Appeal Finds Cablevision Remote DVR Legal

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Almost a year and a half ago, Cablevision lost a copyright suit brought by content owners over “remote DVR” service. The basic idea behind remote DVR service is to take hard drive-based video recorders out of cable subscribers’ homes and instead let them set up their recording preferences and store their preferred shows on servers managed by the cable provider. When users want to watch recorded video, it streams to the user’s residence just like any other on-demand programming.

From the point of view of cable providers, remote DVR capabilities make sense: DVR systems can be managed directly in a proper data center, instead of distributed through living rooms and dens in their service area. Fixing a DVR system means sending a tech to swap out a rack unit, rather than rolling a truck out to a subscribers’ residence.

Content providers sued Cablevision over the system, claiming that storing the video content remotely and re-streaming it to subscribers amounted making an illegal copy of their content and retransmitting the the data; re-transmission would violate the licenses cable companies had to distribute the content in the first place. They also complained the service stored their content in an temporary buffer, also in violation of Cablevision’s license and copyright.

However, Cablevision appealed the decision…and the appeal has paid off in a big way. The Second Circuit Court of Appeals reversed the lower court’s summary judgement an injunction on the remote DVR service (PDF), finding that the temporary buffers used by the Cablevision system were transitory and therefore did not infringe. The court also ruled that, since recordings are made at the direction of subscribers in advance of broadcast, therefore the subscribers really do the copying, rather than Cablevision, even though the cable company owns and maintains the systems. The appeals court also ruled that re-streamed recorded content did not violate copyright because the re-transmission was intended for the subscriber rather than a public performance, and thus doesn’t violate the Copyright Act.

Although content providers may continue the battle in court, the ruling appears to clear the way for Cablevision (and other cable operators) to build remote DVR systems and offer the service to subscribers. (Comcast is known to have been working on a such a service.) Remote DVR capability may be less expensive for subscribers than DVRs supplied by a cable operator, since the cable company will be able to manage the resources (and their software) more efficiently; however, by storing recording schedules and programming on cable operator servers, remote DVR services may also raise privacy concerns, particularly if recording choices or programming information for subscribers were compromised.

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