Studios and Broadcasters Sue Cablevision over "Remote Storage DVR"

  Four movie studios (Paramount Pictures, Twentieth Century Fox, Universal, and The Walt Disney Company) and three broadcasters (ABC, CBS and NBC) have sued Cablevision in the US District Court in New York, claiming that the cable operator's planned "Remote Storage DVR" (RS-DVR) service infringes on their copyrights, and seeking an injunction to stop the launch of the service. The service, which Cablevision is hoping to deploy on a trial basis in Long Island next month, will allow individual Cablevision customers to record and store standard- and high-definition programs in their own dedicated 80-Gigabyte space within the company's headend facilities, using their existing, basic digital set-top boxes (they will be able to record up to two programs simultaneously, while watching a third, previously taped program; as with conventional DVR's, Cablevision says, customers will be able to select programs to record through the EPG, and will control their own recordings: they will be able to view and delete only their own recorded programs, only in their own homes).

Cablevision--which says that it expects RS-DVR will eventually allow it to offer DVR functionality to all its customers--claims to have evaluated the copyright implications of RS-DVR, and says that it believes the service is "permissible" under current copyright law, which, in accordance with the so-called "fair use" precedent set by the famous Sony Betamax case, allows individual consumers to make copies of programs for personal consumption. "Consumers have well-established rights to 'time-shift' television programming by making copies for personal, in-home viewing," the company argued in its press release announcing the new service. "This new technology merely enables consumers to exercise their time-shifting rights in the same manner as with traditional DVR's, but at less cost."

The plaintiffs claim that the term, "RS-DVR," is designed to spin the service as being covered by the Betamax case's "fair use" precedent, whereas the fact that recordings will be hosted centrally in Cablevision's facilities means that the service is nothing more than an unlicensed VOD offering: "While Cablevision apparently will call its service 'RS-DVR,' presumably to make it sound like a mere extension of digital video recording equipment, the proposed service is nothing of the kind," the lawsuit reads. "Cablevision's proposed service is an unauthorized video-on-demand service that would undermine the video-on-demand, download, mobile device and other novel and traditional services that plaintiffs and other copyright owners have developed and are actively licensing into the marketplace." Cablevision, in a statement released Wednesday, countered that the lawsuit "is without merit, reflects a fundamental misunderstanding of Cablevision's remote-storage DVR, and ignores the enormous benefit and well-established right of viewers to time-shift television programming."

Another major US cable MSO, Time Warner Cable, spent considerable resources on developing a headend-driven DVR service called MystroTV. However, MystroTV, instead of allowing consumers to make their own recordings, would have required Time Warner Cable itself to automatically make recordings of programs that would then be accessed on-demand by consumers--a scenario which is clearly not protected by the Sony Betamax ruling. The company eventually abandoned MystroTV after it ran into problems securing rights for content that would be stored on the service. Time Warner Cable has since adapted some of the technologies it developed under the auspices of MystroTV to create a service called Start Over that allows its digital customers to restart TV shows that are already in progress. The MSO has been careful to work with programmers to secure the rights to enable Start Over on their programming, and, consequently, the service does not allow viewers to fast forward (which, of course, would allow them to skip commercials).

If Cablevision prevails in the lawsuit and if its trial of RS-DVR proves successful, other cable operators are expected to launch similar services: at the Banc of America Media, Telecommunications and Entertainment Conference earlier this year, Comcast COO Steve Burke, and Time Warner Cable CFO, John Martin, both praised Cablevision's headend-driven DVR initiative, and intimated that their companies are very open to the possibility of following its lead.

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