Computer, Wireless Companies Seek To Save Cablevision Copyright

Tell D.C. appeals court to leave Second Circuit decision in Cablevision alone

Computer and wireless companies have filed a friend of the court (amicus) brief with the D.C. Court of Appeals related to FilmOn's challenge to a D.C. District court's injunction against the service. It takes no position on the case, but rather asks the court to respect the "right" to copy remotely and deliver private performances of copyrighted works.

They ask that whatever the appeals court decides about the injunction, that it perserve the decision in the Cablevision case, a decision the Second Circuit Court of Appeals used to deny an injunction against similar service Aereo.

Both Aereo and FilmOn say they, like Cablevision are providing remote access, in their case to free TV station signals and DVR functionality.

In 2008, the same Second Circuit Court of Appeals handed Cablevision a significant victory when it overturned a lower court and said the company was allowed to provide remote DVR functionality to its customers by using massive servers at its head-ends to record programming instead of giving them expensive set-top boxes with hard-disk recorders.

In their filing this week in the D.C. federal Appeals Court, the Computer and Communications Industry Association, joined by CTIA: The Wireless Association, USTelecom and others asked the court to preserve what they see as the basic public performance right upheld in Cablevision that is essential to the future of cloud computing.

"Whatever this Court’s ultimate decision here, it should at a minimum approach this case in a way that preserves the holding in Cablevision and respects and reflects these principles," they tell the court.

Key among those is that "the transmission of a user’s lawful copy of a work to that same user in a manner not capable of being received by others is a private performance that infringes no exclusive right of the rights holder in the underlying work."

Public Knowledge also filed an Amicus brief with the D. C. Circuit. It came down in support of FilmOn, but was also concerned about how the lower court decided to impose the injunction and what that, too, could do to deter innovation.