Today the Supreme Court reportedly resolved not to hear the appeal on the Second Circuit’s Cablevision decision. This denial comes shortly after the Court has received the U.S. Government's brief recommending to reject the petition.
Is this good news or bad news? It depends on whom you ask. It is clearly bad for the content industry that fought and lost this battle against CSC Holdings and Cablevision. By contrast, those who generally find the industry’s aggressive enforcement tactics and litigious attitude objectionable would probably cheer. Remote DVR operators, on their part, have gained a seemingly important precedent. But as the Government’s brief indicates, it is a highly fact-specific ruling. It is not good for you if the precedent you relay on could be easily distinguish from your case in various ways.
A precedent against the profit-hungry industry we say? - fair enough. Now, with Cablevision as the leading case, we can rest assure that a transitory copying that lasts for 1.2 seconds does not (but sometimes perhaps it would) constitute fixation, and that a reproduction that endures for several minutes surely satisfies (but, then again, maybe it wont pass) the fixation test. It depends.
As to the public performance right, in the post-Cablevision era we can say affirmatively that a company like Cablevision, which transmits the recorded programs to its subscribers, does not publicly perform the work. But what to do with the Copyright Act, saying that to perform a work publicly means to “transmit … a performance or display of the work … to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times”?
The petition focused indeed on two very basic questions. It begged for essential clarifications concerning the legal tests controlling the quintessential issues copyright law is about: When does a reproduction take place? What does it mean to “publicly” perform a work? How to apply those tests to operators of distant, largely automated DVR services and other content offers involving buffer copying and digital transmissions? Hard to say. And after Cablevision, it will likely become even harder. We lose greatly on the side of legal certainty here. A confused legal system that sends confusing signals to entrepreneurs, technology developers and users, is a costly one, and not only to litigants, but also, and more importantly, to society.
Perhaps Congress, and not the judiciary, is the proper venue for resolving such matters. But so long as the legislative process is stuck, some hoped (me included, moved by entirely nonpartisan sentiments) that the Justices would pick up the glove (in fact, four Justices would have). It is difficult for me to accept the position expressed in the Government’s brief, which encourages more litigation on questions that have been ping-ponged in courts for the past nearly two decades now. And this is precisely what we’ll continue to see: Laborious, charged and enormously expensive copyright litigation, more and more of it, and not much solid ground to stand upon. Until the next cert, perhaps.