The case of whether a proposed remote digital video recorder service from Cablevision infringes copyright is being escalated to the highest level. The United States Supreme Court has asked the Justice Department for the views of the Solicitor General on an appeal by movie studios and television networks against an earlier ruling. Elsewhere there are renewed claims about the invalidity of the TiVo ‘Time Warp’ patent.

Cablevision announced plans for its RS-DVR Remote Storage Digital Video Recorder back in 2006. It would allow customers to record programmes on central servers rather than on digital video recorders in their homes. That could offer considerable savings to cable television network operators.

Several major movie studios and television networks claimed that Cablevision did not have the necessary agreements to offer the service.

They won a court case before a federal judge but lost on appeal. They then took the case to the Supreme Court, which has now asked the government for its views.

It will mean further delays on a decision whether to accept or reject the appeal. The eventual outcome could be the most significant copyright judgement since the precedent set in 1984 by the domestic digital video recorder.

Let’s do the Time Warp again
Meanwhile, a separate dispute over digital video recorders continues to simmer after EchoStar was obliged by a court to pay TiVo over $100 million in damages for patent infringement.

EchoStar says it has worked around the patent owned by the digital video recorder pioneer. The Patent and Trademark Office has now granted a petition to re-examine the software claims of US Patent 6,233,389 for a ‘Multimedia Time Warping System’.

In a statement EchoStar said “there is a ‘substantial question’ of patentability” in the software claims in the light of prior patents that appear to render the TiVo patent invalid as obvious.

TiVo responded robustly that this “follows numerous failed attempts to invalidate TiVo’s groundbreaking Time Warp patent,” including a recent re-examination at the request of EchoStar that concluded last November. It said the latest request is based on a combination of two prior art references that have previously been considered. TiVo said it was confident that the patent office “will once again confirm the validity of all of the claims of the Time Warp patent”.

Sadly the patent does not actually enable warps in the weft of time itself but “allows the user to store selected television broadcast programs while the user is simultaneously watching or reviewing another program.”

Ironically the Time Warp now seems to refer to the duration of the dispute that has pre-occupied TiVo while other digital video recorders continue to be supplied by others.

Despite being synonomous with the digital video recorder, TiVo only has about a 10% share of the market in the United States. In October 2008 TiVo had around 3.5 million subscribers, a number that has actually been falling in recent years, while there are around 32 million digital video recorders in use in the United States.

TiVo has asked the courts to hold EchoStar in contempt, arguing that its patent is still infringed by EchoStar. A further hearing is set for February.