The Associated Press: High court won't block remote storage DVR systems

The Associated Press: High court won't block remote storage DVR systems 

High court won't block remote storage DVR systems

2 days ago

WASHINGTON (AP) — Hollywood studios and television networks lost their bid Monday for the Supreme Court to block the use of a new digital video recorder system that could make it cheaper and easier for viewers to record shows and watch them when they want, without commercials.

The justices decline to hear arguments on whether Cablevision Systems Corp.'s remote-storage DVR violates copyright laws.

For consumers, the action means that Cablevision and perhaps other cable system operators soon will be able to offer DVR service without need for a box in their homes. The remote storage unit exists on computer servers maintained by a cable provider.

Industry experts say the new technology could put digital recording service in nearly half of all American homes, about twice the current number. That's what has movie studios, TV networks and cable channels worried. DVRs allow viewers easily to skip past commercials.

The studios and networks contend that the service is more akin to video-on-demand, for which they negotiate licensing fees with cable providers.

The Obama administration, which urged the court not to hear the case, said the ruling by the federal appeals court in New York in favor of Cablevision was correct.

The 2nd U.S. Circuit Court of Appeals overturned a judge's ruling that Cablevision, rather than its customers, would be making copies of programs, thereby violating copyright laws.

The Screen Actors Guild, songwriters, music companies, Major League Baseball, the National Football League and the NCAA all sided with the networks and studios in asking for high court review.

The case is Cable News Network v. CSC Holdings Inc., 08-448.

Copyright © 2009 The Associated Press. All rights reserved.

The Associated Press: High court won't block remote storage DVR systems

Media Life Magazine - Supremes open way for remote DVRs

Media Life Magazine - Supremes open way for remote DVRs 

Supremes open way for remote DVRs High court ruling frees Cablevision to offer service

By Louisa Ada Seltzer
Jun 30, 2009

It would seem like a splitting of hairs, but then so much of copyright and trademark law is just that.
Cablevision came up with a system allowing its customers to record TV shows, as they might with a DVR, but store them remotely on a Cablevision server.

TV networks, which are generally opposed to all things DVR, objected and filed a lawsuit, arguing that Cablevision's remote DVR storage system violated their copyright protection of the shows they produce--and in a way that a TiVo device or similar home DVR device does not.
The networks, including CNN, CBS and Fox Networks Group, along with the Motion Picture Association of America, won the first round in federal court but then lost on appeal, when last August the U.S. Court of Appeals for the Second Circuit overturned the lower court's decision.
Yesterday the networks lost again when the U.S. Supreme Court declined to hear the case.
The effect is to enable Cablevision and other cable systems to broaden their offerings to consumers, allowing them to record and store programs without having to buy a home DVR device.
The networks worry that thus enabled, more and more viewers will use the service with the intent of zipping though ads on the recorded shows as they might with a TiVo device. About a third of homes now have some sort of DVR device.
Cablevision halted the rollout of its remote DVR service three years ago but now plans to introduce a version of it this summer, and presumably other cable systems will follow.
The network's beef with the remote system is that in effect it empowers a third party, the cable operator, to become a distributor of content that belongs to the networks. By contrast, the home DVR-recorded show is clearly for personal use and as such is not for distribution.
In any case, as copyright holders, the networks must be diligent in bringing legal challenges whenever they believe their copyright protection is being challenged, lest they open a floodgate of similar incursions.
And it becomes all the more critical as more and more content goes online or is offered on demand.
But they have a practical aim as well. Their long-term intent is to reach terms with cable systems such as Cablevision to restrict the ease with which users are enabled to skip ads.
What effect all this will have on ad-skipping is hard to say.
Numerous studies have been done on DVR usage and ad-skipping, and a number have concluded it occurs far less often than one might expect.
More to the point though, to skip an ad using a DVR device requires watching the ad as it’s speeded through to know when the program resumes. The effect is that the skipped ad gets more attention than if the viewer simply left the room.

