On the final day of its term, the U.S. Supreme Court declined to review an important copyright case involving the legality of “remote storage digital video recorder” (“RS-DVR”) systems. At issue in the case was whether Cablevision’s RS-DVR system directly infringed on the copyrights owned by plaintiff content providers, which included Hollywood studios and television networks such as Twentieth Century Fox, University City Studios, Paramount Pictures and Disney.
RS-DVR systems allow television viewers to record television programs and play them back later at their convenience. However, unlike stand-alone digital video recorder (“DVR”) systems like those offered by TiVo, the cable programming is stored on central hard drives housed and maintained by the cable operator, not stand-alone DVR devices owned by the consumer.
In declining to review the case, the high court left standing a decision by the Second Circuit Court of Appeals, Cartoon Network v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008), which had held that Cablevision’s RS-DVR service did not infringe on plaintiffs’ copyrights. In this case, plaintiffs advanced three reasons why the RS-DVR system directly infringed on their copyrights. First, plaintiffs claimed that their exclusive rights of reproduction under the Copyright Act were violated when the cable content stream was stored in Cablevision’s RS-DVR buffering system. Second, plaintiffs claimed that their exclusive rights of reproduction were violated when the buffered content was then copied onto Cablevision’s central hard disk system. Lastly, plaintiffs claimed that their exclusive rights of public performance were violated when the content was then transmitted from Cablevision’s central hard disk to the customer in response to a playback request.
The Court of Appeals rejected all three claims. The court framed plaintiffs’ first claim as whether, by buffering the data that make up a given work, Cablevision “reproduce[s]” that work “in copies” [under 17 U.S.C. § 106(1)], and thereby infringes the copyright holder’s reproduction right. As defined in the Copyright Act, “copies” are “material objects . . . in which a work is fixed by any method . . . and from which the work can be . . . reproduced.” 17 U.S.C. § 101. The Act also provides that a work is “fixed” in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration.” Id. Applying these definitions, the Court held that for a work to be “fixed” and thus copied, (1) the work must be “embodied” in that medium, i.e., placed in a medium such that it can be perceived, reproduced, etc. from that medium; and (2) it must be embodied in that medium “for a period of more than transitory duration.” Applying this test, the court then found that since the data remained in Cablevision’s buffer for a mere 1.2 seconds, the duration requirement was not met and thus the RS-DVR did not create “copies” as defined by the Copyright Act.
Regarding plaintiffs’ second claim, the court found that an important distinction between direct copyright infringement, the claim raised by plaintiffs, and contributory copyright infringement, a theory of liability which was expressly disavowed by plaintiffs, was some element of volition or causation. The court found that because it was the customer who directed that the copy be made, and not Cablevision, there should be no finding of direct infringement. Using an analogy, the court found that Cablevision’s case more closely resembled the situation of a copy shop proprietor who simply allows his customers to use the photocopier machines on his premises, as opposed to a copy shop proprietor who actually volitionally operates a photocopy machine to make copies for the customer.
Regarding plaintiffs’ last claim, the court addressed the question whether Cablevision “transmit[s] . . . a performance . . . of the work . . . to the public”, as these terms are defined in 17 U.S.C. § 106(4). In answering this question, the court found that the proper inquiry was the scope of the potential audience that was capable of receiving the particular transmission of a performance. In doing so, the court rejected plaintiffs’ claims that the proper audience to be considered should include the potential audience of the underlying work, in this case plaintiffs’ content. Applying this definition, the court found that the “performance” at issue was the transmission from the RS-DVR service and not plaintiffs’ original content. Because the audience for this content was limited to the subscriber who made the work, there was no transmission “to the public.”
Among other things, Cartoon Network v. CSC Holdings provides greater guidance into what constitutes direct copyright infringement in cyberspace as new methods of media delivery are developed, and how the law of copyright is adapting to meet these new technologies.
Allen M. Lee Mr. Lee’s practice focuses on business, corporate and intellectual property matters, including the creation, protection and exploitation of intellectual property assets. He counsels clients on business formation, general corporate matters, trademark, copyright, trade secret, patent, licensing, internet and domain name issues, among other things. For more information contact: Allen M. Lee, a Professional Law Corporation, Tel: (650) 254-0758, Fax: (650) 967-1851, Email: firstname.lastname@example.org, Internet: www.allenmlee.com.