Cablevision’s Remote PVR Plans Can’t Proceed, Judge Says

Programmers such as Time Warner’s Cartoon Network and Fox sought an injunction against the service after Cablevision announced its plans last year. The ruling not only puts the kibosh on Cablevision’s plans but will give pause to other digital media innovators including online, said industry and consumer advocate lawyers, industry officials said. Cablevision will continue to market its set- top box PVR service while it considers appealing Chin’s ruling, it said: “We are disappointed by the judge’s decision, and continue to believe that remote-storage DVRs are consistent with copyright law.”

The ruling is a boon for copyright holders because it sends a message that other companies considering remote PVR services need to license programming before they use it, said attorney Katherine Forrest, who represented Cartoon Network in the suit. “I don’t know what technology other companies may have, but if they're going to use proprietary content, they need to get a license to do that.”

The judge’s 38-page opinion was surprisingly technical, a cable attorney said. Chin spends pages detailing how program signals would be fed into the Arroyo servers that power the remote PVR system and are copied before finally reaching a subscribers home. “Once the Arroyo server receives the list of recording requests from the Vitria server, it finds the packets for that particular program, which are sitting in the primary ingest buffer, then copies them to another place in its memory called the secondary ingest buffer,” Chin wrote in a typically technical passage. Chin used the technical language to draw a line between the remote PVR service and an in-home recording device like a VCR, the lawyer said: “Server copies, buffer copies and QAM… All of it is designed to bolster the distinction between the VCR that you get off the shelf” and Cablevision’s service.

Those developing new network technologies will have to tread carefully around copyright issues in light of the opinion, the lawyer said: “It does sort of remind people that they need to look carefully when they have more than a stand-alone, take-it-out-of-the-box product.” Anyone with such technologies -- from the Slingbox to Google -- will have to examine these questions, he said.

Cablevision argued that by offering a remote PVR service it was merely extending the wire between the conventional PVR and the TV set, but Chin didn’t buy it. Though the cable subscriber hits the “record” button on his or her remote, Cablevision makes and transmits the copy of the program, Chin found.

The opinion is a setback for technical innovators and could have implications for online services, said Jason Schultz, Electronic Frontier Foundation staff attorney: “This is a danger zone.” The ruling could be applied to e- mail and other online services that make copies and transmit media, he said: “The Internet is a massive series of copy machines. Every website, every e-mail, every instant message… Every time you go online you're making copies of everything.”

Rather than restrict consumers rights to make any copies, policy makers need to draw a distinction between harmful and legitimate copies, Schultz said: “The danger is if these arguments stick, any time a consumer uses any online services to help them enjoy media legitimately that puts the company at risk. Then we're not going to have any interesting new products or innovation in those fields.”

The opinion wasn’t a shock and isn’t a huge setback for video technology companies that make the servers that allow network PVRs, said SeaChange Vp-Business Development Tom Rosenstein. Ultimately, distributors and programmers will agree on terms to allow this type of service, he said: “Verdicts like this have been found all along the side of the media highway. There’s too much to be gained by the two cooperating.” SeaChange made a remote PVR system for a customer outside the U.S. where copyright concerns weren’t as prevalent, he said. A ruling like this isn’t likely to curb demand for the product, he said: “Every one of our customers is interested in it. It’s simply a matter of waiting and making sure you're ready when the broadcasters and cable operators come forward with some sort compromise.”