Seven Hollywood studios and TV networks are suing Cablevision over its new network DVR service. To a consumer, the service is just like TiVo in that they choose programs to record and watch at a later time. The difference is that there is no set-top DVR on the consumer’s premises; it’s all recorded at Cablevision’s end and sent to the customer when they request it. The studios and networks claim that this is not like TiVo but instead like video-on-demand, which would require Cablevision to license the shows it broadcasts to its customers. Cablevision counters that time-shifting is a well-established consumer fair use right.
William Patry wonders if this is the next Betamax case. I think two things are key to establishing that this is consumer time-shifting. First, does Cablevision record only one copy of a show that is requested by customers and does it then multicast that copy? (Isn’t this how MP3.com did it?) The news accounts I’ve read have been sketchy on the technology, but the WSJ reports that “Rather than recording all content automatically on a centralized device, the Bethpage, N.Y., company would create individualized storage within the network for each subscriber that paid for the service.” Second, is a show available only to a customer that had the foresight to record it, or can you simply say, “You know, I’d like to watch the last two episodes of 24 even though I never recorded them, but the cable company did, so I’ll just call them up.” If not, and if each customer has hard drive space on the server that they fill up with their own copies, there’s a good case that this is just like TiVo and thus a fair use by consumers that are merely using Cablevision as their tool for recording.
But who knows, the Ninth Circuit decided this week that when Congress wrote the word “less” in a statute they really meant “more.”