Obama's new Solicitor General asks Supreme Court to back off remote-storage DVR case

By Eriq Gardner

We're certain that somewhere in Hollywood today, a lawyer is muttering these words: "Thank heavens that Obama didn't pick Kagan."

Yes, President Obama didn't nominate U.S. Solicitor General Elena Kagan to the Supreme Court, and that's about the only consolation that any pro-copyright attorney can take after reading Kagan's amicus brief that recommends the high court keep its nose out of the debate over remote-storage DVRs.

To review: After Cablevision announced in 2006 that it would allow subscribers to store TV programs on the cable operator's computer servers instead of on a hard-top box, Hollywood studios went nuts, predicting that the days of licensing on-demand content would be over. 

Naturally, the content industry sued and won summary judgment at the district court. But in August the 2nd Circuit Court of Appeals reversed the decision, leaving the plaintiffs to ask the Supreme Court for review. In response, the Court cleared its throat and asked the Solicitor General to weigh in on the case.

Enter Kagan, who is basically telling the Court: Don't go there!

Her main point in the brief seems to be that the Second Circuit's decision was the first to talk about this particular issue and the parties involved had already removed two of the bigger legal clouds (fair use and contributory infringement) haunting copyright circles. The Supreme Court likes to clear up confusion at the appeals level, and Kagan argues that no conflicts exist yet. 

But Kagan goes a step further, comparing remote-storage DVRs to VCRs, bringing up the Sony/Betamax case, and lightly slapping Cablevision on the wrists for not making fair use a bigger issue.

It sounds to us like Kagan would love the Court to determine when customers have a fair-use right to copy, which should cheer those on the copy-left at the EFF and worry many in the entertainment industry. If this is what our new Solicitor General thinks the Supreme Court should be considering, the industry should be watching her closely.