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Cablevision's counter punch

Wed, 06/07/2006 - 8:33am
Jeff Baumgartner, CED
Cablevision Systems Corp. has chosen to fight fire with fire regarding recent allegations from several networks and studios that the MSO's trial of an "RS-DVR" (remote storage digital video recorder) service violates copyright laws. Cablevision named 20th Century Fox, Universal City Studios Productions, Paramount Pictures Corp., Disney Enterprises Inc., CBS Inc., ABC Inc. and NBC Inc. in the counterclaim filed this week. In it, Cablevision outlines what it views as legal protection stemming from the 1984 Sony Betamax case, which held that consumers are allowed to record copyrighted material for fair, private use, and that Sony was not liable for supplying the recording device to customers. That case provided the legal groundwork for the more widely used VHS platform, and has been invoked for newer and increasingly popular home-side digital video recorders. Cablevision, which introduced set-top-based DVRs to customers in November 2004, noted that it has not been sued by a programmer for supplying those. Cablevision believes its RS-DVR approach should also fall under fair use protection. "The functionality and technology of the RS-DVR are identical to traditional set-top storage DVRs in all relevant aspects; the only change is to the physical location at which programs recorded by Cablevision's customers are stored," Cablevision's filing read. "The physical relocation of computer memory from within the DVR set-top box to Cablevision's headend as part of RS-DVR will not affect how customers operate the DVR device." Under Cablevision's RS-DVR concept, the customers, not the operator, set the recordings on network-based hard drives. And, unlike video-on-demand, those customers access only the file/recording they make on the network, rather than stream it from an asset/recording shared by multiple customers. Cablevision also explained that the storage capacity of RS-DVR will be less than or equal to what the MSO offers in set-top-based DVRs. The RS-DVR also will not allow customers to redistribute programs via the Internet or strip commercials from programs that customers record, or enable "automatic" commercial skipping. Cablevision forwarded that the RS-DVR concept is "misunderstood" by the plaintiffs in the case, and that they are "mischaracterizing it as a 'video-on-demand' service." The MSO further claimed that the challenge raised by the programmers and studios named in the countersuit "represents a misguided invocation of copyright law, which would stifle innovation and roll back the rights of consumers." The operator noted that its RS-DVR trial is slated for this month, with expectations of a wider rollout. Moreover, Cablevision said that "it does not intend to negotiate with any Plaintiff for a new and separate license for RS-DVR." Several studios and programmers are trying to prevent Cablevision from launching the trial and subsequent service. Among legal requests, the countersuit is asking the court to deny a request by the programmers for a declaration of infringement, to deny a request by them for injunctive relief, and to award the MSO costs and "reasonable" attorneys' fees.
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