Intellectual Property Law

Some of you may remember the VCR, a then-revolutionary predecessor to TiVo that permitted people to record television shows in their homes, even (gasp) when not at home. In the early 1980s, the entertainment industry said VCRs would lead to the downfall of television as we knew it because viewers would be able to do such things as fast-forward through commercials, which would undermine the financial structure of commercial television. In an attempt to stop the VCR beast before it could wreak irreparable damage, a number of movie studios sued Sony on the basis that its Betamax VCR induced copyright infringement of the plaintiffs? products. In a landmark 1984 decision, the Supreme Court, in Sony Corp. v. Universal City Studios, Inc. held that the personal use of a VCR to record television programs constituted fair use under the Copyright Act, in part because all VCRs really do is ?time shift? when people watch television shows.

As we previously reported, the Sony decision has found new relevance recently, as it has been asserted as a defense ? mostly unsuccessfully thus far ? in digital file sharing cases. With a recent announcement by Cablevision that it plans to offer a new service that will permit customers to record and playback television shows from a remote server maintained by Cablevision, the limits of the Sony decision may again be tested. According to Cablevision, its remote-storage video recorder service (?RS-DVR?) will function much like a TiVo from the user?s standpoint. The big difference, however, is that the video content will not be stored in the user?s residence, but in a remote server.

Although Cablevision claims that its RS-DVR service does not violate the copyright laws, it seems almost certain that the legality of the product will be tested. While Cablevision will argue that it is doing nothing more than the time-shifting of shows that the Supreme Court approved as fair use more than 20 years ago, content providers will likely contend that Cablevision is doing something entirely different ? and beyond what the Sony decision permits ? because the recording of programs is occurring remotely rather than on a consumer?s in-home device. The entertainment industry will probably also contend that granting RS-DVR service fair use status is not appropriate because the copying would be occurring institutionally and not on an individual basis.

Who do you think will win this battle? Keep reading the Blawg for the answers.

Today's Blogger:  Bob Sloss