Last March, Cablevision announced a new service that was, in essence a centralized DVR. Any subscriber, in exchange for an extra fee, would be allocated space on a Cablevision storage disk, from which he would be able to access on demand any program that had been transmitted over the Cablevision network and that she had designated for inclusion. [See (Cable)Vision or Delusion? (June 2006).]

The content providers took serious umbrage at this, since it was an effort by Cablevision to turn a license for a one-shot broadcast into an unlimited video-on-demand program.

Last week, The trial court agreed with the content providers, rejecting the argument that the service was the equivalent of the casette recorder upheld in Sony:

Cablevision, and not just its customers, would be engaging in unauthorized reproductions and transmissions of plaintiffs' copyrighted programs under the RS-DVR. Indeed, the RS-DVR is not a stand-alone machine that sits on top of a television. Rather, it is a complex system that involves an ongoing relationship between Cablevision and its customers, payment of monthly fees by the customers to Cablevision, ownership of the equipment remaining with Cablevision, the use of numerous computers and other equipment located in Cablevision's private facilities, and the ongoing maintenance of the system by Cablevision personnel.

Indeed, said the court, the service was much more akin to video-on-demand, which is offered by Cablevision pursuant to licenses from the content holders, than it is to a VCR or DVR.

The case is a bit odd, because Cablevision stipulated that it was not raising any fair use defense, in exchange for plaintiffs' agreement not to raise any secondary infringement claims. So Cablevision could not really rely on Sony, which was a fair use case. It's entire argument was that the consumer, and not Cablevison, was engaging in the alleged infringement.

For a fuller discussion of this service and Sony, see (Cable)Vision or Delusion? (June 2006).