Ex©lusive Rights

Cable News Network, Inc., et al. v. CSC Holdings, Inc., et al. (Brief for the United States as Amicus Curiae)

The big news from this weekend is that the Solicitor General has filed a brief arguing against the Supreme Court granting cert in Cable News Network v. CSC Holdings. The SG’s amicus brief was filed in response to an order from the Supreme Court inviting the United States to weigh in on the case. To briefly review, Cablevision planned to offer a DVR-like service. The service would differ from preexisting DVRs in that it would allow users to record content housed on a hard drive at Cablevision locations, and not on a DVR at a user’s home. A group of content companies brought suit for copyright infringement arguing that Cablevision, by providing the service, would directly infringe their works. The Second Circuit found that (1) buffer copies weren’t sufficiently fixed to be considered copies for purposes of liability for copyright infringement; (2) even though Cablevision would house the content on its servers, it the consumers would make the copies; and (3), the playing of the content by consumers wouldn’t constitute a public performance.

The Solicitor General made two arguments against granting cert:

No Circuit split or conflict with Supreme Court precedent

The SG’s first argument was that the Second Circuit’s decision doesn’t conflict with precedent from other Circuit Courts or the Supreme Court:

The Second Circuit is the first appellate court to address the copyright implications of the shift from a set-top-based to a network-based system of enabling consumers to record and play back television programs of their own choosing. The decisions on which petitioners rely addressed different technologies and arose in different factual contexts. As a result, there is no conflict between the outcome of this case and any previous decision.

The Second Circuit’s decision, however, is unlikely to be the last appellate ruling to address these issues. Other cable providers may initiate services that are similar to respondents’ RS-DVR. Analogous issues also may arise with respect to other network-based services for copying and playing back copyrighted works. Deferring review of the legal issues raised by various network-based playback technologies would allow those
issues to be more fully explored by litigants and the lower courts. This Court would then be in a better position to address the legal significance, if any, of the differences between various technologies and services.

Stipulations make the case a bad vehicle for deciding issues

Secondly, the SG argued that the parties’ agreement not to litigate fair use and secondary liability made the case an unsuitable vehicle for clarifying the legal framework surrounding the RS-DVR:

Petitioners argue that the Court should use this case to “set a standard for copyright protection in the marketplace of automated access to and delivery of copyrighted works.” This case, however, presents an unsuitable vehicle for clarifying the applicable legal framework because the parties’ agreement not to litigate two critical issues—secondary liability and fair use—distorts the questions that remain and would prevent the Court from seeing whole the fundamental controversy in this case.

Less than a month into this litigation, the parties stipulated that petitioners would not pursue any claims based on principles of secondary liability, and that respondents would not raise any fair-use defense. As a result, neither the district court nor the court of appeals addressed those issues, and this Court would have no opportunity to consider them if it granted review. This case therefore presents no opportunity for the Court to “have the final say” even as to the legality of the particular (and currently unique) RSDVR service that respondents seek to offer.

Other commentators on the brief

Sherwin Siy from Public Knowledge:

This brief is a heartening development, showing that the Solicitor General’s office has made a thorough and thoughtful intervention. Hopefully the Court will think so as well.

Ben Sheffner from Copyrights & Campaigns:

Of course, DoJ does not get the last word; its brief is only a recommendation, which the Supreme Court is under no obligation to follow. That said, the Court does accord considerable respect to the solicitor general’s opinions, and the chances of cert. being granted — a long-shot in any case — just dropped dramatically.

John Palfrey from the Berkman Center:

The brief is terrific.