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. 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.
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.
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.
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.
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. 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. 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.