Well 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 »