Media Life Magazine - Supremes open way for remote DVRs

RealNetworks Files Antitrust Claims Against Hollywood -- Hollywood Studios -- InformationWeek

RealNetworks Files Antitrust Claims Against Hollywood -- Hollywood Studios -- InformationWeek 

RealNetworks Files Antitrust Claims Against Hollywood

The media player software maker's lawsuit reads like a conspiracy plot as it's impossible for any organizations other than the studios to sell DVD-copying software.

By Antone Gonsalves
InformationWeek
May 14, 2009 06:07 PM

 

RealNetworks, which is waging a court battle against several Hollywood studios over its DVD-copying software, has filed antitrust claims against the movie studios, accusing them of trying to prevent other companies from building products that let consumers legally copy DVDs for personal use.

RealNetworks filed the accusations Wednesday in U.S. District Court in San Francisco, where it's battling an attempt by the studios to extend a court order barring the company from selling its DVD-copying RealDVD until after the legality of software is settled. The Motion Picture Association of America has sued RealNetworks accusing it of copyright violations. In addition, the DVD Copy Control Association, which licenses copyright-right protection technology for the MPAA, has joined the suit, accusing RealNetworks of violating its license with RealDVD.

RealNetworks filed its latest allegations in preparation for closing arguments in the current court battle over the temporary restraining order against RealNetworks. Closing arguments are scheduled for May 21.

Within the 36-page court document, RealNetworks claims the studios and the DVD CCA have conspired to make it impossible for any organizations other than the studios to sell DVD-copying software. "Without this illegal cartel, Real and others would be able to compete to provide consumers with products to enable them to gain more value from their DVDs, without having to pay again to make a fair-use copy of the DVDs they have already purchased," a RealNetworks spokesman said in an e-mail.

Under the fair-use segment of the federal Digital Millennium Copyright Act, people can legally copy movies and music for personal use. RealDVD, which costs $30, makes it possible to copy a DVD onto the hard drive of a laptop, but does not strip the copyright-protection technology on the DVD, according to RealNetworks. In addition, RealDVD adds another layer of protection that prevents the movie file from being opened on any device other than the one it was originally copied to.

As part of its latest filing, RealNetworks is asking the court to bar the movie studios and the DVD CCA from anti-competitive activity and for monetary damages that would be determined later.

RealNetworks Files Antitrust Claims Against Hollywood -- Hollywood Studios -- InformationWeek

Q&A: Gigi Sohn Says Give Remote DVR A Chance - 2009-05-09 18:52:00 | Multichannel News

Q&A: Gigi Sohn Says Give Remote DVR A Chance - 2009-05-09 18:52:00 | Multichannel News 

Q&A: Gigi Sohn Says Give Remote DVR A Chance

Public Knowledge President Weighs In On Cablevision's Court Case

Public Knowledge has frequently taken aim at cable operators over network management issues. But the group is squarely in Cablevision's corner when it comes to legal wrangling over the operator's plans to roll out a headend-based digital video recorder service. The U.S. Supreme Court is awaiting advice from the solicitor general on whether or not to hear content creators' - studios and programmers - appeal of an earlier ruling that found Cablevision's plan to provide DVR functionality in centralized servers does not violate copying and performance restrictions in copyright law. The studios say that fundamentally distorts copyright law. Cablevision, meanwhile, has yet to roll out the service. Public Knowledge president Gigi Sohn wants the last decision to stand, enabling Cablevision to roll out the "cool, consumer-friendly technology" and reinforcing fair-use rights established in the Sony Betamax case over video cassette recording. She spoke with Multichannel News senior Washington editor John Eggerton about the issue.

MCN: Could you briefly explain the case?

Gigi Sohn: Cablevision has a remote storage digital video recorder service which is just like a TiVo or any other DVR except there is no hard drive. The copies of the shows are stored on Cablevision servers. But for all intents and purposes it operates like a TiVo. You use your remote controls to pick what programs you want to record, you record those programs and you play them back But you don't have a box with an expensive hard drive.

The studios and some cable networks sued for copyright infringement based on three theories. They said the little, temporary buffer copy that it made before digital transmission violated the right of reproduction. The fact that the copy of the show resided on the server was also a violation of reproduction rights, they argued. And third, they said that when Cablevision provides the recorded show violates the right of public performance.

