Cablevision suit a test case bound to happen

Fair use?

The underlying principle of fair use in copyright law is that if a piece of work is copied, "the author doesn't suffer loss and the copying person doesn't gain".

The legal action this week, filed by the studios to stop Cablevision using network DVRs, attempts to apply a completely different definition to the thinking that underpins this part of copyright law.

The plaintiffs in the suit are Twentieth Century Fox, Universal Studios, Paramount Pictures and Disney, along with broadcasters ABC, CBS and NBC and they are charging Cablevision with copyright violations.

In the last day or so they have been joined in the suit by Time Warner's Cartoon Network and CNN networks.

Cablevision said in April that it would trial the technology using DVR in the network and standard set tops, and immediately other cable operators, notably the largest in the US, Comcast, said it was closely watching the experiment, and would like to offer the same service. Cablevision calls the services RS-DVR, for "remote-storage digital video recorder", and will trial it for 60 days and then if it is well accepted, launch flat out.

Studios agree that currently the US law, under "fair use", or "personal use", gives consumers the right to time shift, but it does not give the right to companies that have a broadcast content license to do anything other than broadcast it. Technically, the DMCA allows for temporary storage of files while they are being broadcast, but this might stretch that definition.

Fair use was originally invented to allow writers to quote from a work when writing about it, but it has subsequently been enshrined in law in various parts of the world, the US included, as a way to allow consumers to make copies of the work for various reasons – as a backup, or to play on another device, with perhaps different operating features, or to play at a later time.

The underlying principle of the owner of the work not suffering loss, is usually interpreted as being broken when a consumer buys the work but no-one pays the owner a license fee. In this case the argument is that the consumer has already paid for the work, it's just a matter of when the work is delivered.

The chances are that if this really went to court, the copyright isn't being broken, but that doesn't mean the existing distribution contract isn't being broken and that's perhaps more important.

The Hollywood studios appear ready to replace the underlying principle in fair use with one that reads "the content can never be copied unless I say so", something that would shake the original 1896 Berne Convention that underpins copyright law, and re-write the World Copyright Treaty that is rapidly becoming the basis of all copyright law globally.

It would be a major backward step in the digital content revolution for consumers and strengthen the broadcast networks that have no way of copying this move, against cable, which has much tighter control over the equipment that is used to view its channels.

What Cablevision had hoped is that it could replace pricey, hot and noisy home based DVRs with a centralised video recording service that would be cheaper for consumers, and which would eliminate the need for multi-room DVRs, while at the same time behaving exactly like a home based DVR. Each home would have its own piece of storage, each piece of storage would not be available to any other home replaying it, and all requests to save video to hard disks would come from a home based remote control.

This was to be the major work-around to network DVRs of the past, which were seen as being dangerous to content owners because a single copy of the content was held and multiple deliveries of it were facilitated. This was effectively a VoD delivery mechanism, and that's where we begin to get closer to the real reasons for the legal action.