The U.S. Supreme Court has an opportunity to chart a clearer course for copyright protection in the digital age if it agrees to hear a case from the U.S. Court of Appeals for the Second Circuit. The matter involves a video-on-demand service offered by Cablevision Systems, and allegations by Cable News Network that the service constitutes the unlawful copying and public performance of copyrighted works.
The case raises at least two serious and unresolved issues. First, who is responsible for making a copy of protected content? The cable customer who makes a selection from the cable company’s video-on-demand service? Or the cable company itself, for putting in place and making available the automated software that allows the customer to make that selection?
Second, what constitutes a public performance? Is a video-on-demand program viewed in the privacy of one’s family room a public performance?
Such issues are important because they go beyond the narrow scope of video-on-demand and touch on broader questions of how digital technology will be used to produce, store, transmit, and copy content across a variety of platforms – and how that content is to be protected in this digital environment. Once again technology has far outpaced law and regulation, and is striding ahead in territories still largely uncharted.
How the courts map that territory will depend on how much value they place on protecting the creative rights of copyright holders. Meanwhile, the digital age in general and the Internet in particular have generated a new class of content users (including many college professors) who believe that anything goes when it comes to obtaining and sharing copyrighted material. (Remember Napster?)
In the Cablevision matter, however, professors of a different stripe have filed an amicus brief urging the Supreme Court to take the case. Led by copyright guru Prof. Raymond Nimmer, this group of six law professors and one economics professor (all with impeccable intellectual property credentials) argue that creative rights are worth protecting and that the law should come down on the side of copyright owners. (Two of the group, Dean Rodney A. Smolla of the Washington & Lee University School of Law and Prof. Stan Liebowitz of the University of Texas at Dallas, sit on the advisory council of the National CyberEducation Project, a program of The Media Institute.)
I agree with these professors, that the Supreme Court needs to take this case for the sake of digital information systems going forward. I further agree that copyrights are essential – and that copyright protection needs to be clarified in this digital age.