Where’s the beef? For audience members at a recent continuing legal education program put on by the Los Angeles County Bar Assn., it quickly became clear that it wasn’t just on the supper plate at Lawry’s Prime Rib but also on the agenda, as the discussion turned to a talk by Kenneth Steinthal, managing shareholder at the San Francisco litigation firm Greenberg Traurig. He shared some of his encyclopedic knowledge from more than 30 years in litigation with the 75 lawyers and law students in attendance, analyzing the Cablevision decision and its repercussions on the entertainment business.
Cablevision was sued by television networks for copyright infringement associated with the company’s remote storage DVR service, which enabled subscribers to copy programs transmitted over its cable service for later, streaming playback (commonly referred to as “space shifting,” not to be confused with “time shifting“). Because all copies on Cablevision servers were made at users’ direction and maintained in dedicated storage space accessible only by the user who directed that the copy be made, the U.S. Second Circuit Court of Appeals reversed a grant of summary judgment against Cablevision, concluding that “such transmissions are not performances ‘to the public,’ and therefore do not infringe any exclusive right of public performance.” 536 F.3d at 139.
Steinthal fast-forwarded from the Cablevision ruling to ABC v. Aereo Inc., where a firm allowed users to access free, over-the-air broadcast television via PCs, smart phones and other devices. That recorded programming was streamed on-demand from user-specific copies to each customer. Broadcast networks sued Aereo in a U.S. District Court in New York for copyright infringement in March, 2012, and a district judge denied a requested preliminary injunction, saying: “But for Cablevision’s express holding regarding the meaning of the provision of the Copyright Act in issue here — the transmit clause — Plaintiffs would likely prevail on their request for a preliminary injunction. However, in light of that decision, the Court concludes that it is bound to deny Plaintiffs’ request.” Case No. 1:12-cv-01543.
Steinthal noted that implications of Cablevision extend to other media innovations, including music “lockers,” services offering content storage in the “cloud.” Examples of services allowing remote access in the “cloud” to users’ music libraries, with varying levels of licensing by copyright owners, include: mSpot, Apple, MP3tunes, Google and Amazon. These user-upload models have been launched without label-publisher licenses under the outline permissible in Cablevision.
The great uncertainty this ruling and others have created in 21st century Entertainment-Media Law has begun, however, to resolve in respects: By allowing for separate storage and individual user-access to content, media companies have responded to Cablevision, he noted. Parties may avoid liability for infringement, even amid rapidly evolving technologies (such as those that allow for “space shifting”), by researching and following case-law precedent. It’s clear that technology will race ahead of the law. It will remain a challenge to discern whether copyright infringement occurs or not, whether payments are owed for content use, or not, contingent on whether it is recorded or transferred. Cablevision, as a case, will matter. Still, when peer-to-peer services like Napster sprang up and changed the online landscape, those involved in innovation lacked the luxury of researching and relying on case precedent. Ultimately, business and the law are forced to react; law firms will see copyright develop, and, they, in turn, advise clients on how to avoid infringement. Which is not to say that various parties in the process won’t beef about it — and have beefs with others, too.