The Most Important Copyright Case You've Never Heard Of

To the extent that ordinary people follow major lawsuits alleging copyright infringement, those cases probably involve Google in some way. There is the Google Book search case, where the publishers and authors guild are suing Google because they provide a service that allows you to search for small snippets of books. And of course there is the Viacom lawsuit against Google's YouTube, where the former is accusing the latter of "massive intentional copyright infringement" for permitting the posting of video clips from programs like the The Daily Show and The Colbert Report.

But there is another case in a federal appeals court in New York that may be even more important, and almost nobody has heard of it. It involves a lawsuit brought by several of the Hollywood studios and a number of cable and television networks against Cablevision, the fourth largest cable system operator in the country. Cablevision provides a service that allows a viewer to record a program for later viewing, just like a TiVo or any other Digital Video Recorder (DVR). Like a TiVo, the viewer records a program simply by pressing a few buttons on a remote control, and like a TiVo, viewers can record only one show at a time and can record shows only on channels they already subscribe to. But Cablevision's "Network DVR" service is slightly different because the recording is made on a hard drive on Cablevision's property rather than on a hard drive in a set-top box in your home. That small distinction, according to the studios, makes Cablevision's service one for which an extra licensing fee should be paid. Cablevision's brief was filed at the end of May, and a group of public interest organizations (including Public Knowledge) and companies filed a friend of the court brief last Friday.

Unfortunately for Cablevision and TV viewers everywhere who might benefit from a set-top box-free service (other cable companies had plans to roll out the same service, but are waiting to see how this case ends up), a New York City federal district court judge agreed with Hollywood. The decision is remarkable because the judge took it upon himself to look under the hood of both the TiVo and the Cablevision technologies, and disregarding the fact that the viewer experience is exactly the same for both, determined that the mere fact the Cablevision has some role in the recording of the program makes it liable for massive damages under the copyright laws.

What makes this case particularly dangerous is that Hollywood is using it to try and render useless 23-year-old Supreme Court precedent that says that if a technology is capable of "substantial non- infringing uses" then its manufacturer cannot be held liable for copyright infringement. That ruling, known commonly as the Sony Betamax decision, came after Hollywood sued Sony, claiming that the VCR was an illegal "copying machine." The studios lost that case and are still sore about it, despite the fact that they make far more money in video and DVD sales than they do at the box office. Aided and abetted by some government officials who should know better, Hollywood is floating the meme that the Sony decision stands only for the proposition that viewers have the right to make temporary copies of over-the-air TV shows.

Had Hollywood won the Sony case (and it almost did, but Justice O'Connor changed her vote at the last minute), it is highly unlikely that we would today have DVRs, MP3 players like the iPod, and the personal computer would probably be used for nothing more than word processing and spreadsheets. Indeed, what is a computer other than a "copying machine"? If the Federal Court of Appeals sides with Hollywood, who knows what current and future technologies will be at risk?