MCN: So why wouldn't that violate the public performance restrictions. A cable operators has to get a separate right for VOD, doesn't it?

GS: Yes, but the court differentiated between VOD and this because for video on demand, the cable operator makes certain movies available. The consumer isn't the one doing the choosing. In that situation it is the cable operator who chooses what library of shows will be available to the consumer. With the DVR, the only choosing the cable system does is what networks to put on its system. It doesn't choose the programming available for the DVR. You choose that. That is the big differentiation.

MCN: But in the original lower court decision, which went against Cablevision, the judge saw it differently?

GS: Yes, he basically looked under the hood of these technologies and said they were more like video on demand and less like the TiVo. It is really Cablevision that is making the copy. But the Second Circuit [U.S. Court of Appeals] reversed on all grounds, finding that the buffer copy is temporary and that in order to violate the copyright it had to be more than transitory duration. The Second Circuit determined that the customer is doing the copying and, on public performance, that Cablevision was only providing the show to one person. The studios had said you had to look at the potential audience for the work. So if it went to more than one person, it was a public performance.

MCN: Where does the case stand now?

GS: The studios sought Supreme Court review, but we don't think this is a case that is worthy of the Supreme Court taking for a variety of reasons. Number one, there is no conflict in the circuit. It is also a very narrow decision. It is only about one cable remote DVR technology. Conversely, if the case were reversed there could be some serious damage done to technology.

The Second Circuit crafted a narrow decision and left a lot of doors open. For instance, they left the door open if companies wanted to assert contributory liability, saying that maybe Cablevision was inducing infringement. I don't think they would win, but the point is they didn't decide that. They frankly took pains, maybe in a way I might not have done if I was one of the judges, to make this as narrowly construed as possible.

MCN: What serious damage would result if the Supreme Court reversed the appeal decision and found for the studios?

GS:Every time you make a digital copy of anything, an audio stream, a video stream, you have to make a buffer copy first. Can you imagine what that would do to the cost of digital transmission or to the consumer if you had to pay a licensing fee? Think about cloud computing. If all remote storage is a copy and the host is liable, cloud computing is dead.

MCN: So how did the Solicitor General become involved?

GS: The court asked the Solicitor General to give his opinion about the case. She is planning on filing at the end of this month with an opinion on whether this case should be taken or not.

MCN: So what has been going on for the past few months is both sides have been trying to convince the Solicitor General by enlisting various and sundry agencies to weigh in on their behalf. Lobbying is the wrong word, but there has been a lot of advocacy in the relevant agencies. Who is on the side of Cablevision and Public Knowledge?

GS: Let's not put it that way. I'll tell you who is on the side so far of the Solicitor General telling the court not to take the case. The White House and the FCC.

On the other side so far [are] the Patent and Trademark Office and the Copyright Office. The civil division of the Justice Department has not weighed in yet. I don't know whether one agency has more weight than another. Both the parties, Cablevision and the studios/cable networks, if they haven't already met with the Solicitor General or assistant Solicitor general, will be doing so.

MCN: You have historically been concerned about concentration of control with cable operators. Is there no concern about Cablevision controlling content on its centralized servers?

GS: I'm more concerned about the concentration of control of copyrights and that a handful of powerful copyright holders are trying to sue a cool, consumer-friendly technology out of existence. If I want to try to convince the antitrust department of the Justice Department is that the competition concern is more than copyright.

MCN: But if it is easier or cheaper for Cablevision to provide this service, aren't they getting an extra, commercial, benefit from using copyrighted material in this way? The studios argue the technology is "fundamentally distorting" copyright laws?

GS: I would say it is the exact opposite. The Sony case is now 25 years old. And the Sony case says it is fair use to record a program for later viewing. Tell me how this is any different from a VCR.

MCN: Cablevision doesn't get a benefit if I buy a VCR and record, but if they provide me a service that is faster and cheaper, that is a value added for me?

