Today is a momentous day for the Copyright Alliance. It’s the first time we have filed a brief in any case, and this one was with the U.S. Supreme Court, asking it to hear an appeal of a 2nd Circuit Court decision reversing a lower court in Cartoon Network v. CSC Holdings, Inc. You can see our press release here, and our amicus curiae brief.

In short, this is a case involving video delivery, but it has ramifications across copyright industries, and thus our interest in the case.

Cable systems license video works from copyright owners, and then distribute it to consumers. Sometimes consumers store some of that video on digital video recorders, and occasionally those DVRs are provided by the cable company. Cablevision came up with a way to create an on-demand DVR-like service on its servers, where at the request of the consumer it records programming and then makes it available for the subscriber.

That sounds straightforward enough. The problem is, it involves Cablevision making massive amounts of copies, none of which are licensed. The fact is, this service operates much more like a video-on-demand service, and that must be licensed. Our brief cites several cases either ignored by the 2nd Circuit or interpreted overly broadly or narrowly, and emphasizes that the courts can’t encourage companies to find elaborate ways to engineer around their obligation to license creative works.

Now video copyright owners have appealed this case, and many other copyright industries and organizations are filing amicus briefs today as well. We’re not presumptuous enough at the Copyright Alliance to think we’ll necessarily be the tipping point for the Court to take the case. But our interest goes beyond the arguments of those separate briefs. Photographers, publishers, software makers, songwriters and others could see their work licensed to a third party for one use, only to then see it copied and distributed through another use without a license. Our brief contains some examples of this potential abuse. That is why it makes sense for the Copyright Alliance, an umbrella organization representing the panoply of copyright organizations, to file.

The membership of the Copyright Alliance is diverse indeed, with music, motion pictures, broadcasting, business and entertainment software, newspaper and magazine and book publishing, visual arts including photography and graphic arts, and amateur and professional sports leagues. It should be noted that only two of the Copyright Alliance’s 46 members indicated they preferred the 2nd Circuit decision stand. AT&T and NAB come at the issue from the viewpoint of distributors, not copyright owners, so we made clear in the brief their disagreement. No copyright owner in the Alliance asked to be listed in opposition.

It’s unclear if the High Court will take the case. We’ll watch closely. If they don’t we’ll monitor the potential impact the decision might have across the copyright industries, and the possible litigation that could ensue. Far better to prevent those harms to creators now, and prevent further litigation, with adoption of review by the Supreme Court and a reversal of the 2nd Circuit decision.

This entry was posted on Wednesday, November 5th, 2008 at 11:07 am by Patrick Ross and is filed under copyright law, licensing, property rights. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.