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.
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.
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…
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.
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. 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.
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.
There's another issue dealt with in the case, one that we haven't talked as much about, but that will also have big copyright law implications in the future. This centers around the question of who makes the copy, and I'll post more about that tomorrow.