Adobe un-Flexes Flash, a surprise DoJ move on copyright, and scary ex-employees

Hollywood takes surprise loss in copyright case

The US Dept. of Justice recommended to the Supreme Court that it not review a 2nd Circuit ruling that a "network DVR" service wasn't a violation of Hollywood's copyrights. The brief, written by US Solicitor General Elena Kagan, is a distinct departure from the previous administration's anything-for-the-MPAA attitude and a heck of a shock to those among us convinced that Smilin' Joe was a tool of the copyright cartels.

Cartoon Networks v CSC Holdings was the case. In it, the defendant was accused of violating copyrights with its "network DVR" time-shifting service. Kagan stated that in her understanding -- and based on the brief, she has a decent grasp of the tech, a quality all too rare in these situations -- the service is not appreciably different from a home-based VCR or DVR, since the consumer is in control of what's recorded. (The plaintiff was claiming that because the recording passed through a buffer, it was "a copy" -- even though the time spent in RAM was on average less than two seconds.)

Don't get too excited: Kagan points out in the brief that this is not a case upon which broad rulings are built, especially since both sides had agreed to leave things like contributory liability and fair use out of the conversation. And Ben Sheffner, certainly one of the net's more astute bloggers on such matters from his perch at Copyrights and Campaigns, correctly describes the brief as "a somewhat tepid endorsement of the Second Circuit's opinion." But to have the DoJ painstakingly take apart a Hollywood request for a certiorari, especially after the early days of the current administration saw so many RIAA- and MPAA-retained lawyers nominated to DoJ positions, does (as Slashdot points out) rather undercut the prevailing cynicism on such matters.

Ray Beckerman, who has a PDF of the brief for your reading enjoyment, says on his blog that "the filing of this brief shows that there is more than one voice being heard. Which is good."

And going forward, since this is the "What's Next" portion of the morning roundup? First, though the Supremes don't have to listen to any steenking amicus curiae, they often do. (Note, by the way, that this is a Second Circuit decision under discussion. The Second's the home of Court nominee Sonia Sotomayor; moreover, NYT v Tasini, one of the highest-profile cases she ruled on, is one of the precedents cited in the brief. Could be interesting if the Court does choose to take it up.)

If the Court doesn't take it up, the ruling in favor of the defendant stands, which (though the decision is, as noted, quite narrow) could mean good things for time-shifting tech going forward. It's not apt to be of assistance to, say, the litigants in the current Realnetworks case, but it's certainly a sign that the current administration is looking at technology's nuances with a fresh eye.

And finally this morning, a moment to look back, if you will. Miss Elizabeth Gladys "Millvina" Dean, the last survivor of the Titanic, has died at the age of 97. To mark the occasion, I recommend to tech folk (and especially risk-management folk) Roy Brander's wonderful 1995 essay on engineering, budgets, and risk management as it applied to that event, which with Miss Dean's passing really is part of history now. (If you've been reading my stuff for a few years, this is the essay I usually suggest everyone check out on April 14. This year, for the first time in a decade, I forgot. So go now.)