Mike McGuireWhat can I say about this? Specific legal and operational issues aside, this case is another great example of what I think is the real real challenge facing the media industry when it comes to making a successful transition to online distribution: using the courts and law as a first, second and third response to new consumer services.
After piling up legal costs – and saddling themselves with a relatively low ranking in the court of public opinion – the music industry seems to have taken the lawsuit off the table as the first resort of any perceived threat posed by digital and IP-networking technologies and their usage by consumers.
While the music and movie businesses are as different as night and day, perhaps the movie industry and TV networks could also take a hint from the music industry and take the lawyers off speed-dial in this case.
Now, the likelihood of that actually happening in the Cablevision case is low. But the question I have is this: Are the legal issues around the “network DVR” truly significant enough to warrant a protracted legal battle? Is this another Sony Betamax? The Sony decision was crucial in that it established the precedent of time-shifting as a “fair use” exemption to copyright infringement claims.
Handicapping federal court cases, especially copyright cases, is tricky business. That said, given the lower court’s ruling in this case, and the somewhat narrow ruling of the Supreme Court’s in the Grokster case – which established the notion that providers of technology (in that case P2P software) could be guilty of contributory infringement if in the distribution and marketing of their product they made “affirmative steps” to foster infringement. Given the time-shifting precedent –and it appears that’s the key value delivered by the network DVR — it’s not as if the legal issues are completely lining up in their favor.
More important, however, is that the amount of time this case is likely to take might be better served by striking licensing deals with Cablevision and all the other carriers and providers which have claimed to be interested in offering similar network DVR offerings – if Cablevision prevails.
Think about it. This case has been in the system for nearly two years. In that time, Apple sold close to a billion songs via iTunes and cranked out a one-million-downloads-per-week runrate for movies and TV shows. In the TV industry, Hulu was launched and has shown very strong growth in viewers.
Time is not a surplus commodity right now in the media business and one has to wonder about those rightsholders who think it is.
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