In this digital age that we are now on the verge of, content producers are having to ensure their rights are protected. But do their arguments sometimes go too far?
Cablevision recently won a court case against content producers who had accused the company of breaking copyright laws by the use of a Tivo-like remote DVR.
We’ve already heard from Sherwin Siy how the appeal court’s decision was correct, and constituted a victory for home recording. Here, he discusses the wider implications related to buffering for all video streaming sites.
Why the Cablevision Decision Matters
In my post from Monday, I laid out a very
brief outline of some of the conclusions reached by the Second Circuit
in its Cablevision decision
on remote DVRs. Today, I want to take a step back and discuss why it
was so important for the development of digital media and technology.
Two theories espoused by the TV networks
in the case were extraordinarily dangerous for copyright law. The first
was that fleeting, transitory copies like buffer copies could make
someone liable for copyright infringement. The second was that the
provider of a product or service could be directly liable for
infringement when the actual copying was done by someone else entirely.
Buffer Copies
Rashmi’s talked
about
the buffer copy theory in relation to the Copyright Office’s
section
115 rulemaking, but I think it’s still worth mentioning the
basics: A
buffer copy is a copy that is made in the course of digital transfer.
It’s not intended to be directly viewed, accessed, or used by
anyone.
It’s just a step in the relay of information from one source
to
another.
Trying to count this as a “copy” in the
sense of copyright law
makes little sense. In the end, whether the process used to get a
streaming video from a server to my PC makes two or two thousand buffer
copies in the process, it doesn’t matter (for copyright
purposes—let’s
ignore system resources for now) to me, the sender, or the copyright
owner.
I get to see one video, the sender has sent one video, and the
copyright owner gets paid for one video. The means by which that video
got from point A to point B doesn’t and shouldn’t
matter.
Fair Use
That’s the practical argument, and one that can be
rooted in fair use—if
the buffer copies don’t have any effect on the market for the
work (one
of the four fair use factors), they’re not infringing, and
therefore
don’t need to be licensed.
But fair use wasn’t even a part of the consideration
in the Second
Circuit’s opinion. Before we even get to questions of fair
use, we need
to make sure that the “copy” created actually is
legally defined as a
copy under the law. There’s a very specific definition that
goes along
with that, in 17 U.S.C. § 101:
“Copies” are material objects, other than
phonorecords, in which a work
is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term
“copies”
includes the material object, other than a phonorecord, in which the
work is first fixed.
Don’t worry, this won’t be on the exam.
(Um, unless you’re taking a
copyright law course. Then it might be.) But note that to be a
“copy”
the work has to be “fixed” in a tangible
medium—just playing an
improvised song or giving an extemporaneous speech doesn’t
get you a
copyright. And to be “fixed,” a work has to meet
this definition:
A work is “fixed” in a tangible medium of
expression when its
embodiment in a copy or phonorecord…is sufficiently
permanent or stable
to permit it to be perceived, reproduced, or otherwise communicated for
a period of more than transitory duration…
Transitory Medium
So not only does the work have to be
“embodied,” it has to be “more
than transitory.” And buffer copies are exactly not that.
They’re
entirely transitory, and while over the course of time, all the data
associated with a copy might pass through the buffer and be copied or
transmitted out of the buffer, that data in that buffer is only there
for that short time, that “transitory
duration.”
So they’re thus not
copies, and thus can’t be infringements.
Necessary For Digital Media
The implications of this are extremely important. Since
digital
technology is based upon copying data, copyrighted material is going to
be reproduced (in a literal sense) all the time.
By viewing this post,
you’re making copies of it into RAM and likely onto a cache
on your
hard drive. Every time you view
a streaming video,
a “copy” is made of the video as it gets buffered.
This shouldn’t mean
that you’re on the hook for copying that video.
Nor should it mean that
YouTube needs two licenses for the video—one to stream it and
one to
offer it up as a download. Yet that’s exactly what the
plaintiffs in
the Cablevision case were alleging.
Outlawing Every Buffering Device
Though Cablevision had a
license to broadcast the shows, the studios were arguing that the fact
that those buffer copies were being made meant that Cablevision also
needed to license the right to make copies of the shows.
Extrapolate
from that, and every electronic device with a buffer (skip-free CD
players, anyone?) becomes a source of lawsuits, or in the case of
litigation-averse companies, a source of licensing revenue.
Conclusions
As more content goes digital, it becomes more mobile. The
trend
seems to be that we’re going to have more media available in
more forms
and on more devices.
That should be perfectly possible with current
technology, but copyright on that media can act as a barrier. The
limited monopoly can be used to bar time-shifting, space-shifting, or
remixing, either through the arbitrary short-sightedness of a content
owner, or in attempts to wring additional cash out of the content that
consumers have already paid for.
If the district court decision had
been upheld, the threat of infringement liability posed by anyone
making a buffer copy would provide a content owner with more leverage
to extract rents, even from established, paying distributors like
Cablevision—to say nothing of completely new players with new
services.
Sherwin Siy is an author at Public Knowledge discussing public rights in the emerging digital culture. Post has Some Rights Reserved.
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