Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

I’m Just Copying for a Friend

 Here’s an interesting one to watch. The Supreme Court issued a one-line order yesterday in the Cable News Network vs. CSC Holdings case indicating that the solicitor general “is invited to file a brief in this case expressing the views of the United States.”

This case involved Cablevision Systems Inc.’s plan to copy its broadcasts for its customers. In other words, rather than copying the program yourself, at home (via Tivo or video, for example), Cablevision would do it for you. Not a bad offer, sort of a customer-centric, friendly service. Except that the movie studios and networks didn’t see it that way. They regarded this as copyright infringement pursuant to 17 U.S.C. § 106.

Section 106, as you will recall, gives the owner of the copyrighted work the right to prepare derivative works based on the copyrighted work, and to display and distribute copies of it to the public. 17 U.S.C. § 106 (1), (4) and (5). But under Sony Corp. of America v. Universal City Studios, Inc. (aka the “Betamax” case), 464 U.S. 417 (1984), the Supreme Court ruled that the making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement. The Court said this was fair use, and ruled that manufacturers of home video recording devices, such as Betamax or other VCRs, cannot be liable for infringement. In short, the case created a legal safe haven for the copying of content for personal use.

At trial, Cablevision argued that its copying was akin to the individual copying that is permitted under the holding in Sony. The studios and networks argued that it was nothing of the sort; that it was a violation of Section 106 as Cablevision received a benefit from this service, even if it did not directly charge for it. The trial court sided with the studios, but on appeal, the Second Circuit agreed with Cablevision. It held that this conduct was more akin to one’s own personal copying (e.g. with a home videocassette recorder and therefore the ruling in Sony), and thus not infringement at all.

While I like Cablevision’s argument, I’m not sure that I really buy it. That is, while it was not an issue at the time, I think it is fair to say that Sony stood for the proposition that the copying was fair use when it was done by the individual, not by a licensed content distributor who offered the copying service – albeit on the individual’s behalf — as a customer “perk.” Is this really that much different than a VCR just because someone else is pushing the “record” button? If it’s not, why can’t I walk into any Blockbuster, show them my cable bill (thus proving that I’m a subscriber), and demand a free copy of the Sopranos, Season II? And if they won’t hand over one for free, how about just letting me copy it? That is, if Cablevision can make a copy for me and that isn’t infringement, why is it infringement for me to copy of the disk I pick up at Blockbuster?

So, not surprisingly, the Supreme Court granted cert to slap somebody – it just remains to be seen who. Infringement or fair use . . . any bets on this? Given the current make-up of the Court, I’m going with a finding of infringement. Stay tuned.

 

 

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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