GS: You have to look at my rights as a viewer. It doesn't matter whether Cablevision is getting some money out of it. The argument that the studios made in the Sony case is that Sony is making money off of my copyright. Here, instead of the hardware company making money you have the software company making money. It is my right to record that is really being affected here.

MCN: Cablevision won't pin the delay in its rollout of the service on this case. What do you think?

GS: Of course it is about this case. If, God forbid, this case is reversed, they are liable for what could be millions if not billions of dollars. Every single work under the copyright law you can be liable for damages of up to $150,000 in infringement. If they willingly continued to run this service and were found to be in violation of copyright laws it would bankrupt Cablevision. It would probably bankrupt Time Warner and Comcast. You would be insane to take that risk.

Copyright is a strict liability law. There is no such thing as a person who thought they were acting legally. If you violate copyright laws, it doesn't matter what your intentions were, you will be punished with very large damages.

Q&A: Gigi Sohn Says Give Remote DVR A Chance - 2009-05-09 18:52:00 | Multichannel News

Documentarians, DVDs and the MPAA | Technology | Los Angeles Times

 

Documentarians, DVDs and the MPAA

You would think that the movie industry, which celebrates documentarians every year at its awards ceremonies, would want to help those same filmmakers overcome the hurdles posed by changing technology. But Hollywood's copyright holders don't see things quite that way. In fact, they're trying to make it harder for documentarians to practice their craft, opposing the latter's bid for the freedom to extract short clips directly from DVDs.

As instructed by Congress in the 1998 Digital Millennium Copyright Act, the Copyright Office considers requests every three years to create or renew exemptions to the DMCA's ban on circumventing the electronic locks on copyrighted material. Such "technical protection measures" include the encryption on DVDs. In one of the rare exemptions granted by the Copyright Office, film professors have been permitted to copy short clips from DVDs for the purpose of creating video compilations for their classes. Of course, the DMCA makes it illegal for anyone to make or sell a tool that professors could use to extract these clips from discs; luckily for them, it's easy to find (illegal) software online that can do the trick.

Anyway, the Copyright Office held hearings last week on the latest requests for exemptions, including one from a group of documentary filmmakers. Led by Kartemquin Educational Films (the producers of "Hoop Dreams") and joined by well-known filmmakers such as Kirby Dick ("This Film Is Not Yet Rated") and Morgan Spurlock ("Super Size Me"), the group seeks permission to copy short segments from DVDsfor their work. The group (whose papers were prepared by a team from USC's Intellectual Property and Technology Law Clinic and Beverly Hills attorney Michael C. Donaldson) notes that VHS production has all but ceased, meaning that DVD is the de facto medium for video. And without the ability to make fair use of material on DVDs, the group contends, documentaries that cast their subjects in a negative or mocking light may not be possible....

It points to such works as "This Film Is Not Yet Rated," "Smoke and Mirrors: A History of Denial" and "Bigger Stronger Faster" as examples of filmmakers relying on the fair use doctrine for the clips they needed instead of obtaining the copyright holders' consent. According to comments filed by the group:

Each of these films plays an important role in society through its critique, commentary or exposé of some aspect of our culture, but without fair use, none of them could even have been made. Documentary film has faced this reality since the form was developed, and it is why documentary film is an exemplar of the type of activity for which the fair use doctrine was developed.

The MPAA opposed the request, along with a broader one by the Electronic Frontier Foundation that sought permission to take short clips from DVDs for any noncommercial, non-infringing video. "These proposals fail to establish that content desired for non-infringing uses is not available from sources other than DVDs, or that the desired non-infringing uses cannot be made by means that do not require circumvention of technical measures, such as screen shots," the association argued in its comments. But the problem with copying clips from other sources, the documentarians responded, is that it introduces image and sound problems that render the video unacceptable to broadcasters, cable networks and other outlets for their work.

The reaction by the MPAA and other copyright holders to the documentarians' appeal typified their response to all the requests for exemptions, which ranged from the narrow and common-sensical (such as allowing circumvention by people who had purchased software, music or movies protected by DRM systems that were later abandoned by the retailer), to the broad and, well, quixotic (such as allowing phone resellers to circumvent the locks on mobile phones).

