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Cablevision Plan Faces Fresh Court Hearing

Jeff Baumgartner
LR Cable News Analysis
Jeff Baumgartner
11/6/2008
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The Copyright Alliance, a trade group representing content owners, has filed an amicus brief with the U.S. Supreme Court that seeks to overturn a lower court's decision that favored Cablevision Systems Corp. (NYSE: CVC)'s so-called Remote-Storage Digital Video Recorder (RS-DVR).

The brief has support from the majority of the org's 46 institutional members, which include NBC Universal , Time Warner Inc. (NYSE: TWX), News Corp. (NYSE: NWS), Walt Disney Co. (NYSE: DIS), the Motion Picture Association of America , and several sports leagues. The Alliance said the Supreme Court could decide to hear the case within the "next several weeks… but no later than June" of next year.

In August the U.S. Court of Appeals for the Second Circuit reversed an earlier ruling, giving the green light to Cablevision's RS-DVR plans on the grounds that the system does not directly infringe copyright rules and should therefore be entitled to the same protection already governing more traditional stand-alone DVRs. (See Court Resurrects Cablevision's Network DVR .)

Although a number of industry observers have held that the Supreme Court is the next likely stop for the RS-DVR debate, Cablevision has indicated that it would start deploying the service -- a virtual DVR that uses centralized, network-based servers, but still requires customers to set and playback individual recordings -- by "early next year." (See RS-DVR Debut: 'Early Next Year' .)

The Alliance noted it has never previously filed a brief in any court, "but is impelled to do so in this case because the decision…could be so detrimental to the health of our copyright system. Although this case arose in the context of reproduction and public performance of audio-visual works by a cable systems operator, its potential impact across copyright industries is much broader."

In a release, David Trust, CEO of the Professional Photographers of America, an Alliance board member, argued that the decision by the lower court gives Cablevision and other "infringers a 'get out of jail free card' because they will no longer have to take responsibility for the actual infringement."

Cablevision, which reports its third-quarter earnings today, maintains that its RS-DVR strategy is on solid legal footing.

"We are confident in the legality of remote-storage DVR and are proceeding with our development of the service," the MSO said in a prepared statement.

— Jeff Baumgartner, Site Editor, Cable Digital News

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