Networks fight Cablevision service
Hollywood hasn't had much luck fighting video cassette recorders and digital video recorders (DVRs), but that didn't deter several networks and studios last week from asking a court to block a recording system that could quickly increase the number of cable subscribers able to watch TV on their own schedules - and zip past the ads.
In a case that could reshape copyright law, Fox, NBC Universal, Paramount Pictures, CBS and Disney asked a U.S. district court here to stop Cablevision Systems from rolling out a service that lets an ordinary digital set-top box function as a DVR, like
TiVo. There are 45 million such digital boxes in use.
Cablevision calls the technology a "remote storage DVR" (or RS-DVR). It would let people schedule shows to record, watch when they want, fast forward and rewind at will and delete shows to make room for more up to a 45-hour limit. The difference from a TiVo or other DVR is that the programs would be stored not on a hard drive in the home but on a server at Cablevision, which would feed each customer's recorded shows back when wanted via its cable lines and the regular digital box.
The studios argue that means Cablevision is selling not a DVR, but a video on demand service, without paying the studios a license fee as they do for VOD. "Unlike with a set-top box, Cablevision will copy copyrighted content and retransmit it without authorization," says Kori Bernards of the industry's Motion Picture Association of America. "Cablevision's refusal to seek a license has left the plaintiffs no option but to sue."
They say the law draws a line between consumers using a device and businesses providing a service.
For example, students can photocopy for their use parts of copyrighted books and articles, but a court said Kinko's can't take orders from professors to make and sell collections called "course packs." Another court said hotels can lend or rent DVDs to guests, but they cross a line when they create a business that electronically transmits movies to rooms.
Studios have "an easier case" than that against VCRs and DVRs, says intellectual property lawyer Bruce Sunstein of Bromberg & Sunstein, because the RS-DVR "is a service sold to the consumer, while TiVo is a device sold to the consumer."
But Cablevision says it doesn't matter whether programs are stored 3 feet or 3 miles from the TV. It says consumers record shows - and miss them if they forget to - unlike VOD, where operators offer a menu of programming.
"It's not like a DVR," says spokesman Jim Maiella. "It is a DVR."
Cablevision cites precedents favoring service providers: In a case involving the Religious Technology Center and Internet service provider Netcom, a court said the ISP was not liable when a subscriber infringed on the Scientology center's copyright. In another case, a court said Google could automatically copy and store website contents for search purposes without permission from the copyright owner.
Cablevision says it will push ahead with its RS-DVR, but one outsider sees a protracted battle. "This will end up in the Supreme Court," says Forrester Research's Josh Bernoff, "and, like the Grokster case (over peer-to-peer file sharing), it could take three to five years to get there."
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