Any new or expanded request drew a uniform "no" from the copyright holders, who contended that expanding the (extremely limited) exemptions would weaken the anti-circumvention regime, "confuse consumers" and "spawn an undergound marketplace for circumvention services" (as if that didn't already exist). The trump card in the copyright holders' arsenal: if the anti-circumvention provisions grow weak, content providers will lose faith in their ability to protect content and make it less available. Of course, the copy protection on DVDs was cracked not long after the discs were introduced, yet the studios continued to sell them and sales exploded anyway.

In the documentarians' case, Hollywood's Katy-bar-the-door approach doesn't just strain credulity; it's more than a little anti-competitive. The copyright holders argue that "the most salient alternative method" for documentary filmmakers is to "obtain footage directly from the copyright owners." That's another way of saying, "Let us retain control of the clips." The fair use doctrine, though, holds that copyright holders don't control all uses of the material they create. It's one of the ways that the courts and Congress have tried to balance the Constitution's protection for "authors and inventors" with the First Amendment rights. The copyright owners correctly observed that fair use is a fuzzy notion, with the courts as the ultimate arbiters. Yet the Copyright Office won't affect what is and isn't a fair use by granting the documentarians an exemption; copyright owners can still sue for infringement if they don't like what a filmmaker does with their work. They could also accuse a filmmaker of illegal circumvention if they prove their infringement claim; after all, the exemption would only apply to non-infringing clips (i.e., fair uses). The only real effect if the exemption is granted is that documentarians would have easier access to video clips as they're making their films, which would increase their productivity and, potentially, help them compete against the studio's releases. The MPAA's members should be willing to meet the documentarians in the marketplace, rather than trying to hold them back in the Copyright Office.

Documentarians, DVDs and the MPAA | Technology | Los Angeles Times

It’s Time to Legalize Personal-Use DVD Copying | Threat Level

 It’s Time to Legalize Personal-Use DVD Copying | Threat Level

It’s Time to Legalize Personal-Use DVD Copying

• By David Kravets

SAN FRANCISCO — A federal judge here Thursday or soon thereafter is likely to conclude RealNetworks’ DVD-copying software is unlawful, and therefore should be permanently barred from distribution.

That’s the correct interpretation of the Digital Millennium Copyright Act. Yet we think it’s offensive that the 1998 act produces the absurd result that consumers are considered hackers and copyright scofflaws just for duplicating DVDs for personal use.

By suing RealNetworks over the RealDVD-copying software, the Hollywood studios fear losing control of the DVD like the music industry did with the CD.

It’s OK to copy music from CDs, for example, and place it in an iPod. Yet, it’s illegal to do the same with a DVD. When it comes to the DVD, there’s not even a question of fair use.

How can the DVD and CD be treated so differently? Answer: The Digital Millennium Copyright Act, which protects the DVD but not the CD.

Hollywood pushed hard for the DMCA, in part to produce the DVD. The studios were savvy enough to have seen how easy it was to duplicate the CD, which was not encrypted. Attempts to lace CDs with Digital Rights Management had failed.

But the DVD was different. It was born with encryption, now called the Content Scramble System. It is designed to prevent duplication. Under the DMCA, gadgets and software allowing duplication of encryption-protected works are prohibited.

That’s because the DMCA outlaws circumventing encryption to duplicate copyrighted works. It also forbids trafficking in circumvention products – although plenty of underground duplication solutions exist.

That brings us back to the ongoing litigation between the Motion Picture Association of America and RealNetworks, which is expected to conclude as early as Thursday. Hollywood fears that, if U.S. District Judge Marilyn Hall Patel blesses RealNetworks’ DVD copying software, which allows only one copy of a DVD to be made, the studios’ stranglehold on the DVD would be forever lost.

A RealNetworks victory would send the message to the general public that it’s OK to copy DVDs.

But DVDs cannot be copied without circumventing encryption, although RealNetworks claims its copying software is covered under the Content Scramble System license it acquired from the DVD Copy Control Association.

