In Supreme Court action this morning, the justices asked the solicitor general to weigh in on a major dispute over development of remote recording services by cable television operators. The order in the case, Cable News Network v. CSC Holdings, also is important because it is the first time the justices made public a vote on the case -- and two justices recused. That means that if the high court eventually grants review, only seven justices will participate, changing the dynamics of an already unpredictable case.
Chief Justice John Roberts Jr. and Samuel Alito Jr. indicated they took no part in the Court's action Monday. According to his latest financial disclosure form, Roberts owns stock in Time Warner, parent company of CNN, that was valued at between $100,001 and $500,000 as of May 15, 2008. According to his financial disclosure form, Alito owns less than $15,000 worth of stock in Disney, which is also a party in the case.
Which way will the absence of the two justices cut in this copyright infringement dispute? Hard to say, seems to be the consensus of lawyers knowledgeable about the litigation.
The suit began three years ago when television networks and film producers challenged plans by Cablevision to provide a new service to customers that would allow them to request copies of shows for later viewing from the cable company -- an extension of existing video-on-demand services called remote storage digital video recorders. The U.S. Court of Appeals for the 2nd Circuit held that neither Cablevision nor the home viewer would be guilty of a copyright violation. The appeals panel invoked Sony v. Universal City Studios, the 1984 Supreme Court decision that protected VCR makers from copyright infringement claims.
Neither Roberts nor Alito were on the Court when it decided the Sony case by a 5-4 vote. In fact, John Paul Stevens is the only current justice who was on the Court for the Sony case, and he wrote the majority opinion in favor of Sony and against copyright infringement claims.
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