Copyright Talk

“Time-shifting” is not a word you expect to hear from federal court judges in the real world. You especially don’t expect a court to rule that US citizens have a right to time-shift. (I suspect that our right to timeshift does not include situations where the IRS is involved – “But Mr. TaxMan, I timeshifted back to last week so my return is not late at all!” ) TiVos are time-shifting technology. They may seem like magic to a lot of us, but they are actually a type of Digital Video Recorder, commonly referred to as DVRs. There are a number of DVR’s on the market, TiVo is simply the best known one. Back in the ‘80’s, Universal Studios sued Sony, alleging that it’s new Betamax video recorder was a device intended to promote copyright infringement, because it was being used to record television shows. The US Supreme Court ruled that it was legal for TV viewers to video record television shows on their home video recorders for viewing at a later time - effectively “time shifting” their television schedule. Such a use, ruled the Court, was not copyright infringement.

The battle is now being fought again, this time with the studios trying to distinguish between home DVRs like TiVo, and so-called remote storage DVRs (RS-DVR), a device that allows a cable company to do store programs on a server at their facility, and allow individual home users to pull their time-shifted programs off that remote server.

A district judge ruled in March that the RS-DVR was a copyright infringement, siding with the studios. The cable companies appealed that ruling to the second circuit last week, arguing that the RS-DVR is not any different than a home DVR.

The history of copyright infringement lawsuits involving new technologies (starting with a lawsuit involving player piano rolls at the turn of the last century) would have me placing my betting money on the cable company to win. Courts have been reluctant to find the potential for abuse a sufficient reason to prohibit an entire technology. Actual infringement is punished, but providing technology that could be used to facilitate infringement is rarely restricted.