There are times when dealing with the vital obscurities of telecommunications can verge on the metaphysical. This is one of those times when an issue, as important as it may be, seems more relevant to a philosophy class than to a discussion of regulation.

Here is the question: Can a single activity by a cable company be both good for consumers and bad for consumers at the same time? Answer: Do you have to ask?

Here is the setup: Cablevision, the New York City-area cable company wanted to provide its own version of a digital recorder. Instead of having a separate set-top box like a TiVo box, Cablevision wanted to offer a recording service. Customers would aim and click to record shows just as they would with a TiVo or other digital recorder box. Instead of the recording being made on a box sitting on top of your TV, the actual recording is sitting somewhere in a computer within a Cablevision complex, nice and comfy in its own little spot reserved just for your account.

To most people, that distinction might seem less than trivial. But not to Hollywood. Alert for any opportunity to file a copyright lawsuit, a batch of studios and programmers sued Cablevision for violations of the copyright law. They didn’t even wait for Cablevision to test the service, filing suit on the basis of a Cablevision announcement of a technical trial. The test never took place.

The case has two levels. First, the studios want to be paid for the “buffer copy” made of any recordings. In any computer, the bits of data are gathered together before being assembled into their final format – a picture, movie, song or document. The buffer is never seen by human eyes and exists for only a few seconds. Nevertheless, Hollywood has been on a tear, in this instance and others, to make sure they get paid for the buffer copy's very existence.

Second, this case is a frontal attack on the key case from 1984 (the famous “Betamax" case) which established the right of consumers to record material off the air with their VCRs while saying that manufacturers of VCRs (and later technologies) couldn’t be sued if the device was capable of other “substantial non-infringing uses.”

Remarkably, the federal judge hearing the case sided with Hollywood. He said the determining factor was that Cablevision was making the copy and not the consumer, because the show resided within Cablevision.

The ruling makes no sense. It’s now on appeal. A group of public-interest groups, including my day-job employer, Public Knowledge, filed a brief in support of Cablevision. We said that if the decision were allowed to stand, the whole concept of network-based services would go away, with consumers and innovators both harmed. We said there is no difference between a remote recording and one sitting on top of your TV. And we said that this case could wipe away the benefits of the Sony case. We’ll see how it goes. (The case is Cartoon Network v. CSC Holdings, No. 07-1480-cv.)

However, because this is cable, nothing is simple, and here’s where the metaphysics comes in. The fact that Cablevision wants to offer a recording service is fine, as far as it goes. But at the same time that the service might be a benefit to consumers, it also serves to extend the cable industry’s control over what is essentially a closed cable network in which the cable operator, and only the cable operator, decides what services will be offered and on what terms.

That control is a separate issue being fought out at the Federal Communications Commission (FCC), a remnant of the 1996 Telecommunications Act. Back then, Congress said that cable had to provide consumers the right to buy their own cable navigation devices – boxes and remotes. The law was never enforced by the FCC, which kept giving cable companies waivers.

Now, FCC Chairman Kevin Martin is pushing for cable to open up its network, and has stopped granting some of those very convenient waivers. However, a whole generation of services has developed and been exploited by cable without any participation by outside consumer electronics manufacturers. A new generation of technology, enabling two-way services, is starting to be rolled out. At the moment, those will be governed by cable’s new, proprietary standard developed by its own proprietary CableLabs operation that is designed solely to limit third-party manufacturers from offering services without first getting the permission of the cable company while limiting the features an outside company can offer.

Several public interest groups are urging the FCC to look into opening the cable box for competition. That way, not only will Cablevision be offer new services to subscribers, but others could as well, and another pesky metaphysical issue will vanish.