Slashdot Mirror
Can Cable Companies Store Shows For Us?
NewYorkCountryLawyer writes "Last August I reported that the US Court of Appeals for the 2nd Circuit had defeated the MPAA's attempt to label as copyright infringement a cable operator's storing video for later reuse at the request of its subscribers, in Cartoon Networks v. CSC Holdings. The MPAA has petitioned the US Supreme Court to review that holding. According to a recent interview with Gigi Sohn of Public Knowledge, the High Court has not yet decided whether to grant the MPAA's petition seeking review. What I found odd about the 2nd Circuit decision (PDF) is that (a) although 'fair use' was the most logical defense to be employed in view of the Supreme Court's holding in SONY Betamax, upholding a VCR's 'time shifting' of a broadcast television show as a 'fair use,' the defendant in Cartoon Networks has stipulated to waive 'fair use,' and (b) although the easier legal theory for plaintiff to prove would have been secondary, rather than primary, copyright infringement (i.e. Cablevision's encouraging and inducing its customers to make unauthorized copies), the MPAA has stipulated to waive that line of attack. I.e. neither plaintiffs nor defendants seized the 'low hanging fruit.' In her interview, Ms. Sohn discusses the fair use defense, but I'm not sure why she does, since as I recall the defendant has waived it."
Previous decisions have ruled in favor of personal time shifting.
Cable companies are licensed distributors over their networks, this includes on demand.
I don't get how their "case" even got this far.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
They know they can win with the "fair use" defense, but they're going for an even stronger ruling. If that fails, they will appeal on fair use grounds. That's my guess, anyway.
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
Bad enough my cable company can figure out what I watch: I don't want them storing my stuff for me. Even if it's legal to do so, it is not wanted, and I am sure the cable company will figure out how to make mincemeat of privacy once I allow them to store my TV shows and movies. The more you allow others to do for you, the more you let others control you.
We had a symposium on this issue, and a lawyer talked from the plaintiff's side. Much of their theory dealt with the length of the cable, based purely on a statutory reading. While I understand he has a duty to attempt to apply the statute in his client's best interests, his construction made little sense. Still, he had to rely on that construction to get around Sony. Essentially, it is legal for me to time shift in my house. So why can't I put my time shift device outside of my house, say in a warehouse with a lot of other time shift devices? And what if I make those time shift devices virtual devices on a single server? His point was that moving the device outside of my house was the difference-it became a transmission. He could not provide a length of cable that would trigger that definition, though. And, of course, he was speaking for his client at the time. I will be curious to see how this case works out if SCOTUS does take it. The statutes need some re-writing, honestly.
http://bgcommonsense.blogspot.com
If I'm either party, and I want the Supreme Court to decide an issue for me that I think I'll win, I'm going to work with the other side to waive the legal doctrines which best protect me. I don't want them to say "fair use" or "secondary infringement." Perhaps Cablevision wants to set up a decision granting more protection to content providers, just as the MPAA wants to set up a decision expanding the definition of primary infringement to include what Cablevision did. With the Supremes taking so few cases, it makes sense to give them an extremely narrow legal issue, on a platter, freed, as much as possible, of its factual trappings.
1. I'm not sure I understand your theory as to why both sides waived their best arguments. But I sure would love to have been a fly on the wall when those decisions were made.
2. The issues were narrowed by stipulation earlier in the case, before it got to the Second Circuit. The Second Circuit had to take the case; it was an appeal as of right. So this narrowing had nothing to do with getting Supreme Court review.
Ray Beckerman +5 Insightful
The MPAA has every intention of limiting your access so it can sell you it bit by bit. They want to sell you a different copy for each medium you use it in.
If this is true, then why are almost all new movies coming out with free MPEG4 copies now?
Sorry, I have grave concerns about the MPAA but your knee-jerk cynicism is unwarranted. DRM is already out of the equation WRT online music. I don't know if it will disappear from movies, but including a free MPEG4 with new movies is a step in the right direction.
(-1, Raw and Uncut is the only way to read)
I thought the US supreme court only heard cases that were real.
If both sides in this case waived reasonable arguments, then it sounds to me like a show trial designed specifically to get a ruling.
Why is it OK for cable companies to "store video for later use by subscribers"... but MP3.com was shut down for doing the exact same thing?
I guess MP3.com needed better lobbyists.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
I think that they probably waived fair use because they, themselves don't want to strengthen fair use case laws.
Perhaps they have some content themselves that they don't want other people sharing [full, entire] version of their stuff through time shifting mechanisms.
I mean, if it's fair use that a cable network can time shift stuff for you then logically other companies and individuals can also get into that game.
And let me tell you, my friends, that way least to anarchy! Or at least a lot less profit for both cable operators as well as content holding companies.
Everybody agrees that I can have a DVR in my house. Is it okay if I move it to my garage?
Is it okay if I buy a plot of land and get satellite and put my DVR there, and relay to my house over the Internet?
Is it okay if I let a friend put his dish and his DVR on my plot of land?
What if I charge some strangers to put their dishes and DVR on my land?
