Amicus Brief Filed in Cablevision DVR Case

A trio of amicus (a.k.a. “friend of the court”) briefs have been filed in Cablevision’s appeal of a March decision in a case brought by Twentieth Century Fox in New York’s Southern District Federal Court against the company’s remote-storage digital video on demand technology.

The time-shifting precedent set by the U.S. Supreme Court in the 23-year-old Betamax decision means that personal digital video recorders (DVRs) have operated under legal auspices. But instead of programs being saved on a device at the viewer’s end such as TiVo’s technology, Cablevision’s solution involved saving programs at its end and then serving them on demand. Judge Denny Chin concluded in his decision that this constitutes a service, and therefore direct infringement of copyright.

“It should not make a difference whether the copies are stored inside their set-top boxes or back at Cablevision headquarters,” argued Electronic Frontier Foundation attorney Fred von Lohmann, citing the existing time-shifting precedent. Columbia University School of Law professor Tim Wu adds in his amicus brief “[The decision] creates a “regulatory asymmetry” – an unjustifiable difference in the legal status of competing solutions for providing DVR services.” A third brief from industry organizations like USTelecom also supports Cablevision’s appeal.

The case seems to hinge on whether or not the copying of programming by Cablevision makes them directly liable for infringement, as the plaintiff argues, or if providing the feature is protected as only secondarily liable for decisions to copy made by their users. In essence, the judge’s decision favored one technological solution for time shifting (client-side storage) over another (server-side).