Second Circuit: Cablevision DVR Does Not Directly Infringe Copyright
By Stephanie Weiner — Edited by Andrew Ungberg
On August 4, the Second Circuit reversed the District Court for the Southern District of New York, ruling that Cablevision’s “Remote Storage” Digital Video Recorder system (RS-DVR) does not infringe the copyrights of the various broadcast and cable channels that produce or provide individual programs.
First presented by Cablevision in March 2006, the RS-DVR allows customers who do not have a stand-alone DVR device to record cable programming on central hard drives housed and maintained by Cablevision at a remote location.
RS-DVR customers may then receive playback of those programs through their home television sets using a remote control and a standard cable box equipped with the appropriate software. This is different from a traditional DVR in that instead of sending signals from the remote to an on-set box, the viewer sends signals from the remote, through the cable, to a server at Cablevision’s central facility.
The plaintiffs, several networks and studios that hold the copyrights to numerous movies and television programs, sought declaratory and injunctive relief. They claimed that Cablevision’s operation of the RS-DVR would directly infringe their exclusive rights to both reproduce and publicly perform their copyrighted works. The District Court for the Southern District of New York awarded the plaintiffs summary judgment, and enjoined Cablevision from operating the RS-DVR without licenses from its content providers. On appeal, the Second Circuit reversed and remanded.
ipFrontline carries a thorough summary of the case, including a technical breakdown of Cablevision’s RS-DVR system.
Law.com also provides coverage.
Eric Goldman suggests that the opinion leaves open more questions than it resolves.
The Second Circuit reasoned that two exclusive rights provided to copyright owners by Section 106 of the Copyright Act were implicated in this case: the right “to reproduce the copyrighted work in copies,” and the right “to perform the copyrighted work publicly.” 17 U.S.C. § 106(1), 106(4). Writing for the court, Circuit Judge Walker found that Cablevision does not infringe the first right by buffering the data from its programming stream or by copying content onto server hard disks to enable playback of a requested program. The buffering, the court held, does not amount to “reproduc[ing]” the buffered work “in copies” as required for a violation of § 106(1), because the copyrighted works are only embodied in the buffer for a “transitory duration” (1.2 seconds). With respect to the copying, the court found that it is the customer, not Cablevision, that supplies the necessary element of volition in actually making the infringing copy, since it is the customer who presses the button to make the recording. The court suggested that Cablevision’s role might subject it to contributory infringement liability, but the plaintiffs had only alleged claims based on direct infringement.
The court further held that Cablevision does not engage in unauthorized public performances of the plaintiffs’ works through the playback of the RS-DVR copies, and thus is not in violation of § 106(4). This was because the RS-DVR playback does not involve the transmission of a performance “to the public.” Rather, the court found, each RS-DVR transmission is made to one subscriber using a unique copy produced by that subscriber, and that subscriber is the only person capable of receiving that transmission. Since the potential audience for any transmitted work is so limited, no transmission is made “to the public.” The court held that Cablevision was entitled to summary judgment on this point. The court emphasized, however, that Cablevision and other content delivery networks may still be open to other types of copyright liability, such as liability for unauthorized reproductions or liability for contributory infringement.
The Second Circuit’s decision raises several interesting issues, one of which is whether the court’s analysis conflicts with established case law regarding computer memory. For example, in MAI Systems Corp. v. Peak Computer Inc., the Ninth Circuit held that despite the fact RAM is cleared when a computer is powered off, copies of works written to RAM are sufficiently “fixed” and may violate the Copyright Act. 991 F.2d 511 (9th Cir. 1993). Buffers are a form of temporary RAM, which might suggest MAI Systems reasoning would apply; however the Second Circuit chose to distinguish buffers from RAM in general on the basis of the brief time during which the copied work exists. Prior to this case, no court has expressly considered works passing through buffer memory only.