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Justice Department sides with Cablevision against Hollywood

May 29, 2009 |  3:29 pm

Elena Kagan Just what, exactly, are all those Hollywood types getting in return for their investment in Barack Obama's presidential bid? The Justice Department, a steady ally for the entertainment industry on copyright issues during the Bush administration, today opposed the studios in a potentially precedent-setting dispute with Cablevision over TV recording services. U.S. Solicitor General Elena Kagan urged the Supreme Court not to review the 2nd Circuit's ruling, which held that Cablevision's "network DVR" service did not infringe copyrights (download the brief here.) In addition to some technical arguments about the suitability of the case, Kagan maintained that a network-based recording service controlled by a consumer was on the same legal footing as a VCR in the home -- a device the Supreme Court famously defended in the 1984 Betamax ruling. The critical issue is who makes a recording, not how or where it's made, she wrote, and the 2nd Circuit was correct in finding that individual consumers would be the ones recording TV shows, not Cablevision.

The brief drew praise in tech circles, but Kagan took pains to emphasize how narrow the 2nd Circuit's ruling was. "The court of appeals announced no 'categorical exemption from direct liability' (Pet. 24) for providers of automated services and it did not 'assume[]' (Pet. 19 n.4) that only one person can 'make' a particular copy," she wrote. In other words, the administration's position is that the 2nd Circuit's decision doesn't provide a broad shield for Web 2.0 companies that want to replace home recording and playback devices with online services. Besides, as the brief notes, the appeals court didn't consider the possibility of contributory infringement because the studios and Cablevision agreed not to litigate those issues. (The parties agreed to take fair-use defenses off the table, too.)

Nevertheless, her stance is a departure from the previous administration's expansive view of copyrights. It also shows a welcome degree of technological literacy. "Respondents’ proposed RS-DVR service is part of a broader transition from analog to digital recording and playback, and from business models where consumers purchase a tangible item to those where they pay for a service,” Kagan wrote. Or as Gigi Sohn, president of the advocacy group Public Knowledge, put it more tartly, "Common sense would dictate that a recording is a recording, whether made on a set-top box or in a cable head-end."

Credit: Chip Somodevilla / Getty Images

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

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