Justice Department sides with Cablevision against Hollywood |...

The brief drew praise in tech circles, but Kagan took pains to emphasize how narrow the 2nd Circuit's ruling was. "The court of appeals announced no 'categorical exemption from direct liability' (Pet. 24) for providers of automated services and it did not 'assume[]' (Pet. 19 n.4) that only one person can 'make' a particular copy," she wrote. In other words, the administration's position is that the 2nd Circuit's decision doesn't provide a broad shield for Web 2.0 companies that want to replace home recording and playback devices with online services. Besides, as the brief notes, the appeals court didn't consider the possibility of contributory infringement because the studios and Cablevision agreed not to litigate those issues. (The parties agreed to take fair-use defenses off the table, too.)

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