Thursday, October 25, 2007

Cablevision Oral Argument

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.


Tim Wu said...

This is Tim Wu, I was there too yesterday, though I didn't see you.

My only addition was this. My feeling was that the judges were feeling out a performance right infringement as a way to draw a line between TIVO and what Cablevision is doing.

But that idea ran into trouble in the rebuttal stage, when Cablevision pointed out teh problem with calling time-shifting a separate performance; that there is no "showing."

My view is that if the panel affirms, it will be on the performance issue.

To add one more thing. Plaintiff's reproduction lawyer also kept referring to the technology as creating a "holding tank" of content; which seemed like an effective rhetorical device for a while; but the judges seemed to want to know whether that description was accurate.

On rebuttal (which again I thought was perhaps the turning point of the argument), defense made it clear that the "holding tank" was a buffer that is destroyed microseconds after being created. That seemed to hurt the argument significantly.

Anyhow, lively and fun panel,


William Patry said...

Hi Tim, yeah I didn't see you either. But in a spirit of friendship I went over and schmoozed with the Viacom lawyers who were there, and even invited them over to Google for a free lunch. I thought Forrest's use of the holding tank metaphor to be inaccurate and came back to hurt her in light of the rebuttal.

My sense on the relevance of TIVO was on the reproduction side because the performance is clearly private in that case, but I didn't sense much appetite for RS-DVR being a public performance, mostly because of the fact that the stream is individual. This may be a case where an architectural inefficiency wins the day legally. Contrast that with, which took the efficiency route by making its own copies, a step that ended up with the company eventually being sold as furniture. What a twisted legal regime that is, eh, where inefficiency is rewarded and efficiency is punished by commercial death.

Harold Feld said...

I will confess, I have a rather contrarian view of this case in that Cablevision continues to retain active control over the copy made by the user. This is where it differs from Tivo. As a Tivo user, I make a recording that I control. That seems directly analogous to _Sony_ and fair use.

But Cablevision's service is very hard to distinguish from a subscription version of its Video on Demand product. I must subscribe to it. When I cease to pay the subscription fee, I can no longer access the recording.

In the internet radio context, the law distinguishes between an ephemeral broadcast and a service where a subscriber can access a library of content and play it under certain terms and conditions. The Cablevision DVR strikes me as too much like a download service for comfort.

William Patry said...

Thanks Harold for your comments. The case illustrates some of the dangers of reasoning by analogy (if indeed that is reasoning at all). Plaintiffs argue RS-DVR is "like" VOD. Defendant argues it is "like" time-shifting. The court wants to know if it is "like" TIVO. RS-DVR, though, is a separate service with its own characteristics, some of which are shared by other services but some of which are not.

Mitchell Zimmerman said...

Sorry not to have seen this earlier. Is it correct that there wasn't any explicit discussion, at argument, on the buffer copying issue? For some of us, whether every fragmentary buffer reprodution is deemed a "fixed" copy is a pretty important question!

William Patry said...

Mitchell, buffering was talked about a lot but the fixation isn't wasn't although it is covered in the professors' brief.

Mitchell Zimmerman said...

I thought the Professors' brief was very good. (But then I would!) Is there a link at the Second Circuit to the argument tapes? And do you happen to have the case no. at hand? Thanks.

Unknown said...


Was the Netcom "Volitional Infringement" Theory ever addressed by the parties or the court during oral argument? I was reading some of the briefs submitted on appeal and thought it was an interesting argument by Cablevision since these cases seemed to be specifically for ISPs. While it doesn't seem like there are many situations where the Netcom theory should be applied outside of the internet, it does seem to support Cablevision's argument for why they are not direct infringers.


William Patry said...

Mike, it was covered in amicus briefs submitted in favor of Cablevision