In a 22-page brief whose lead author is Solicitor General Elena Kagan, DoJ argues that none of the the Second Circuit's "specific holdings in this case conflicts with any holding of this Court or another court of appeals," and thus the chief justification for a Supreme Court hearing -- a circuit split -- is not present:
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 brief also notes that the parties' agreement to take both indirect liability and fair use off the table "distorts the questions that remain and would prevent the Court from seeing whole the fundamental controversy in this case," making it an "unsuitable vehicle for clarifying the applicable legal framework."
On the merits, the brief gives a somewhat tepid endorsement of the Second Circuit's opinion, which reversed the district court's grant of summary judgment in favor of the copyright owner plaintiffs. It describes the court of appeals' decision as "reasonable" and "narrow." And it criticizes the Second Circuit's analysis of the plaintiffs' public performance claim as "problematic":
Some language in the court of appeals’ opinion could be read to suggest that a performance is not made available “to the public” unless more than one person is capable of receiving a particular transmission. See, e.g., Pet. App. 36a (“under the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is ‘to the public.’ ”); id. at 41a (“we find that the transmit clause directs us to identify the potential audience of a given transmission”). Such a construction could threaten to undermine copyright protection in circumstances far beyond those presented here, including with respect to VOD services or situations in which a party streams copyrighted material on an individualized basis over the Internet.Of course, DoJ does not get the last word; its brief is only a recommendation, which the Supreme Court is under no obligation to follow. That said, the Court does accord considerable respect to the solicitor general's opinions, and the chances of cert. being granted -- a long-shot in any case -- just dropped dramatically.
One last thing: the brief notes, "The Assistant Attorney General is recused in this case." I believe this is a reference to Tony West, the AAG in charge of the Civil Division. West is a former partner and Morrison & Foerster who in the 90s worked at Main Justice and as an AUSA in San Francisco. I don't know why his recusal was required here.
UPDATE: Mary Jacoby of Main Justice got to the bottom of West's recusal:
Justice Department spokesman Charles Miller confirmed that West is the official who recused himself. West is a former partner at Morrison & Foerster, which represented The National Music Publishers’ Association. The music publishing group filed an amicus brief in support of review, Miller said. He added that West wasn’t involved in the litigation.Disclosure: I worked on the Cablevision case when I was an attorney at Fox.
(h/t LA Times Technology Blog)