technological innovation and the protection of intellectual property. At least not based on the Cablevision brief, the lead author of which was solicitor general Elena Kagan. Read More »

IP Justice

supreme-courtThe Wall Street Journal has a story up this morning on Supreme Court nominee Sonia Sotomayor’s record in intellectual property cases and its possible implications for her tenure on the high court should she be confirmed.

As a young lawyer in the mid-1980s, before becoming a federal district judge, Sotomayor handled IP litigation at Pavia & Harcourt, including a semi-famous case in which she represented luxury handbag maker Fendi in a trademark infringement action against makers of knock-offs, which ended with thousands of counterfeit Fendi bags being crushed by a steamroller in the parking lot of Tavern on the Green in Manhattan–a stunt that became known as the Fendi Crush.

As a district court judge, and later on the Second Circuit Court of Appeals, Sotomayor authored opinions in a number of copyright and other IP cases, including having the first crack at Tasini v. New York Times, a seminal case involving the right of newspapers and other publishers to include the work of freelance writers in electronic databases such as LexisNexis without express permission. Sotomayor sided with the Times, but here decision was ultimately overturned by the Supreme Court. Read More »