Yesterday I wrote, "I don't plan to blog in any detail about the Cablevision case, since I worked on it in the S.D.N.Y. and Second Circuit as an attorney at Fox." I should have been a bit more precise: I don't plan to blog on the merits of the case, and I won't discuss anything beyond pointing out facts in the public record. But I can't help but pipe up to correct an error-filled report on the case from CNET News.
CNET's piece is headlined "Supreme Court declines to hear cable DVR case," and its lede states, "The Supreme Court has declined to hear what could be a watershed copyright case...." Wrong. The Supreme Court did not say one way or the other whether it would hear the case. Rather, it simply said (see bottom of page 2), "The Solicitor General is invited to file a brief in this case expressing the views of the United States." As the LA Times accurately reported, "The court's move will delay for months a final decision on the issue. Lawyers for the new Obama administration will be called to examine the legal question and then advise the court on their conclusion." In other words, the Supreme Court did not decline to hear the case; it merely asked the Department of Justice for its views on whether it should hear the case. Big difference.
CNET then says, "Cablevision started testing its new remote storage-digital video recorder service called Mystro TV in 2003. And the TV networks and Hollywood film studios sued the cable operator in New York, seeking to block the service." Huh? The earlier story to which the new story links says in black and white that Mystro TV was a project of "AOL Time Warner" -- there's no mention of Cablevision. Other news stories confirm that Mystro TV was AOL Time Warner's baby: see here and here and here. According to Interactive TV Today, Time Warner "eventually abandoned Mystro TV after it ran into problems securing rights for content that would be stored on the service." Indeed two Time Warner entities -- CNN and Cartoon Network -- are plaintiffs in the case against Cablevision.
CNET says, "In 2007, a U.S. District Court in New York barred Cablevision from launching the service after the cable operator lost its initial suit." (my emphasis). Wrong, or, at best, misleading. CNET's statement implies there was an "initial suit" and then a subsequent suit. But there was just one suit; plaintiffs won in the district court, lost in the Second Circuit, and are now trying to get the Supreme Court to hear the case. (To get hypertechnical, there were originally 2 cases, brought by 2 separate sets of media company plaintiffs, but the cases have been treated as one since early in the litigation. But it's clear that's not what CNET was referring to.)
Lastly, CNET says, "For now the Supreme Court has sent the case to the Justice Department to consider. But the solicitor general at the Justice Department still has the option to toss the case back to the Supreme Court." This is a bizarre way of describing the process. The Supreme Court didn't "sen[d]" the case to DOJ; it just asked DOJ's opinion on whether the Court should hear it. And DOJ can't "toss the case back to the Supreme Court" -- it can: 1) recommend that the Court hear it; 2) recommend that the Court not hear it; or, I suppose, 3) something in between. There will, however, be no "tossing," for DOJ won't have the case to toss.
As I said when I previously wrote on a botched CNET story (by the same reporter), "It's a hassle, but non-lawyers reporting on obscure legal maneuverings should really check the accuracy of their stories with attorneys before filing them." More than ever.
UPDATE: C&C gets results! Sort of. CNET has now corrected one of the numerous errors in the story: the misidentification of Cablevision's proposed service as Mystro TV: "Correction at 8:40 a.m. PST on Thursday: An earlier version of this story misidentified a service called Mystro TV. That service was tested by Time Warner Cable." But the story still contains the even more significant errors, including the blatantly false headline and lede stating that the Supreme Court "declined to hear" the Cablevision case.