The cable industry is about to get a taste of what its like to be on the wrong side of the fair use unfriendly Hollywood. Several of the studios and their broadcaster arms are suing Cablevision, claiming that their video recording service, called “Network DVR,” violates their copyrights.
Network DVR differs from a TiVo like service in that subscribers would retrieve shows not from a hard-drive in a set-top box, but from the cable system itself. Subscribers would choose the shows they want, and they would be recorded on a central computer.
The studios say it is ok for consumers to time shift their favorite programming, but that cable systems currently only have a license to simultaneously retransmit the programming they provide. If the cable companies want to store their programs, the studios say, they must either negotiate a separate license with the studios, or give them a portion of the revenues from the service. Needless to say, Cablevision disagrees, and believes that its service falls squarely within consumers' right to time shift, which was explicitly protected in the landmark Sony v. Universal Studios Supreme Court case, , otherwise known as the “Betamax” case.
I've spent a fair amount of time trying to convince the cable industry that it should reject tech mandates like the broadcast flag and join the fight to preserve fair use. I was successful in convincing them not to join in Hollywood's brief in our broadcast flag case,, but that decision was based on not wanting to concede that the FCC should have sweeping powers. To the extent that most cable companies are really broadband companies rather than content companies (the exception being Time Warner, which interestingly is not a party to the case), they have a big stake in ensuring that they are not forced to architect their networks in a way that will limit their subscribers' rights and anger them in the process.