In hopes of convincing the Court of Appeals to reverse the Southern District of New York's decision in the Cablevision case, Public Knowledge has contributed and signed on to an amicus brief along with various other organizations and companies interested in maintaining some semblance of coherence in applying copyright law to digital works.
The core issue is whether Cablevision infringed upon the plaintiffs' copyrights by providing a remote DVR service that recorded the plaintiff's programs. Though the District Court tried to justify its decision by putting the technical components of the remote DVR under a microscope, the remote DVR is functionally equivalent to a TiVo or a good, old fashioned VCR. Each of those devices provide a mechanism for recording broadcasts that give the end user exclusive control over what shows to copy and watch in the privacy of her living room. For more information, look here.
This case is bizarre from several angles. First of all, Cablevision waived its fair use defense (for direct infringement). Stranger still, the plaintiffs decided to sue Cablevision on the grounds that Cablevision directly infringed (as opposed to suing them on the grounds that they are secondarily liable for their users infringing activities).
To be liable for direct infringement, a defendant must actually do the infringing activity–merely owning a device that copies material isn't sufficient. For example, a library that owns a photocopying machine can't be held liable for direct infringement if a patron reproduces copyrighted text.
A defendant can be secondarily liable for the infringing activities of their customers if the defendant knowingly and materially contributes to the infringing activity, or if the defendant has the right and ability to supervise the activity and benefits financially. For example, if a company made copies of textbooks so that students wouldn't have to buy the books, the company would be infringing.
In this instance, Cablevision merely provided the equipment, while the customers controlled what they recorded. When the defendant provides the means of copying without actually doing the copying, the case should be grounded in claims of secondary infringement.
The amicus brief points out that by making the strategic choice to sue Cablevision for direct, as opposed to secondary infringement, the plaintiffs attempted to undermine the “substantial non infringing uses” standard established in Sony. The Sony case established that when devices have “substantial non-infringing uses,” such as “time-shifting” (recording a broadcast and viewing it at a later time), the providers of such recording devices are not secondarily liable. Had the plaintiffs sued Cablevision under a theory of secondary liability, Cablevision almost certainly would have prevailed since remote DVR has “substantial non-infringing uses” that mirror the “time-shifting” in the Sony case–which makes the District Court's decision to hold them directly liable somewhat inexplicable.
The most troubling aspect of this case is the ramifications it could have on network-centric services. As the brief points out, remote services where information is stored in a central location and accessible to many are increasingly popular. Services like remote photoprinting, research systems like Lexis and Westlaw, or remote email access on a Blackberry could be called into question if the District Court's decision is woven into existing precedent. If the District Court's decision isn't overturned, any of those services could be liable for direct infringement, and shut down if a single user posted a single copyrighted work. Copyright law is based designed to provide an incentive to innovate. Opening the door for remote service providers to be liable for direct infringement will curb future innovations in the realm of networked services.
For more information about the case, and other amicus briefs, click here.