Cablevision Loses Remote DV-R Fight with Studios

US cable service provider Cablevision Systems was handed a defeat yesterday in its defense against a lawsuit by three broadcast TV networks, two cable TV networks, and four TV production studios. Cablevision had announced its intention in March 2006 to roll out a kind of off-site DV-R service to subscribers, allowing them to record up to 45 hours of programming for a limited time onto storage devices that are housed at the Cablevision headend instead of households.

Cablevision had planned for a test deployment of what it called Remote Storage Digital Video Recorder (RS-DVR) service to two million charter subscribers on Long Island, New York last spring. But in May, the lawsuit brought by 20th Century-Fox, Paramount, Disney, and Universal; by CBS, ABC, and NBC; and by Cartoon Network and CNN, put that rollout on hold.

The studios' and networks' contention was that Cablevision's offsite DV-R was actually an unauthorized video-on-demand service which, without the direct intervention of the studios, constituted a violation of copyright.

The Motion Picture Association of America backed the studios' efforts. "Unlike with a set-top box," an MPAA spokesperson told USA Today at the time, "Cablevision will copy copyrighted content and retransmit it without authorization. Cablevision's refusal to seek a license has left the plaintiffs no option but to sue." The same spokesperson argued to Reuters that Cablevision "can't establish a for-profit, on-demand service without authorization from copyright owners whose content is used on that service."

US District Court Judge Denny Chin evidently agreed. As cited by Multichannel News this morning, Chin wrote yesterday, "I conclude that Cablevision, and not just its customers, would be engaging in unauthorized reproductions and transmissions of plaintiffs' copyrighted programs under the RS-DVR. Indeed, the RS-DVR is not a stand-alone machine that sits on top of a television Rather, it is a complex system that involves an ongoing relationship between Cablevision and its customers, payment of monthly fees by the customers to Cablevision, ownership of the equipment remaining with Cablevision, the use of numerous computers and other equipment located in Cablevision's private facilities and the ongoing maintenance of the system by Cablevision personnel."

The crux of the studios' argument concerns what are called retransmission rights. Local broadcasters and cable providers are barred from being able to transmit any taped programming from a network source without permission. Sometimes, blanket permission is granted in advance to local stations, for clips used in news programs. But an affiliate station can't just show and re-show a program on its own schedule, any time it wants.

Of course, Cablevision isn't exactly an affiliate station - in a sense, it's a kind of utility service whose principal CATV spectrum services multiple program feeds simultaneously. But under the law, Cablevision and other CATVs such as Comcast (which had voiced its support for Cablevision) are bound by similar retransmission agreements as for local broadcast stations.

Cablevision fought back nonetheless, countersuing the studios and arguing that it wasn't really retransmitting content as though it were rebroadcasting it to the multitude. Rather, it argued RS-DVR was merely lengthening the distance between the consumer and the DV-R he would have had anyway, in order to reduce the cost of DV-R service to that customer, as well as to ensure full-time management of the service.

"To play back programs recorded with RS-DVR," read Cablevision's June countersuit, "customers will still retrieve from their own dedicated computer memory their own unique copies that they have recorded themselves. And, just as with traditional set-top storage DVRs, programs that customers record using RS-DVR will be accessible and viewable only in the customer's home."

But apparently Judge Chin didn't buy that argument. Yesterday, he dismissed Cablevision's countersuit, and gave the plaintiffs seven days to submit their case for monetary damages. Cablevision is now enjoined from "engaging in public performance of plaintiffs' copyrighted works unless it obtains licenses to do so."

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