Does Cablevision Matter?

Implications: The copyright community lost a significant court case this month when, on appeal, Cablevision was able to defend its new RS-DVR service.   The legal issues matter tremendously, in my view; but the puzzle for me is whether the RS-DVR service itself is really all that important.

Analysis: The copyright community lost a significant fight this month when an appellate panel ruled that Cablevision's RS-DVR service does not infringe copyright law.  The decision is a blow to be sure; it limits some important copyright doctrines and, if it sticks, might disrupt a number of other important legal cases.

For this post, though, I want to puzzle about whether the RS-DVR is itself important.  That is, I see why the legal rules at issue are important; but is this case mainly important because of its longer term implications for the law, or is there really something consequential about RS-DVRs themselves?

Me?  I'm skeptical.  The RS-DVR is, from a customer's perspective, just like a normal DVR.  The customer must decide what he wants to record and push the right button in time; the customer can then watch the programs he himself triggered.  Thus the threat to the industry from the RS-DVR seems to overlap the threat from a normal DVR (think TIVO) rather than being something entirely new.

Now, as a legal matter, there are important differences.  For instance, the RS-DVR is designed in a way that makes it easier for an entity like Cablevision to monitor, detect, and stop infringing behavior.  That might make the law treat the RS-DVR differently from a normal DVR.  With control, after all, rightly comes responsibility.

My point here, then, is not that the case is unimportant (far from it) and not that the case ought to come out the same way as would a pure DVR case (again, no).  My point is only that a loss here matters a lot for the law, but not a lot for any practical economic consideration.  The RS-DVR and the normal DVR pose a similar threat.  If the RS-DVR gets a clean bill of health, or if it ends up being shut down, the real world will still look roughly the same.  Normal DVRs will just pick up the slack, with very little economic difference for the cable companies, the viewers, or the content community.