which is my Progress on Point on Cablevision's proposed DVR service, is now available.

Conclusions:

(1) Cablevison will lose the case (and should);

(2) The Sony case does not provide nearly as much support as is commonly assumed for the propostion that time shifting is fair use; the Supreme Court rested almost entirely on the idea that harm had not been proven, and strongly implied that if the practice could be shown to harm content owners the decison would go the other way;

(3) As is true of most current copyright controversies, the long-term solutions will not be dished out automatically by some legal precedent; instead, market particpants are going to have to make their own deals. The function of property rights is to establish some clear ground rules that will let those deals get made, and as long as the structure of the market enables such deals to take place, fair use has little role to play.