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.

There are three main themes that run through the DOJ’s brief (this is my framing of the analysis, which doesn’t exactly match the structure of the brief itself):

First, the administration notes that the case lacks the classic elements to merit Supreme Court review. No other circuit court has ruled on the matter so there is not “split of the circuits” for the high court to resolve. Moreover, according to DOJ, the Second Circuit opinion does not conflict with any apposite holding of the Supreme Court, despite the petitioners’ efforts to construe it as such. So there is nothing for the high court to clarify.

Second, the parties’ stipulations early in the case–the networks agreed to charge Cablevision only with direct copyright infringement rather than contributory or vicarious infringement while Cablevision agreed not to raise a fair-use defense–took critical issues off the table. Worse, they resulted in placing greater dispositive value on the remaining issues than is appropriate. Thus, the Cablevision case is “an unsuitable vehicle for examining the issues raise by network-based recording and playback systems.”

It’s the third theme that would worry me if I were a technology promoter (and perhaps stave off despair as a rights owner). According to the administration, while the Second Circuit’s opinion is sufficiently narrowly tailored to the facts of the Cablevision case to let stand, RS-DVR systems are part of a “broader transition from analog to digital recording and playback, and from business models where consumers purchase a tangible item to those where they pay for a service,” which is likely to raise serious questions of liability for copyright infringement going forward.

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 Second Circuit is the first appellate court to consider the copyright implications of network-based analogues to VCRs and set-top DVRs, and its decision does not conflict with any decision of this Court or another court of appeals. The parties’ stipulations, moreover, have removed two critical issues—contributory infringement and fair use—from this case. That artificial truncation of the possible grounds for decision would make this case an unsuitable vehicle for clarifying the proper application of copyright principles to technologies like the one at issue here.

In other words, it’s not a slam-dunk that any network-based storage and retrieval system would be free from liability for infringement, particularly if the analysis included various kinds of secondary liability, which were off the table in Cablevision thanks to the parties’ early stipulations.

The DOJ brief also suggests the administration is not completely sold on the Second Circuit’s analysis of private versus public “transmissions” as presented in the Cablevision case.

The analogy between respondents’ RS-DVR service and a set-top DVR is weakest with respect to the public-performance issue because the operation of the former, unlike the latter, would clearly involve a  transmission.” … Thus, even if the subscriber would “make” the copies used in the RS-DVR system, respondents might still violate the Copyright Act if they “transmitted” those copies “to the public.” Some language in the court of appeals’ opinion could be read to suggest that a performance is not made available “to the public” unless more than one person is capable of receiving a particular transmission… Such a construction could threaten to undermine copyright protection in circumstances far beyond those presented here, including with respect to VOD services or situations in which a party streams copyrighted material on an individualized basis over the Internet.


Though Media Wonk is not a lawyer, and therefore my opinion on the legal merits of the DOJ’s analysis is worth no more than what you paid for it, overall I found it a very thoughtful brief, in that it juxtaposed its legal analysis with a thorough understanding of current technology and market trends.

The Second Circuit’s decision, however, is unlikely to be the last appellate ruling to address these issues. Other cable providers may initiate services that are similar to respondents’ RS-DVR. Analogous issues also may arise with respect to other network-based services for copying and playing back copyrighted works.

In a footnote it added:


One example may be music lockering services, which permit users to upload files to a remote computer server and stream that music to a personal device over the Internet. The general development of cloud computing, which is an umbrella term for services where programs or files are stored remotely and accessed via the Internet or other means, may generate similar issues.


To me, that suggests the administration has a pretty sophisticated grasp of the tension between beneficial technological innovation and intellectual property rights, particularly copyright, and is unlikely to be blindly swayed by either side in the debate.

That’s a good thing.