Appeals Court Reverses "Remote DVR" Decision:


The Second Circuit Court of Appeals today reversed a lower court decision that, as CDT and a number of others argued in a 2007 amicus brief, had the potential to chill innovation in products that use the Internet to provide storage and computing functions from remote locations. The lower court ruling had blocked Cablevision from rolling out a digital video recorder (DVR) system that stores recorded television programs on remote servers instead of in set top devices in the customers' homes. CDT applauds today's decision, which finds that providing such a remote DVR does not constitute direct copyright infringement. CDT also welcomes the court's finding that transitory data held in buffers for a mere 1.2 seconds do not constitute "copies" for purposes of the Copyright Act.

Posted by mikki at 11:28 PM | Permalink

Comcast Sues FCC, Says Net Neutrality Order Legally Inappropriate:

Comcast has filed suit against the Federal Communications Commission (FCC) today in order to block the agency's decision to sanction Comcast for blocking certain Internet traffic.

Comcast has released the following statement attributed to David L. Cohen, Executive Vice President of Comcast Corporation:

"Although we are seeking review and reversal of the Commission's network management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the Commission's Internet Policy Statement. Thus, we intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year. We also remain committed to bringing our customers a superior Internet experience.

We filed this appeal in order to protect our legal rights and to challenge the basis on which the Commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules. We continue to recognize that the Commission has jurisdiction over Internet service providers and may regulate them in appropriate circumstances and in accordance with appropriate procedures. However, we are compelled to appeal because we strongly believe that, in this particular case, the Commission's action was legally inappropriate and its findings were not justified by the record."

The formal petition can be seen here [PDF].

Update 9/4/2008: Statement of Gigi B. Sohn, president and co-founder of Public Knowledge: "We expected Comcast would appeal the Commission's order. The company opposed it every step of the way, even as they failed to disclose their throttling of Internet traffic. We believe the Commission will prevail and the rights of Internet users will be protected."

Update 9/4/2008: Martin responds to Comcast lawsuit: we still want answers

Elsewhere: BroadbandReports, GigaOm, Bits NYT

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Posted by mikki at 11:12 PM | Permalink

Copyright content providers lose control of a DVR market to cable companies.:

Who should derive revenue from remote DVR systems?  According to a panel of the Second Circuit Court of Appeals Cartoons case, the revenue should not go to the content providers.  This decision, grounded in three very narrow interpretations of the Copyright Act, works a shift of potentially significant revenue away from content providers.  Hopefully, it will be challenged and reversed on rehearing.

The case seemed simple for the content providers, but with judicial panel sympathetic to the other side, it became what is a potential nightmare for copyright owners in digital environments.

            A recurring issue today in court is who control or has an advantage in the newly emerging digital and elated markets.  Are technologists like Google in control with a right to use any content any time without permission, or do we still value the content creators?   This is not a philosophical issue and the combatants are not professors or mavericks.  They are large companies with billions of dollars at stake.  This is the era of the information wars.

            In the Cartoons case, Cablevision implemented a remote DVR system, allowing customers to select, store, and later play cable broadcasts.  In the system, when cable programs are received by Cablevision, they are routed through a buffer (buffer 1) and copied briefly while software checks if any customer had requested copying of the program for later replay.  If there was a request, the program would be copied into a server (buffer 2) and held for later viewing by the customer.  When the customer later desired to watch the program, the DVR system delivered a performance to the customer’s home video.  Variations of this system are widespread in the cable market and are a robust competitor to home recording systems.

            Cablevision did not ask for licenses from the content (program) providers for copying their programs or publicly performing them at times other than the original transmission.  It simply implemented the system and charged customers who desired to use it. 

            The Second Circuit concluded that this was fine – a major corporation (a cable company) could reuse another company’s copyrighted product without permission or payment.  This was a complicated decision, but fundamentally, a choice by the panel to turn potentially billions of dollars away from the creative parts of the industry to those who copy and retransmit.  It was a wrong decision.

            First, the panel held that copying was not copying if the copied image lasted for only a second or two.  So, the entire line of cases started in the Ninth Circuit’s MAI decision remains intact, but now seems to become a question of …..   I do not know what. 

            Second, the full content was copied into buffer 2 by Cablevision’s system.  But, no, cablevision who charged for this service, did not make the copies – the customers did – at least if you believe the panel of he court!

            Strike 2.

            Strike 3 is when the court held that, when the customer who caused the copy to be made, eventually asked for it to be performed in the customer’s home – this was not a “public” performance.

            This may be among the worst appellate court decisions in copyright law history

Posted by mikki at 11:10 PM | Permalink