Tag: Fair Use

We just got word that the Supreme Court has declined to review the Cablevision remote DVR case. This is the case where Hollywood and some cable networks sued Cablevision for providing a TiVo-like service where the copy of the recorded program resides on the cable operator’s servers rather than on a hard drive in the home. The studios claimed that both the buffer copies and the copies residing on Cablevision’s servers were a violation of its right to reproduce the program, and that the recordings sent to the customer were a violation of its public performance right. A lower court in New York City sided with Hollywood, but the 2nd Circuit Court of Appeals reversed that decision, ruling that the remote DVR service did not violate Hollywood’s copyrights.

The Court’s decision not to take the case is a huge victory for consumers and all video service providers, not just cable.

Today, the Solicitor General filed a brief that asked the Supreme Court not to revisit an appellate decision that allows the use of remote video recording and playback. While the brief represents only a recommendation to the Court, such recommendations usually carry a fair amount of weight, as the Court asks for these opinions to represent the views of the US government.

The brief argues that the Second Circuit’s decision in Cartoon Network v. CSC Holdings should not be reviewed by the Supreme Court both because the decision is well reasoned, and because it’s not well-placed to make good law if the Supreme Court were to take it up.

As for the first rationale, it’s no secret that I’d agree that the Second Circuit’s decision was rightly decided.

Background: The Solicitor General’s office today recommended that the U.S. Supreme Court not take up a case involving a service offered by the Cablevision cable company. Cablevision wanted to offer a digital-recording service, like TiVo, except that the copying and storage would be done at the cable head-end instead of in a set-top box. A batch of cable companies challenged Cablevision. A District Court upheld the studios in 2007; the Second Circuit U.S. Appeals Court overturned that ruling in August 2008. In October 2008, the studios asked the Supreme Court to take the case.

It wouldn’t have been surprising if there was a semi-panicked conversation in the corporate suites of Sony. Michael Lynton, the head of Sony studios, had just been quoted as saying “I’m a guy who doesn’t see anything good having come from the Internet.”

Some marketing gal or PR guy in the Sony eco-sphere probably realized, hey, our audience lives on the Web. How would it look for our top exec to go around trashing the Net?

Today, American University’s Center for Social Media and AU Washington College of Law’s Program on Information Justice and Intellectual Property, together with Stanford Law School’s Fair Use Project have put together a straight-forward video on what fair use is and isn’t in the world of online video (and beyond). The video is a 7 1/2 minute synopsis of what you’d learn if you had read their Code of Best Practices released in July 2008 which we covered here, and makes understanding fair use, and its importance in our society, easy.

Embedded below is the video. Kudos again to all that were involved.

It’s hard to imagine an American industry as privileged and protected as the newspaper. Right there in the First Amendment to the Constitution, are the words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” No other industry is mentioned in the Constitution.

The rights of journalists, working in print or electronic media, have been protected down through the years. While ordinary citizens might be liable to be sued for libel, the U.S. Supreme Court in 1964 set a higher standard in Times v. Sullivan so that a newspaper could be sued only if it could be proved the paper knew ahead of time that what it was printing was false.

In any other industry, the concept of competitors combining operations might be anathema to rigorous antitrust law (admittedly a stale concept after the past eight years).

If the news industry was as adept with its technology and finance as it is with its corporate whingeing and pleading, we would all be a lot better off. Not content with the Associated Press (AP) and Rupert Murdoch picking fights with Google over links to stories, the Newspaper Association of America trotted up to Capitol Hill to claim ownership of facts and to demand payment for them.

James Moroney, publisher of the Dallas Morning News, claimed a “quasi property right” over facts that were being used for “commercial gain,” not by readers but by “someone else.” Search engines and other aggregators receive “a free ride,” he told the Senate panel on behalf of newspaper grade group. Moroney was aided and abetted by David Simon, the former Baltimore Sun reporter who is now a TV (pardon me, it’s not TV, it’s HBO) writer and producer.

If you were following the DMCA Section 1201 anticircumvention rulemaking proceedings last week, you likely saw Tim Vollmer's video of the MPAA's demonstration on how to create a film clip by pointing a camcorder at a TV set (embedded above). This demonstration was the MPAA's response to an exemption request filed by educators, who are seeking to exercise their fair use rights by breaking the CSS encryption on DVDs in order to make short clips for classroom use.

As you'll recall, a group of media studies professors led by Peter DeCherney successfully filed for just such an exemption in 2006 (for more on that, see our video interview with DeCherney, embedded after the break). Three years later, the educators have returned, in an attempt to renew the exemption and to expand it to include students in media studies classes as well as educators outside of the media studies field. Despite having three years to regroup, the studios returned with the same tired, apocryphal argument: despite the fact that DVD-ripping is already widespread, if educators are allowed to legally rip, demand for DVDs will plummet and the industry will collapse. As an alternative, they suggest camcording, a cumbersome process that produces low-quality clips while requiring a significant investment in video recording equipment. Practical matters aside, the MPAA's argument for camcording also happens to contradict a number of the organization's other arguments against fair use--a fact that was not lost on many of the witnesses at last Wednesday's hearing.

On Thursday, the US Trade Representative issued this year’s Special 301 Report, which is meant to highlight countries that are seen as not doing enough to protect copyrights, patents, and trademarks. Countries are placed on a “Watch List” or a “Priority Watch List.” Countries on the Priority Watch List face the possibility of trade sanctions.

Placement on the lists is based upon comments and consultations from interested parties—and the parties who keep showing the most interest in this process are the industry groups that profit from IP. The list has been used as a means for the content industries to add the weight of the US government to their gripes about the state of other countries’ IP laws.

This week, the Honorable Judge Chin of the Southern District of New York granted us permission to file an amicus brief regarding the proposed Google Book Search settlement. Since the proposal’s announcement back in October, we’ve been poring over the 320 pages of text and attachments, meeting with parties on all sides of the issue, and weighing the upsides and the downsides of the deal. In the end, we have some serious concerns about aspects of the proposed settlement, and plan to bring those concerns to the attention of the Court before Judge Chin makes a final ruling. On Wednesday, he granted a 4-month extension for those who wish to file, so there is still much to be done, but we thought we’d give you a preview of the issues we plan to raise.