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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."
Cable companies tend to be large media conglomerates. Surprisingly, it looks like the *AAs finally picked a target that can afford to defend itself. It'll be interesting to see how they fare when the playing field isn't asymmetric.
It is a miracle that curiosity survives formal education. - Einstein
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.
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
Could it be that the reason both parties have waived their most obvious arguments is that they really want to the court to address the deeper questions and create a landmark ruling? In the long run such a ruling would reduce the amount of litigation surrounding (re)distribution of movies & music.
Could this, in fact, be a cry for help? Could both parties be saying, "Please, your Honor, give us a ruling that makes sense! Let us understand where the limits of copyright law really are!"
Nah. Sounds too logical to be true.
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
When I save something on my DVR, that is for personal use. It is by me for me.
When I get something from the cable company, that is distribution. If that is not distributed in the manner as the owner of the copyright desires, that is a copyright violation on face. Copyright is ABOUT distribution.
There are grey areas, like hold and release, 5 second delay, in-between servers, but this use of a private fair-use technology as a distribution technology, is definitely worth suing over.
It changes the value that the audience aggregator is charging the advertiser. The audience aggregator is unable to charge for another ad, and is unable to control the distribution method. When Adult Swim is on, they want you to watch Adult Swim. GO SHAKE!
Optimist. They want Blu-Ray and all physical media to become obsolete, so they can implement a strong DRM regime where you have to pay for the movie every 10 times you view it, or every 6 months just to keep it around (or both).
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
I wonder what would have happened if someone had filed an Amicus curiae in this case stating either (or both) of the low hanging fruit defenses.
That would be out of the question. If the parties stipulated to waive certain issues, an amicus could not re-inject it.
Ray Beckerman +5 Insightful
I don't know if you were joking or not but...
You could have used a analog capture card instead and encoded it to whatever format you wanted, and even done inverse telecine and deinterlacing to make it look really nice.
I guess with a nickname like yours, you are nostalgic for the 80s.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
By the way, here's an article I wrote for the Journal of Internet Law, which discusses, at page 19, the main issue in the Cartoon Networks case which is "When is a copy transitory?" And here's an editorial comment I wrote for my blog after learning of the Cartoon Networks decision.
Ray Beckerman +5 Insightful
The situation is really pretty simple and depends entirely on contract law.
The cableco's sign one contract to redistribute live TV. They sign another contract (possibly involving another hefty fee) to redistribute video on demand, VOD. The revenue streams are separate starting at the contract and flowing all the way through the business to the customer's bill which has separate line items for HBO and HBO-On-Demand.
Obviously, the cableco's should want to scrap the extra contract and extra cost of the VOD contract and just give us all "virtual DVRs". Or perhaps they could scrap the VOD contract, and continue to charge the customers the same amount of money for their "DVR with infinite rewind", keeping the money that would have gone to the channel for VOD. Or perhaps, since VOD is kind of a pain, the cablecos would get to embrace and extinguish the entire product all at once by changing the numerous VOD relationships into an insourced DVR product which can later be scrapped.
Also its a control issue. The channels want to control their product. Just because the SciFi channel used to broadcast science fiction a long time ago, does not mean they want to now. Now, they want to broadcast ghost hunters, wrestling, and horror flicks. They would not appreciate a cablecos "DVR with infinite rewind" messing up their current oh so carefully designed marketing message that they like the name, but no longer have any interest in scifi content.
Finally its liability. If CBS had the superbowel halftime on some cableco's virtual-infinite-rewind-DVR, who is liable when its played back over and over? CBS because the cableco didn't delete it? The cableco because they're a common carrier? The local franchise because they are easier to sue? If a channel screwed up and transmitted something they didn't pay for, can they force the big corporate virtual DVRs to delete it? Or if they screwed up their perfect record of bland mediocrity and accidentally broadcast something that generated complaints, could they force the big corporate virtual DVRs to delete it to limit complaints?
"Science flies us to the moon. Religion flies us into buildings." - Victor Stenger
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.
WRONG. The "Broadcast Flag" was never instituted - it is a purely optional (and almost universally ignored by non-cable-company-hardware) standard. Furthermore it was digital only - so all your NTSC adapters that work with cable continue to work fine. Second no ATSC/QAM tuner i've ever seen even offered support for this hardly-implemented non-mandated anti-fair-use idea.
My mythBox is about the size of two VCRs, has 1 TB of storage, is attached to my 100base ethernet, I can manage my recordings over the web. I can use Hulu on it. I could (and might) install Boxee (i'd prefer to use mythVodka if they ever get that plugin working well). And has numerous other abilities that your two VCRs just cannot do.... MAME anyone?
If you cannot keep politics out of your moderation remove yourself from the Mod Lottery.. NOW!
Apparently the "On Demand" part of cable services isn't protected at this point in time. That actually makes sense, as it's a "new" service being offered by the cable cos that bypasses the whole idea of prime-time scheduling.
I don't blame them for skipping the time shifting argument. Prior cases against web companies haven't succeeded in using that argument to justify their provisioning of torrent caps of TV shows for members to view.
I believe the *AA wants to ensure they get another licensing slice for allowing VOD. I doubt they're actually foolish enough to want to make the practice illegal, so they're not using the "big guns" that might force the cable cos to drop the service.
Personally I still think direct subscription to shows over the internet is the way the future will go. Rather than subscribing to a "channel", you'll subscribe to the particular show you want. Channels will only exist in the future if they provide a heavily discounted bundle of shows to be watched on demand.
Let's face it -- with PVRs, VOD, and torrents, we're already half way there. They just need to figure out how to monetize it, and standardize the streaming services so they can be built into TVs.
I do not fail; I succeed at finding out what does not work.
I'm surprised that there isn't more interest in the main issue in the case, the question of what is a "transitory" copy.... especially among you software developers out there!
Ray Beckerman +5 Insightful