Yesterday, I noted that the buffer copy issue was just one of two major ideas coming out of the Cablevision decision that will have important and wide-ranging effects on the future of technology policy.
The other issue, which I'll call the “volitional issue,” wades into slightly more obscure legal ground, but its effects on law and on technology policy are just as, if not more important.
Like I mentioned in earlier posts, there were three alleged infringements in the case. Aside from the buffer copies, the studios claimed that (1) Cablevision made infringing copies of the shows each time a user told Cablevision's remote DVR to record a show; and (2) Cablevision was making an infringing public performance of the recorded show when the user told the system to play it back.
Notice that in both cases, we have two different parties participating in the potentially infringing activity (assuming away, for now, the fair use of the user's time-shifting): the user and Cablevision. How do we determine who is legally responsible for having made the copy?
What becomes important is who makes the specific decision to make the particular copy—whoever exercises the volition to make the copy bears the responsibility. For direct liability, what matters is that you are the one who wills that copy to be made, not just someone who facilitates its making. (Someone who only facilitates might still be liable for contributory liability, vicarious liability, or inducement, but those weren't alleged here.) Here, it seems clear that the user is the one who decides to make the copy—the user is the one exercising volition, pressing the button that makes the recording. The system set up by Cablevision just follows through, just like a VCR or non-networked DVR.
The studios, on the other hand, argued that the case of the remote DVR was like a series of cases where copy shops were making course packs for college courses, when those course packs infringed copyright. Although the copy shops argued that they were only following the instructions of the customers and thus were not the direct infringers, courts tended to find against them.
In differentiating the copy shop cases from the remote DVR (at least, for the purposes of the viewer copying—the public performance question was decided on different grounds), the Second Circuit noted a big difference: the owners and employees of a copy shop exercise volition—they make a conscious decision to create the copies. A copy shop that set out machines for self-use wouldn't be liable in the same way as those who took the copying in-house.
This reasoning clears up some of the questions that surround remote storage of media. On Monday's post, commenter Dean Collins noted that this case has implications for what he called the “cloudification” of media—the idea that media could be stored somewhere online, in the middle of the network (thus, in the “cloud” of the 'net), and accessible to someone anywhere and anywhen they had a networked device, be that a desktop, laptop, phone, networked music player, etc. Since this case cleared the way for the offsite storage of TV shows by a cable company, why not offsite storage of other media? In the Internet context, the safe harbor provisions of the DMCA do a decent job of ensuring that these services aren't unduly burdened by a duty to read everyone's data before storing it—the decision here helps to emphasize that this should be true of networks generally, and not a case of Internet exceptionalism.
This type of development is exactly the sort of thing I meant when I earlier made a vague reference to new technologies and new ways of doing business: the effects that the Cablevision decision has on remote media capabilities. Deciding who is legally responsible for information, and who is responsible when that information is copied, published, or moved, becomes incredibly important.
There's more to be said about determining who does the copying; but in terms of delivering media, there will also be questions and barriers arising out of the other rights granted to copyright holders: not just the right to reproduce, but the right to display, distribute, and publicly perform copyrighted works. I'll deal with this last right, and how it was dealt with in Cablevision, in another post.