White House Is Eclectic on Copyright By Mark Fleischmann June 4, 2009 — Where does the Obama administration stand on the consumer's right to record? Depends on the situation. On copyright issues, the White House is not predictable, but eclectic.

If the issue is time shifting, the Obama Justice Department is content to allow consumer-controlled devices to store content on a remote server. That's the issue at the heart of the Cablevision network DVR case, in which two courts, most recently a federal appeals court, have ruled in favor of Cablevision. Though the studios may take the case to the Supreme Court, the administration is urging the high court to let stand the existing rulings. That would enable the network DVR to make its debut as early as this summer (though it still wouldn't let you skip commercials!).

Meanwhile, friends of the beleaguered music industry are flooding into the Justice Department, which has hired five attorneys formerly associated with the Recording Industry Association of America, notorious for its now-ended campaign involving 30,000 lawsuits against consumers. Now that the RIAA has changed strategy from lawsuits to ISPs sending warnings, it may need the help of its alumni at the DOJ—ISP cooperation has been slow in coming.

Meanwhile there has also been speculation that Sonia Sotomayor, the Supreme Court nominee, may tilt in favor of copyright holders when awarding damages. This hinges on her decision in a 1988 case that saw a boxing promoter sue a bunch of bars for letting their patrons watch televised boxing matches without authorization. Sotomayor wrote that damages may exceed the actual loss for the sake of deterrence: "A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff.... Statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff." Such a position would endear the judge to the RIAA, which has sought damages from consumers far in excess of the sale price of illegally downloaded tracks.

See Wired stories on the Cablevision case, Sotomayor's copyright stance, and Sotomayor's other positions.