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Does Disallowed DVR Service Foretell YouTube's Fate?

The court accepted the plaintiff's contention that Cablevision, rather than its customers, was directing the copyright infringement. Will the same rules apply to YouTube?

Last week, a U.S. District Court in New York City ruled that Cablevision's digital video recording service, Remote-Storage DVR, was unlawful. RS-DVR was intended to permit Cablevision subscribers without a DVR to record programs on company servers for playback at a later time.

The decision affirmed that while it may be legal for consumers to record television, it's not legal for a cable company to do so on their behalf.

In a blog post, Sherwin Siy, staff attorney at Public Knowledge, an Internet rights advocacy organization, said, "In essence, Cablevision put an extra-long cable on a DVR and housed it on its own property." That, evidently, isn't legal.

"We are disappointed by the judge's decision, and continue to believe that remote-storage DVRs are consistent with copyright law and offer compelling benefits for consumers, including lower costs and broader availability of this popular technology," said a Cablevision spokesperson in a statement. "We are currently reviewing the opinion and assessing all of our options, including an appeal, while we continue to deploy conventional set-top box DVRs."

"This short-sighted decision makes no sense in an era of technological innovation," said Gigi Sohn, president and co-founder of Public Knowledge, in a statement following the ruling. "The judge was wrong to make an artificial distinction between a set-top box used for lawful recording and the remote service offered by Cablevision used for the same function."

If the ruling goes unchallenged, it "will stifle innovation and consumer choice," said Sohn, who called on Congress to update U.S. copyright law.

Internet entrepreneur Mark Cuban, a known defender of copyrights, called the lawsuit a huge strategic mistake in a blog post and urged the aggrieved television networks and film studios to strike deals with Cablevision instead.

"While I think the court accurately applied copyright law as it stands today, it's still anachronistic at best," said law professor Eric Goldman in his blog. "Does it really matter if the hardware is in the users' possession or operated as a service for their benefit? It shouldn't."

The ruling begs a comparison between the service that Cablevision hoped to offer its customers and the service that Google's YouTube currently offers. "I can't make a clean distinction between Cablevision storing files at the direction of the user and YouTube storing files at the direction of the user," said Goldman in a phone interview.

The distinction appears to be that the court accepted the plaintiff's contention that Cablevision, rather than its customers, was directing the copyright infringement, which is to say recording television. And while it's not clear whether the ruling will be appealed, it's equally unclear whether Cablevision's position will remain distinct from YouTube's. Viacom's recent lawsuit claims YouTube is engaged in massive copyright infringement. Stay tuned, there may soon be a lot less to watch.

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