UPDATE: The U.S. Supreme Court denied the petition for certiorari on June 29, 2009.

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The petition we are talking about here is the petition for certiorari filed in the US. Supreme Court in the case more formally known as The Cartoon Network LP, LLP  v. CSC Holdings, Inc. (2d Cir. 2008), petition for cert. filed sub nom. Cable News Network, Inc. v. CSC Holdings, Inc. The dispute concerns Cablevision’s plans to deploy a remote DVR system that would permit subscribers to record content broadcast over the Cablevision network to remote servers maintained by Cablevision, for playback at will. Cablevision brought the action seeking a declaratory judgment that the deployment and use of the system would not infringe the copyrights of content owners who provide programming to Cablevision.

Talking about video recorders and copyright is, of course, a U.S. Supreme Court déjà vu moment – the Court ruled in 1984 in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), that the sale of home video recorders used to tape television program for later viewing did not constitute contributory copyright infringement.

The lower court (Judge Denny Chin, Southern District of New York) ruled that the use of the planned remote DVR system would infringe the copyrights of content owners, but the Second Circuit reversed. Both rulings involved close examination of the technical operation of the remote DVR system, including consideration of whether copies made by the system were made by the remote subscriber or by Cablevision (the subscriber, not Cablevision, the Second Circuit ruled), and whether the second-long segments of programming read into the system RAM (“buffer copies”) are “fixed in a tangible medium of expression” within the meaning of the Copyright Act (no, concluded the Second Circuit). The RAM copying issue is a highly technical one that arises often in cases involving digital processing of data, as discussed in our blog post on the Second Circuit ruling.

According to the Supreme Court docket,  the petition for certiorari is on the Court’s agenda for Thursday, June 25, the last conference of the current term.

This is the second time the petition has been on the Court’s conference agenda. The first time the petition was considered in January, the Court issued an order inviting the U.S. Solicitor General to file a brief expressing the views of the United States on the merits of the petition. The Solicitor General’s brief filed in May 2009 took the position that the petition should not be granted, because the ruling did not conflict with any ruling of the Supreme Court or any other court of appeals, and because the stipulations of the parties (which limited consideration of certain underlying issues) “make this case an unsuitable vehicle for examining the issues raised by network-based recording and playback systems.”

A point of interest, the docket indicates that neither Chief Justice Roberts nor Justice Samuel Alito took part in the consideration of the petition in January, and thus presumably they will not do so on June 25. This suggests that if the Court decides to grant the petition, only seven of the nine justices would participate.

Set out below are the issues framed in the petition for certiorari filed by Cable News Network and the other content owners. The Electronic Frontier Foundation (one of numerous amici)  has links to many of the filings in the case.

QUESTIONS PRESENTED

1. Whether the Second Circuit’s ruling that Cablevision is not legally responsible for its copying and performance of Petitioners’ copyrighted works fundamentally destabilizes copyright law and inverts the proper relationship between direct and secondary copyright infringement, due to the court’s expansive misreading of Sony Corp. v. Universal Studios and complete disregard of New York Times. V. Tasini.
2. Whether the Second Circuit erred in ruling that Cablevision is not directly liable for its copying of Petitioners’ programs because (1) Cablevision designed and operates its service to use computers, rather than human beings, to make copies for customers who request them, and (2) “buffer copies that Cablevision itself admittedly creates in that process are not “fixed,” under a misreading of the plain language of the Copyright Act that conflicts with the interpretation uniformly adopted by three other Circuits and the Copyright Office.
3. Whether the Second Circuit erred by holding – under an interpretation of the Copyright Act that conflicts with the plain statutory language and decisions of other Circuits – that Cablevision’s performances of Petitioners’ programs are not “public,” and therefore not infringing, because Respondent designed its service to send separate on-demand transmissions generated from separate copies of the same program to members of the public.