Yesterday I attended the oral argument in the Second Circuit in the Cablevision RS-DVR case, previously blogged here. With the usual caveats about not always being able to tell about the final vote merely from the questioning, I am optimistic there will be a reversal.
The panel consisted of three outstanding judges: John Walker, Robert Sack, and a new judge, Debra Ann Livingston, a former Columbia Law School professor. Judge Walker (ex-chief judge, now on senior status), has been a dedicated public service for almost his entire career. He is the author of a number of excellent copyright opinions. Judge Sack is a First Amendment scholar, the author of "Sack on Defamation: Libel, Slander, and Related Problems (3d ed. 1999) and the co-author of "Advertising and Commercial Speech: A First Amendment Guide." (1999). Judge Livingston is an expert on criminal procedure.
Judge Walker dominated the argument, although Judge Sack was active too. Judge Livingston asked a few questions. The court expanded the time for argument from 12 to 15 minutes a side and then gave Cablevision’s counsel a bit more time on his rebuttal. It was a hot bench as the saying goes. Judge Walker began the questioning by asking Cablevision’s lawyer why RS-DVR wasn’t just like Video on Demand (VOD). Cablevision’s lawyer responded with what was his principal theme: consumer choice: with VOD, it is the content supplier’s choice what you can see. With RS-DVR, it is the consumer’s choice. Walker noted that this was also was true for RS-DVR since consumers could only tape what the content suppliers originally chose to make available. He wondered whether the only difference between the two services was the sequence in which the consumer chooses. The answer, an analogy to iTunes, was not, I thought, particularly apt.
Judge Sack then asked what I think was a softball question: whether the copyright owners could have stopped Cablevision from offering RS-DVR as a condition of the license to initially transmit the programming. Eventually after much to-ing and fro-ing, the answer was yes the studios could by license impose such a condition. I think Judge Sack was making the point that the case was really about money, about what one side or the other could or couldn’t get in contract negotiations, a point that was in fact later made rather caustically, in questioning plaintiffs’ lawyers.
Judge Walker next spoke abut TIVO and noted that the industry hadn’t sued , and he therefore assumed that TIVO was noninfringing. He also noted that not only does TIVO copy the particular programming consumers select, but based on developed preferences, it copies and sends to you programs it thinks you might like. What, he asked, would be the liability of TIVO for such preference-generated copying? Cablevision was quick to point out that RS-DVR did not have a preference-generating copying feature and thus, it was inferred, even better situated. Cablevision took the position that someone who proffers a suggestion is not a direct infringer; therefore, TIVO was not a direct infringer (leaving open whether it could be secondarily liable).
It was then plaintiffs' turn at the podium. Plaintiffs split their time between Kathleen Forrest of Cravath, speaking to the reproduction right, and Bob Garrett of Arnold & Porter, speaking to the reproduction right. Judge Walker asked her what the difference was between RS-DVR and TIVO. She replied that to the consumer they were the same, but the back end was different. Essentially, Walker rejoined, "who cares about the back-end?" Her response, delivered fairly stridently (in keeping with her entire presentation, in which she sometimes almost shouted over the judges), was “but it’s a commercial service!” Nu?
Walker then asked, "what if I want to make a copy of a work for my own personal use. I don’t have any machines that do that so I take it to a copy shop, they make the copy, and I bring it home." Kinko’s was the reply. Walker was not impressed and then asked if Cablevision is directly liable, what is the liability for consumers? She conceded consumers “might” have a fair use argument.
Sack then continued the thread by asking what is at bottom the agency issue for fair use: he asked, “say we on this panel send copies to the XYZ corporation for our personal use, and then get the copies back and use them for our own purposes. Is that infringement?” Forrest answered that the Copyright Act covered hosting in Section 512, but with checks and balances. But Sack's question wasn't about hosting, and i have no doubt her position on infringement via RS-DVR would have been the same had the argument been heard in 1997 before the DMCA was passed.
Next up was Bob Garrret on the performance right. His argument was based entirely on the statutory language regarding the public performance. Cablevision's use, he argued, squarely fell within the plain meaning of the statute. He was calm and measured, in stark contrast to Ms. Forrest. I thought unconvincingly, he argued that there is a single performance, no matter how delayed the second one (the one initiated by the consumer). The court seemed skeptical there was a single performance and seemed to believe that the second performance was private.
We will now have to wait for the opinion.