Does the use of off-site DVRs, which work like a TiVo, infringe the copyrights of content providers such as American TV networks? A federal appeals court thinks not.
Here, Sherwin Siy of Public Knowledge discusses the case, the positive decision, and how the result is a victory for digital technologies and common sense.
Victory for Home Recording in Cablevision Remote DVR Case
On August 4, a federal appeals court ruled that Cablevision’s
remote DVRs – which
worked like off-site TiVos – didn’t
infringe copyright. The decision, which overturns an earlier district
court opinion, stated that there was no significant legal difference
between the remote DVRs and a VCR. An all-too-brief summary of the
history and findings follows.
The original case arose out of Cablevision’s
creation and marketing
of the “RS-DVR,” a service that, like a TiVo, let
cable subscribers
select different TV shows to be recorded digitally onto a hard drive.
Unlike a TiVo, however, the hard drives of the RS-DVR are stored on
Cablevision property.
Content Companies Arguments
The difference between these configurations led
to arguments by content companies that Cablevision was infringing the
copyrights in their TV shows. Three particular acts were singled out:
- First, as Cablevision received a signal from the content
companies, it created a buffer copy of about .1 seconds of the show as
the system checked to see if a customer had decided to record the show.
Plaintiffs argued this was an infringing reproduction. - Second, if a customer had picked a show to be recorded,
the
stream of data representing that show would be copied from the buffer
onto a server for that customer to view later. Plaintiffs argued that
this recording was another infringing reproduction. - Third, when a customer decided to watch the show they had
recorded, the show would be transmitted from the remote server for
viewing in the customer’s home. Plaintiffs argued that this
violated
their “public performance” right in a show.
Support For Cablevision
Last year, Public Knowledge joined a coalition of public
interest, consumer, and industry groups in filing an amicus brief
in support of Cablevision’s position, arguing that since the
recorded
copies are made and transmitted at the direction of the customer, that
Cablevision was not the one “doing” the copying and
public performing
of the shows, and therefore could not be infringing.
The brief also
noted that playing back a recorded show over the RS-DVR
wasn’t a public performance, which
meant that it wasn’t an infringement. Another amicus brief,
filed on behalf of a group of copyright law professors, had argued that
temporary buffer copies shouldn’t be considered infringing.
To our great relief, the appeals court mostly agreed with
these arguments.
First Buffer Copy
On the issue of the first buffer copy, the court held that
buffer
copies weren’t infringements because they were too fleeting
to be
considered “fixed,” a requirement before something
is considered a
“copy” that can infringe (or otherwise implicate) a
copyright.
Although
the entirety of a show would pass through the buffer bit by bit (and
thus be “embodied” within it), a fixation needs to
be more than just an
embodiment—it also needs to be more than
“transitory.”
The court
decided that this tenth-of-a-second buffer was too transitory to meet
the statutory definition of a fixation, and therefore
couldn’t be an
infringement.
Stored Copies Of Shows
On the second question of the stored, recorded copies of the
shows,
the court made a couple of important distinctions. First, it noted that
the plaintiffs were alleging direct infringement—i.e., that
Cablevision
was itself making infringing copies, not secondary
liability—which was
what Sony was accused of when it was making VCRs, or what Grokster was
accused of doing for file-sharers.
The court then noted that in a case
alleging direct infringement, it’s important to see who is
performing
the action alleged to be infringing. Since here, the individual user
makes the decision whether or not the copy is created, they are the
ones making the copy, not Cablevision.
Just as a VCR owner (as opposed
to a VCR manufacturer) pressing REC on a box makes a copy, so too is
the individual customer (and not Cablevision) the one making the
recording here.
Public Performance
On the third question of the public performance, the court,
interestingly, didn’t rule on who was
“doing” the performance, instead
relying entirely on the question of whether or not the transmission was
a “public performance” in the first place. In order
to be considered a
performance “to the public,” a transmission has to
be able to be
received by different members of the public, whether at the same time
or at different times.
Plaintiffs argued that since the same show that
was transmitted in realtime (with a license) by Cablevision, and could
also be viewed later by any customer who recorded it, that Cablevision
was making a public performance with those later
transmissions.
Difference Between Transmissions
However, the appeals court stated that these later
transmissions
existed separately from the earlier, licensed transmission. In other
words, in determining whether or not you have a public performance, the
court held that you need to look at whether or not you are passing the
same transmission to multiple people; not the
same work.
Although it might be the same episode of
“House” broadcast at its scheduled time and later
shown to me on my RS-DVR, the transmissions
are separate; originating from different signals, and aimed at
different audiences: the first is a public transmission, sent by
Cablevision to all their subscribers; the second is, well, a private
transmission, sent only to me.
Common Sense Prevails
After all, as the court points out, if
transmitting a work that had been previously transmitted to the public
was always going to be a “public performance” of
the work, than I could
be infringing the public performance right by recording a TV show in my
living room and then later playing it in my bedroom.
The appeals court’s decision, and its discussion of
the merits of
the various arguments, goes into far more detail than I can provide in
this brief report. However, the upshot of the decision is not only a
victory for user rights, home recording, and new digital
technologies—it’s a victory for common sense.
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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