A federal appeals court has overturned a ruling that prevented Cablevision in New York from rolling out a remote storage digital video recorder system or RS-DVR. Cablevision called the ruling “a victory for consumers” but it also represents a significant win for the cable industry. It could lead to a dramatic increase in the number of homes that are able to skip adverts.
The appeals court in Manhattan overturned the ruling of a lower court that the Cablevision, rather than its customers, would be copying programmes. It said that the district court erred in concluding that Cablevision, rather than its customers, would be making the copies.
A number of television networks, led by Cartoon Network and CNN, together with a number of studios, had claimed that use of the centralised recording would amount to an unauthorised reproduction and public performance of their programmes.
The panel of three judges disagreed. “The person who actually presses the button to make the recording supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine,” they concluded.
They compared this to a store proprietor who charges customers to operate a photocopier on its premises.
A landmark Supreme Court judgement in 1984 established the precedent that Sony video recorders did not break copyright by allowing consumers to record programmes for their personal use.
The judges also concluded that because each playback transmission is made to a single subscriber using a single unique copy produced by that subscriber this did not amount to a performance “to the public”.
The Cablevision case could still end up in the United States Supreme Court.
“This is a tremendous victory for consumers, which will allow us to make DVRs available to many more people, faster and less expensively than would otherwise be possible,” Tom Rutledge, the chief operating officer of Cablevision told reporters.
Cable companies are keen to enable customers to record programmes on central storage, rather than supplying and maintaining digital video recorders in the home.
Enabling such a service through existing set-top boxes would save them money and provide a further competitive advantage over satellite operators. It may not be such good news for companies like TiVo that produce domestic digital video recorders. It could also lead to a rapid rise in the number of homes that record programmes in this way, in many cases skipping advertisements during playback.
The judgement is certainly significant, but not unexpected and not as far reaching as some analysts have assumed.
In the case of the Cablevision remote storage system, each customer is responsible for recording their own copy of a programme on a remote server. Although centralised storage can be cost-effective, storing multiple copies of the same programme is clearly inefficient.
What cable and telco operators would really like to do is to enable customers to access a single stored copy of a programme, just like video on demand services. Such services are already available in many countries, but generally require the authorisation of the distributor, and may require separate video on demand rights.
Rather than trying to hold back the tide of technology in the courts, some argue that distributors may be better advised to investigate ways to work with service providers on ways to deliver their programmes more effectively.
After all, consumers can already buy digital video recorders and with the cost of storage continuing to fall, they can record programmes whenever they want and avoid as many commercials as they want.