In January, I wrote about [Cablevision and the Infinite TiVo](http://johnaugust.com/archives/2009/cablevision-and-the-infinite-tivo), a plan by a cable operator to shift recording of TV shows from users’ boxes to a central server:
> Cablevision wants to offer DVR as a service instead of a device. Rather than recording 30 Rock on the box attached to your TV, the show will be recorded at Cablevision’s headquarters. Then, when you want to watch it, Cablevision will send the show to your television. If it works right, it should feel just like a normal DVR. Only without the cost of the DVR.
I thought it sounded great if you were a consumer, or Cablevision. And pretty damn bad if you were a copyright holder, or someone who produced content. Like, say, a screenwriter.
> Cablevision’s RS-DVR is back-door video-on-demand. They’re trying to offer the networks’ output to their customers on their own terms, without paying any additional fees.
The U.S. Supreme Court disagrees. Sort of.
Today, it [refused to hear an appeal](http://online.wsj.com/article/BT-CO-20090629-711145.html) on the Cablevision case, allowing the Second Circuit Court’s decision to stand. Cablevision can begin introducing its service.
In a brief to the Supreme Court, the U.S. Solicitor General’s office had already urged the Court to skip this case, [rather than risk bad precedents:](http://www.techlawjournal.com/topstories/2009/20090529.asp)
> Network-based technologies for copying and replaying television programming raise potentially significant questions, but this case does not provide a suitable occasion for this Court to address them.
> The parties’ stipulations, moreover, have removed two critical issues — contributory infringement and fair use — from this case. That artificial truncation of the possible grounds for decision would make this case an unsuitable vehicle for clarifying the proper application of copyright principles to technologies like the one at issue here.
If Cablevision’s service really is *exactly* analogous to a conventional DVR — a giant farm with one hard drive per customer, recording shows only a time-forward basis (no reaching back to record last week’s 30 Rock) — then it’s pretty easy to use the metaphor of a very long hard drive cable. A different case, or a more ambitious service, would offer a better venue for figuring out what role a middleman can play in offering content to consumers.
I don’t think consumers really want a virtual DVR. They want content. They want to watch whichever TV show they want, whenever they want it. And they should be able to.
As I said in my first article:
> The studios should then negotiate with Cablevision and all the other cable and satellite providers to roll out a system that calls this service what it really is: video-on-demand. A consumer should be able to watch (or record in their home) an episode when it’s first broadcast, or get it through VOD for a fee. That fee should be low, cheap enough to make it an appealing alternative to piracy.