Circumventing encryption is barred by the DMCA. This situation should be changed to allow the public the lawful right to make backup copies of DVDs – those discs that children fling around like Frisbees and lick like lollipops.

RealNetworks is making the silly argument that its RealDVD software does not circumvent encryption technology. But what’s sillier is that RealNetworks finds itself in a courtroom, facing monetary sanctions, for producing a product that should be legal.

It’s Time to Legalize Personal-Use DVD Copying | Threat Level

Supreme Court deals setback to cable TV firms on video recording - Los Angeles Times

Supreme Court deals setback to cable TV firms on video recording - Los Angeles Times 

Supreme Court deals setback to cable TV firms on video recording

Companies want to offer customers a service that doesn't require a set-top box. The court asks the Justice Department to determine whether it would violate the Copyright Act.

By David G. Savage
January 13, 2009

Reporting from Washington -- The Supreme Court declined Monday to clear the way for cable TV companies to offer their customers a new, easier way to record broadcasts for later viewing -- and without needing a video recorder in their homes.
Instead, the court asked the Justice Department to weigh in on whether this new video recording service would violate the copyrights of the TV networks and Hollywood film studios.

Three years ago, the networks and studios went to court in New York, seeking to block Cablevision Systems Corp. from introducing its Remote Storage-Digital Video Recorder. They said the Copyright Act gave them "exclusive rights" to control and profit from their copyrighted works.
The court's move will delay for months a final decision. Lawyers for the incoming Obama administration will be asked to study the legal question and then advise the court on their conclusion.
The pending case could have a wide effect on the emerging era of video on demand. In 1984, the Supreme Court cleared the way for the use of home videocassette recorders when it rejected a copyright challenge from the TV and film industry.

Afterward, VCRs became standard equipment in most homes. Now the cable TV companies want to go a step further and record shows for their customers at their request. The copies would be stored in companies' central computers rather than in a digital record at home.
Cablevision's chief operating officer, Tom Rutledge, called it a "tremendous victory for consumers" last year when a U.S. appeals court rejected the TV networks' copyright challenge. "This is a real opportunity to transform television," he added.
Fearing that prospect, the networks and studios appealed to the Supreme Court in October. They said Cablevision was violating the law because it did not plan to pay a licensing fee to make copies of their TV shows.
The legal debate has turned on a simple question: Who is doing the copying? A federal judge ruled against Cablevision in 2006 and said it was copying television shows for consumers. Last year, the appeals court ruled for Cablevision and said consumers would be copying their favorite shows for themselves.
Comcast Corp. and Time Warner Cable Inc. said they planned to introduce a similar service if Cablevision prevailed in the legal battle.
The Supreme Court appeal was led by Cable News Network and joined by the all the major network and film studios. Other groups, including Major League Baseball, the National Football League and the Screen Actors Guild, separately urged the court to hear the case.
They said the case could be the most important ruling on copyright law since the 1984 decision in the case of Sony Corp.'s video recorder.
On Monday morning, the court issued a one-line order in Cable News Network vs. CSC Holdings, saying the solicitor general "is invited to file a brief in this case expressing the views of the United States."
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they took no part in this decision, apparently because they own stocks in the affected companies.
If the solicitor general advises the court to take up the issue, the case would not be heard until the fall.
david.savage@latimes.com

Supreme Court deals setback to cable TV firms on video recording - Los Angeles Times

Federal court rules network DVR does not violate copyright - Related Stories - AAF SmartBrief

 

Federal court rules network DVR does not violate copyright

AAF SmartBrief | 08/05/2008

In a move that could potentially transform the way advanced video services are rolled out to viewers, the United States Court of Appeals for the Second Circuit in New York ruled Monday that DVRs that operate via a central storage server rather than a set-top storage device do not violate copyright law. Analyst Craig E. Moffett said the decision "means a huge increase in the number of viewing hours per day potentially subject to ad-skipping." The use of networked technology paves the way for the delivery of interactive and dynamic advertising via recorded programs. Wall Street Journal, The (subscription required) (08/05) New York Times, The (08/05)

Federal court rules network DVR does not violate copyright - Related Stories - AAF SmartBrief