It’s not a done deal yet, but it’s looking likelier that Cablevision will be able to deploy networked DVR without any more legal wrangling.
Our story so far: Cablevision tried to deploy networked DVR, was sued by a set of content owners, lost the case, but won on appeal. The appeal was challenged, and the case went to the U.S. Supreme Court. The Supreme Court asked the Department of Justice for its opinion on whether it should hear the case. The U.S. Solicitor General, whose office is part of the DOJ, would make that recommendation.
Last Friday, Solicitor General Elena Kagan recommended that the Supreme Court not consider the case. “From the consumer's perspective, respondents’ service would offer essentially the same functionality as a VCR or a set-top DVR,” according to the Solicitor General’s brief, as reported by several news organizations.
The Solicitor General’s recommendation is not binding on the Court.
The consequence of the Supreme Court not taking the case would be that the Appeals Court ruling – that Cablevision’s networked DVR plan was legal – would stand.
Should that ruling stand, it would be generally good news for anyone in the cable industry. It would mean that in many cases, MSOs would not have to supply or support expensive DVR boxes in customers’ homes.
Setting up network storage is a feat that IPTV suppliers could also accomplish, but that satellite competitors would have a hard time matching.
There’s one caveat in the Solicitor General’s position. Other operators would probably have to follow the Cablevision model fairly closely, otherwise they risk testing the bounds of the decision. The Solicitor General said that copyright issues raised by the networked DVR remain a concern, but that they don’t come in to play with Cablevision’s implementation.
"Network-based technologies for copying and replaying television programming raise potentially significant questions, but this case does not provide a suitable occasion for this court to address them,” according to the Solicitor General’s document.