Think About That For a Minute by Steve Effros

THE NEXT "BETAMAX" CASE In a column in September of 2004, I posed the question of whether it made any sense whatsoever to consider the length of the wire between a recording device and the home television set as the determining factor for copyright law. The answer for me was no then, and it is still no. Now, however, it looks like we are going to get an answer from the courts… and it could have as much importance as the "Sony Betamax" case did to the future of consumer "fair use" rights and home recording. Cablevision has announced its intention to offer "network DVR" capability. It’s pretty simple to understand. Consumer/viewers have exactly the same rights and abilities to record video, replay it, store it, etc., as they do now with a DVR box in their home. The only difference is that the storage, the hard drive, will not be on top of the consumer’s television set, but at the headend of the cable operator. That’s it. That’s the service to be offered. It’s a good deal for consumers. They don’t have to get a new piece of equipment in their homes. Digital cable boxes already have the capability to communicate the desires of the home viewer back to the headend. The electronic program guide is already there. The remote control already has the "record," "play," "pause" and the like buttons on it. The only thing missing is the hard drive to store the information that the consumer wants to watch at a later time. That’s what DVR’s do. TiVo started it, but now the majority of DVR’s are installed by satellite and cable companies. Cablevision is simply saying, ‘why have the consumer spend extra money on another piece of equipment when they have two- thirds of the capability already in place?’ We will provide the hard drive storage at the headend and suddenly anyone who has a digital set top box can sign up for DVR service without the need for replacing or reinstalling boxes. Great idea. The copyright owners have sued. The major motion picture companies, and even CNN say that this type of DVR violates their copyrights. They say Cablevision needs some new form of "right" purchased from them before this service can be offered. They liken it to the "Mystro" plan that Time Warner tried to start several years ago to offer "everything on demand". But this is not VOD. The cable company does not store a library of titles that the consumer then accesses. This is simply a remote-storage DVR. Each consumer controls, programs and stores separately just like with the DVR on top of their set today. The only difference is that the hard drive storage is not built into the box, but is at the other end of the wire. This is an enormously important case, and the whole cable industry should join and support Cablevision in fighting it. The computer and Internet industries too! Because "remote storage" or "remote applications" are going to be common. If the rights of non-commercial, residential home viewers changes as to "fair use" simply based on how the technology they choose to employ works, then we have a whole new era of copyright law that gives the copyright holder rights not based on what they have created, but on how it is delivered, stored or viewed! This changes the copyright landscape massively. It would be the equivalent of Sony losing the Betamax case. This one is important. Follow it carefully. More next week.