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August 6, 2008

Cablevision Wins Appeal on Remote DVR Service

Does it make a difference when someone records a television broadcast for personal use that the recorder happens to be in cable company's tech center rather than the living room?  The Second Circuit said no, reversing a District Court's ruling to the contrary.  Cablevision decided to offer DVR services remotely to customers.  There are a lot of advantages to this model.  Cablevision could upgrade the equipment without disrupting services, and customers with older set top boxes could take advantage of DVR capabilities without acquiring new equipment.  There was just one problem:  content owners thought that offering DVR services remotely violated their copyrights.  Programs sent to the Cablevision servers passed through a buffer (albeit at about a second or less before being overwritten by the next packet) and, allegedly, that constituted an unauthorized copy.  The replay allegedly was an unauthorized public performance.

From the Court's opinion:

In the district court, plaintiffs successfully argued that Cablevision’s proposed system would directly infringe their copyrights in three ways. First, by briefly storing data in the primary ingest buffer and other data buffers integral to the function of the RS-DVR, Cablevision would make copies of protected works and thereby directly infringe plaintiffs’ exclusive right of reproduction under the Copyright Act. Second, by copying programs onto the Arroyo Server hard disks (the “playback copies”), Cablevision would again directly infringe the reproduction right. And third, by transmitting the data from the Arroyo Server hard disks to its RS-DVR customers in response to a “playback” request, Cablevision would directly infringe plaintiffs’ exclusive right of public performance.

The Second Circuit addressed each of these.  As to the buffer issue, the Court rejected the notion that the buffer content represented fixed media for a period of more than transitory duration as stated in §101 of the Copyright Act.  The Court noted that the District Court relied on precedent that had not considered the duration element of §101.  The Court also rejected the United States Copyright Office’s 2001 report on the Digital Millennium Copyright Act which it said essentially wrote the duration requirement out of the statute in its interpretation.  "Accordingly, the acts of buffering in the operation of the RS-DVR do not create copies, as the Copyright Act defines that term."

The Court reasoned that Cablevision could not be a direct infringer when unique copies of programs were recorded at a customer's request merely by making the system available.  That fact may be relevant in an action for contributory infringement, which was not argued by either party.  The District Court likened the actions by Cablevision to a copy shop that makes course packs for faculty.  The Appeals Court said the analogy was more like a store proprietor who gave unfettered access to a copy machine within the store.  On this issue the Court found that copies were made by the customer and that did not warrant imposing liability on Cablevision.

The Court also concluded that as the recordings were unique per customer, and could only be played back by that customer on his or her own equipment, these replays did not constitute an unauthorized performance "to the public."

The opinion is Cartoon Network LP, et al. v. CSC Holdings v. CSC Holdings, Inc. and Cablevision Systems Corporation, 07-1480-cv(L) & 07-1511-cv(CON), August 4, 2008.

August 6, 2008 | Permalink

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