Public Interest Groups, Lawyers Attack Remote PVR Ruling
The 2nd U.S. Appeals Court, N.Y.C., should overturn a district court decision to block Cablevision’s remote PVR service, a broad consortium of technology and communications industry groups, including CEA, USTelecom, CTIA, Electronic Frontier Foundation, Public Knowledge and the Center for Democracy & Technology, said in an amicus brief filed Fri. with the court. The support for Cablevision is notable, since the cable industry often is at loggerheads with some of its new allies. “Imagine that -- CEA going to bat for a cable company,” CEA Pres. Gary Shapiro said by e-mail. Separately, copyright law professors asked the appellate court to overturn U.S. Dist. Court, N.Y., Judge Denny Chin’s ruling that if it provided such a service Cablevision would directly infringe cable programmers’ copyrights (CD March 26 p8). The case will be heard in early Aug.
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Beyond its technical flaws, Chin’s decision undermines important copyright policies in ways that could threaten all network-based services, the industry group said in its brief. Under Chin’s reasoning, “A tourist photographing copyrighted artwork in New York and remotely printing the photograph in a Des Moines drugstore’s self-service machine would place the drugstore at peril of liability for direct infringement,” the group said as an example: “Even though the tourist’s use of the photograph is almost certainly a fair use, the drugstore’s provision of the means of copying would be subject to a separate, fact-intensive fair use analysis.” Letting the ruling stand would make innovation in remote technology more expensive and less attractive to entrepreneurs, it said.
Even more troubling is the district court’s treatment of content buffers as envisioned in the Cablevision system, the copyright law professors said. Chin said materials held in transient data buffers, used by all digital devices -- from MP3 players to DTV sets -- are equivalent to a “copy” under the Copyright Act. “Under the District Court’s ruling, each and every lawful use of a digital device of any kind -- turning on a digital TV, or browsing a website on the Internet -- becomes an act fraught with potential copyright liability,” the lawyers said.
In that regard, the ruling completely reverses the Copyright Act’s language and legislative history, the law professors said: “The text and legislative history of the Copyright Act demonstrate that the transient ‘buffer’ copies of the sort at issue in this case are precisely the kind of fleeting, transitory reproductions Congress intended to exclude from the Act’s scope.”
The ruling provides an “end-run around the Supreme Court’s secondary liability jurisprudence,” Columbia Law Prof. Tim Wu wrote in a separate amicus filed with the court. “The district court’s holding would bypass Sony and Grokster and allow a content owner to establish copyright liability based on product design alone,” Wu said. And the court shouldn’t anoint a “winner” in the PVR market, as the District Court has done by giving end-user PVRs a legal edge over remote PVRs, he said: “The network-versus-device question is not unlike the question of whether front-wheel or rear-wheel drive is a better design for cars,” he said: “It would seem absurd for a federal court to grant a regulatory advantage to front-wheel drive cars for no good reason, but that district court here has done essentially the same thing.”