DoJ: Supremes should pass on RS-DVR case

Having been asked by the U.S. Supreme Court to provide an opinion of the Cablevision RS-DVR case before the high court decides whether to pursue its own review, the U.S. Department of Justice late last week recommended that the Supreme Court not hear the content industry's latest appeal in the case. The Supreme Court has yet to make its final decision about the three-year-old case, in which a band of media companies and other content firms joined in suing cable TV company Cablevision Systems over the company's Remote Storage-DVR service, now considered a precursor to network-based DVR services that have been studied and tested by other service providers.

The content companies originally won a judgment that the RS-DVR offering violated copyright laws, but last year, the 2nd Circuit Court of Appeals reversed that ruling, and speculation immediately began to mount that Cablevision could soon launch RS-DVR commercially and that other carriers likely would not be far behind with similar offerings. However, the content firms appealed their case to the Supreme Court, a move that has been seen as causing service providers to stall their plans while the legality of network-based DVR hangs in the balance. Still, a Sanford Bernstein analyst recently suggested Cablevision could launch RS-DVR commercially as early as this summer.

In the DoJ's filing, the department's Solicitor General was careful to say the legal questions surrounding RS-DVR remain viable, but that current lawsuit is "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." Whatever the resolution of the case, it could prove important in influencing not only the near future of DVR service launches, but the long-term future of content deals between media companies and service providers.

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