What if I have 200 people, but I rent DVRs to them?
What if I replace the hard drives in individual DVRs with a huge RAID array?
What if I virtualize the DVRs?
What if I sell the satellite connection to begin with?
At what point is it no longer legal?
Go green: turn off your refrigerator.
I think there was at least one case on this involving hotels. Back in the early VHS era, many hotels provided VHS players for guests, and lent out tapes at the front desk. No problem there, at least in the US; that's just the "first sale" doctrine.
Better hotels would deliver tapes via room service. This was labor-intensive. Some hotel then realized that it would easier to centralize all the VCRs, and just have someone in an office put the requested tape in the VCR when requested. This was the beginning of "video on demand".
That was held not to be a copyright infringement, even though the hotel was in a sense "distributing" the content.
Now, of course, there are "video on demand" systems for hotels. But they usually have contractual relationships with all their sources; they're not just buying VHS tapes at retail.
After reading NYCL's blogspot article, I got to wondering why smaller recording studios and film production studios have not banned together to file a class action suit against the MPAA/RIAA for antitrust issues, or anti-competitve business practices?
While I cannot cite any specific cases, I would imagine that there are at least a few studios whose business models involve using a GNU-style license to their content (i.e. produce and distribute their content freely and try to make money by encouraging participation at live events), and that the RIAA/MPAA cartel behaviors are destroying the reputations of small businesses that get lumped in with the RIAA/MPAA because of the broadly defined 'industries' these organization pretend to fully represent.
Perhaps my thinking is incorrect on this subject, but it seems similar to a situation where 10 employees at local business, which employees 10,000 people, were to claim that they represented some sort of "employee union." Now if these 10 individuals began making deals with managemnt and filing suits on behalf of employees who never gave them authorization to do so, wouldn't those employees have some sort of recourse by which to prevent these rogue individuals from bringing down the entire company? I am sure there are laws on the books to prevent this scenario from happening, so I can't see why these same laws (or at least the logic behind them) can't also apply to an entire market/industry.
Can anyone explain this to me?
NYCL, as I understand it, the case in question doesn't even involve damages yet; it's basically a declaratory judgment action. So there's no money on the line. It's a pure question of law.
Here's what I'm thinking: Cablevision knows that users can time-shift, under SONY Betamax. So they know that if they sell users a TiVo, it's not secondary infringement.
If Cablevision is looking to provide this on-demand player as a value-added service without paying for it, being able to charge for that feature without having to lease out a bunch of TiVos saves them money; users will presumably pay the same amount regardless of whether there's another box in their entertainment center. So consolidating the service into a central repository is just free money for Cablevision.
The only question left is whether the consolidation itself is infringement. Maybe not, but why take the chance, given how litigious MPAA is?
As for the MPAA, they know they can get secondary infringement in certain situations, but probably not this one, given the end users' right to timeshift. But the MPAA may see this as an opportunity to expand "primary infringement" and secure their position, as digital timeshifting becomes more common, in future negotiations with the midstream providers.
> Everybody agrees that I can have a DVR in my house. Is it okay if I move it to my garage?
[citation needed]
> Is it okay if I buy a plot of land and get satellite and put my DVR there, and relay to my house over the Internet?
MPAA: No, You need special (expensive) licensing.
> Is it okay if I let a friend put his dish and his DVR on my plot of land?
MPAA: No, You need special (expensive) licensing.
> What if I charge some strangers to put their dishes and DVR on my land?
MPAA: No, You need special (expensive) licensing.
> What if I have 200 people, but I rent DVRs to them?
MPAA: No, You need special (expensive) licensing.
> What if I replace the hard drives in individual DVRs with a huge RAID array?
MPAA: No, You need special (expensive) licensing.
> What if I virtualize the DVRs?
MPAA: No, You need special (expensive) licensing.
> What if I sell the satellite connection to begin with?
MPAA: No, You need special (expensive) licensing.
> At what point is it no longer legal?
MPAA: Whenever we say.
1984 was not supposed to be an instruction manual.
There was a bad case, the MAI Systems case -- which most lawyers knew was wrong legally, and most programmers and other tech people knew was very very wrong in the real world -- which held that even a copy which existed nowhere except in RAM was a "copy" within the meaning of the Copyright Act. In MAI
defendant Peak Computer, Inc., performed maintenance and repairs on computers made and sold by MAI Systems. In order to service a customer's computer, a Peak employee had to operate the computer and run the computer's copyrighted operating system software. See MAI Sys., 991 F.2d at 513. The issue in MAI Systems was whether, by loading the software into the computer's RAM,1 the repairman created a "copy" as defined in 101. See id. at 517. The resolution of this issue turned on whether the software's embodiment in the computer's RAM was "fixed," within the meaning of the same section.
The Ninth Circuit concluded, in my view unfairly, that
by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer, MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration"
and that the RAM version was therefore a "copy" even though it existed nowhere in a fixed format.
The Cartoon Networks case, as I read it, greatly limits the damaging effect of the MAI case. Do you disagree?
Ray Beckerman +5 Insightful