Today, the Solicitor General filed a brief that asked the Supreme Court not to revisit an appellate decision that allows the use of remote video recording and playback. While the brief represents only a recommendation to the Court, such recommendations usually carry a fair amount of weight, as the Court asks for these opinions to represent the views of the US government.
The brief argues that the Second Circuit's decision in Cartoon Network v. CSC Holdings should not be reviewed by the Supreme Court both because the decision is well reasoned, and because it's not well-placed to make good law if the Supreme Court were to take it up.
As for the first rationale, it's no secret that I'd agree that the Second Circuit's decision was rightly decided. The Solicitor General's brief says that there's no need to think that the Second Circuit was wrong. Like the appellate court, the brief notes that if an individual consumer is the one who decides to make a copy, then the individual, and not the entity supplying the means of making the copy, is directly liable if that copy infringes copyright. As the brief notes, this doesn't give anyone a free pass on infringement. The provider of the service can still be indirectly liable, through the doctrines of contributory infringement or inducement. Or, in another factual situation—one where the provider of a service is more involved in deciding to make the copies—the service provider might still be liable.
Likewise, the Solicitor General states that the Second Circuit was reasonable in finding that buffer copies on Cablevision's servers were too transient to be considered “fixed in a tangible medium.” Again, although the cable networks expressed concern that this finding might render all RAM copies non-copies, the Second Circuit's ruling wasn't nearly so broad. It'd be a stretch to say that anyone would claim this case stood for the proposition that copies of works on an iPod shuffle weren't actually copies. As the brief says, the ruling was not creating a hard-and-fast “1.2 second rule,” but was simply saying that under the circumstances in this case, the data in the buffer just didn't meet the necessary standards to legally be considered copies.
The brief also argues that the Second Circuit was well-reasoned. Since the Second Circuit found that the playback of programs from the remote DVR wasn't a “public performance,” the plaintiffs argued that this opened the door to all video-on-demand services also falling outside the realm of copyright. Again, the Solicitor General counters that this is an unfounded concern. Since the court limited its holding to situations where a unique copy was made with each recording, and where only the individual who made the recording could watch it, the business model of VOD would not be undermined if the opinion stood.
As for the procedural questions, the Solicitor General was commenting on the reasons the Supreme Court might decide to review a case, even if it weren't going to reverse the decision. One of the more prominent reasons the Court would review a case is if there's a split in how different appellate circuits interpret the law. Here, the cable networks were arguing that there were circuit splits in each of the three major holdings of the Second Circuit. In each of these holdings, the Solicitor General says that the splits don't actually exist—that in each case, the networks are stretching to find conflict between federal courts where there is none.
Another reason for the Court to take up a case would be to clarify the scope of the law and prevent legal uncertainty. Reversing the Second Circuit's decision wouldn't do this, however. The reason for this is that the questions presented to the Court were so strictly limited: neither fair use nor secondary liability were raised as arguments, and therefore couldn't be considered by the Court. So despite all of the similarities between this case and the Sony Betamax case that first established time-shifting as fair use, none of the key arguments that articulated the landmark decision would be decided here.
That would mean that, even if Cablevision won on the direct liability question, they (or any other cable company or DVR service) would still be open to lawsuits for secondary liability. And if the cable networks won, the next DVR service to come along would simply claim fair use. In either of these cases, the litigation would begin all over again, likely ending up right back at the door to the Supreme Court—having resolved nothing of practical consequence.
This brief is a heartening development, showing that the Solicitor General's office has made a thorough and thoughtful intervention. Hopefully the Court will think so as well.