I’m currently working on an amicus in the Cablevision Network DVR case, with the enormously talented Henry Lanman.
The argument is for reversal. And the brief says, roughly, that -
1. The district court’s decision creates an end-run around Sony & Grokster; and
2. It creates regulatory asymmetry, by picking a “winner” as between “Network-based” and “Device” DVR.
The waiver of secondary liability really throws a wrench into this case; my basic argument is that the second circuit should take that waiver seriously, instead of throwing elements of principal-agent analysis into direct liability.
