Recently for DRMWatch I commented on the Court of Appeals ruling that Cablevision’s remote digital video recorder service did not directly violated copyright. The Court, however, did raise the possibility of indirect liability.
One possibility–perhaps the most sensible outcome–to avoid further litigation, Cablevision will negotiate a license allowing the new service–and content will offer a reasonable price, because their victory on indirect liability grounds is not by any means assured. Indirect liability depends on their being direct liability, and this takes us back into the realm of the Supreme Court’s decision in Sony-in which the Court ruled that time-shifting was a fair use. This is probably not territory that content is all that anxious to revisit, although Sony does leave them some wiggle room. (There is also a problem in the law… some theories of liability depend on whether the performance is “public” or “private,” and this distinction, while useful enough at a time when the only means to serve a mass market was to serve everybody at the same time from the same copy (a concert played in a crowded theatre, for example), is no longer particularly coherent). At the other end of the possibility range is the stupid outcome. There are no further negotiations; content sues, doesn’t have their heart in proving direct liability, and loses. Every manner of remote copying facility for everything springs into being, undermining not only content production but also Cablevision’s service, licensed or otherwise. And then there is more compulsory licensing, which no one likes. Unlikely? Yes, but stupid enough to be real!
Another recent case worth note is eBay v. Tiffany. Another widely trumpeted victory for the Internet in which the result is not quite so one-sided as a bare recitation of the holding suggests.