Supreme Court Gives Green Light to Cablevision's RS-DVR Project

The US Supreme Court said Monday that it would not revisit a US appeals court's decision last August to overturn a March, 2007 lower court ruling in favor of the plaintiffs in the Cablevision Remote Storage (RS)-DVR case. The decision is in accordance with a recent recommendation (see article published on itvt.com, May 31st) by US solicitor general, Elena Kagan, that the court not hear the case: Kagan was asked by the court to submit an advisory brief on the case back in January. While her recommendation to the court was not binding, it was considered likely to weigh heavily on the court's decision.

Cablevision was sued by ABC, CBS, NBC Universal, TBS, Paramount Pictures, Twentieth Century Fox and The Walt Disney Company, after announcing back in 2006 that it would launch a network DVR service which it said would allow individual customers to record and store standard- and high-definition programs in their own dedicated space within its headend facilities, using their existing, basic digital set-top boxes, and which it claimed would be "permissible" under current copyright law, because the precedent set by the so-called Sony Betamax case allows individual consumers to make copies of programs for personal consumption regardless of whether those copies are stored locally or remotely. The plaintiffs argued that the service--which Cablevision believes will provide DVR functionality significantly more cost-effectively than set-top-based alternatives--was effectively an unlicensed VOD service that would infringe upon content owners' copyrights.

Although it has now been given a green light to deploy the RS-DVR service, Cablevision appears to be eager to do so in a way that would appease content-owners. In a statement welcoming the Supreme Court's decision, Cablevision COO, Tom Rutledge, appeared to hint that the service will be implemented in such a way as to ensure that end-users are not able to completely avoid watching advertising associated with recorded programming: "This is a tremendous victory, and it opens up the possibility of offering a DVR experience to all of our digital cable customers," the statement read. "At the same time, we are mindful of the potential implications for ad skipping and the concerns this has raised in the programming community. We believe there are ways to take this victory and work with programmers to give our customers what they want--full DVR functionality through existing digital set-top boxes--and at the same time deliver real benefits to advertisers." Rutledge added that Cablevision plans to roll out the first implementation of RS-DVR--an application that will allow viewers to "pause live television when the phone rings"--later this summer. Rutledge's conciliatory-sounding statement echoes comments he recently made to Sanford C. Bernstein analyst, Craig Moffett, during a recent briefing: "I think ultimately we'll end up in some commercial arrangement with programmers," Moffett reported him as saying. "We're having discussions with the copyright holders that can make the network DVR model work in their best interests. If they allow physical DVR's to proliferate, it takes it out of their control. If they do it centrally, they could control ad-skipping, measurement, and the timeliness of advertisements would clearly be in the interests of the programmers."