DOJ Urges SCUS to Deny Cert in RS-DVR Case

May 29, 2009. The Department of Justice's (DOJ) Office of the Solicitor General (OSG) filed an amicus curiae brief with the Supreme Court in Cable News Network v. CSC Holdings, urging the Supreme Court not to grant certiorari.

This is the copyright infringement case involving Remote Storage Digital Video Recorder (RS-DVR) systems. This case has also been referred to as Cartoon Network v. CSC Holdings.

The Supreme Court rarely grants certiorari in cases after requesting an OSG brief, and then receiving a recommendation to deny certiorari. However, denial of certiorari is not an affirmance of the Court of Appeals. Moreover, the Supreme Court could grant certiorari in a similar case in the future.

Also, the OSG offered narrow and technical reasons for denying certiorari -- lack of conflict among the circuits, and the parties' stipulation that removed the issues of contributory infringement and fair use from the case. There is also the matter that the Associate Attorney General, Thomas Perrelli, worked for the law firm that represents the petitioners.

Nevertheless, supporters of the Court of Appeals opinion praised the OSG brief, and overstated its significance.

The U.S. Court of Appeals (2ndCir) held that Cablevision Systems Corporation's (CSC) Remote Storage Digital Video Recorder (RS-DVR) system does not violate the Copyright Act by infringing plaintiffs' exclusive rights of reproduction and public performance.

Video cassette recorders (VCRs), which are connected to the consumer's television and store programs on cassettes, and digital video recorders (DVRs), which store programs on consumers' drives, both use consumers' equipment. In contrast, Cablevision's RS-DVR stores programs on drives housed and maintained by Cablevision.

See, August 4, 2008, opinion [44 pages in PDF] of the Court of Appeals, and story titled "2nd Circuit Reverses in Remote Storage DVR Copyright Case" in TLJ Daily E-Mail Alert No. 1,806, August 5, 2008. This opinion is also reported at 536 F.3d 121.

CNN and others filed their petition for writ of certiorari on October 6, 2008.

Several amicus briefs have been filed. See, story titled "Copyright Alliance and Others File Amicus Briefs in Remote Storage DVR Case" in TLJ Daily E-Mail Alert No. 1,854, November 10, 2008.

On January 12, 2009, the SCUS invited the OSG to file an amicus brief.

Elena KaganElena Kagan (at left) is the recently appointed Solicitor General. She was previously a professor at Harvard law school. Before that, she worked in the Clinton administration.

The OSG brief states that "Network-based technologies for copying and replaying television programming raise potentially significant questions, but this case does not provide a suitable occasion for this Court to address them. The Second Circuit is the first appellate court to consider the copyright implications of network-based analogues to VCRs and set-top DVRs, and its decision does not conflict with any decision of this Court or another court of appeals."

The OSG brief continues that "The parties' stipulations, moreover, have removed two critical issues -- contributory infringement and fair use -- from this case. That artificial truncation of the possible grounds for decision would make this case an unsuitable vehicle for clarifying the proper application of copyright principles to technologies like the one at issue here."

It adds that "From the consumer's perspective, respondents' RS-DVR service would offer essentially the same functionality as a VCR or a set-top DVR. And although scattered language in the Second Circuit's decision could be read to endorse overly broad, and incorrect, propositions about the Copyright Act, the court of appeals was careful to tie its actual holdings to the facts of this case."

"The petition for a writ of certiorari therefore should be denied", it concluded.

There is another reason for the DOJ not to advocate the granting of certiorari, and not to file a merits brief. Thomas Perrelli is the Associate Attorney General. Until recently, he was the Managing Partner of the Washington DC office of the law firm of Jenner & Block, and Co-Chair of its Entertainment and New Media Practice. Jenner & Block represents CNN in this case.

While Perrilli's recusal satisfied legal ethical requirements, continuing DOJ involvement in so public a case would have appeared to be improper to many people.

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that "We applaud the Obama Administration taking this early and strong position on the side of innovation and new technology and the ability of consumers to access the digital counterparts to their analog technologies. For over 20 years the right to non-commercial recording of television programs has been protected by the Supreme Court's Betamax case. Home recording is now a near-universal consumer practice, and it has greatly benefitted -- not harmed -- the content industry. We urge the content industry to embrace rather than seek to hamstring digital technologies."

Shapiro added that this "is the first time in recent memory a president has favored innovation over the content industry before the Supreme Court".

The Betamax opinion to which Shapiro referred is Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). The Supreme Court wrote in that opinion that the "sale of video cassette recorders (``VCR´´s) did not subject Sony to contributory copyright liability, even though Sony knew as a general matter that the machines could be used, and were being used, to infringe the plaintiffs' copyrighted works. Because video tape recorders were capable of both infringing and ``substantial noninfringing uses,´´ generic or ``constructive´´ knowledge of infringing activity was insufficient to warrant liability based on the mere retail of Sony’s products."

But see, the Supreme Court's more recent opinion [55 pages in PDF] in MGM v. Grokster, 545 U.S. 913 (2005), the peer to peer music case.

In that case the Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

Gigi Sohn, head of the Public Knowledge, an interest group that advocates less intellectual property rights and enforcement, stated in a release that the OSG "made the correct call".

This case is Cable News Network, et al. v. CSC Holdings, Inc., et al., Supreme Court, Sup. Ct. No. 08-448, a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 07-1480-cv(L) and 07-1511-cv(CON). The Court of Appeals heard appeals from the U.S. District Court for the Southern District of New York, Judge Denny Chin presiding. Judge John Walker wrote the opinion of the Court of Appeals, in which Judges Sack and Livingston joined. See, Supreme Court docket.