The U. S. Court of Appeals for the Second Circuit vacated an injunction and reversed an award of summary judgment of copyright infringement based on Cablevision's providing its cable customers a new Remote Storage Digital Video Recorder (RS-DVR) service. In a decision limited to the question of direct infringement only the Court held that Cablevision's RS-DVR system did not violate the copyright holders' rights of reproduction and public performance. The Cartoon Network v. CSC Holdings, Inc. and Cablevision Systems Corp., 2008 U.S. App. LEXIS 16458 (2nd Cir., August 4, 2008) (Walker, J.).
Cablevision's RS-DVR system works similarly to existing video recording systems, except that instead of recording a program to a video cassette or disc, the RS-DVR records programming to a remote Cablevision hard drive. Once customers select programs for copying, the RS-DVR system logs these requests and, when the programming is normally sent to the customer, the system splits the programming data into two data streams. One data stream is transmitted directly to the customer and the second is stored temporarily in a buffer. This second data stream is then stored for later viewing by the customer only if a prior request was made.
Copies, as defined by the Copyright Act, "are material objects ... in which a work is fixed by any method ... and from which the work can be ... reproduced." The Act provides that a work is fixed when it "is sufficiently permanent or stable to permit it to be ... reproduced ... for a period of more than transitory duration." The court held that the storage of the buffered program data for 1.2 seconds does not meet the "more than transitory duration" requirement and thus does not create "copies" as defined by the Act. In doing so, the court distinguished the Ninth Circuit's MAI Systems v. Peak Computer decision, noting that buffering data may, but does not necessarily, result in copying. Analogizing Cablevision to a vendor that makes photocopiers available to the public, the court further held that Cablevision was not directly liable for the creation of playback copies from the buffered data because the copies are made only by the RS-DVR customer.
In considering whether Cablevision's transmission of the recorded programming violated the content providers' exclusive right to "perform the copyrighted work publicly," the court held that the RS-DVR playback was not a performance "to the public" because each RS-DVR transmission is made to a single customer using a copy made by that customer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
