Cablevision – is that it?

On Friday the Obama administration declared its stance on the following copyright question: if you press your TV’s remote to record a programme and it’s recorded at your cable company’s servers, could the cable company be infringing copyright?

In 2006 Cablevision, a US cable TV company, announced plans to launch a ‘remote-storage digital video recorder’ (RS-DVR) service. Customers, instead of downloading a TV programme through a set-top box and storing a copy there, would copy and store programmes on Cablevision’s hard drives at a central remote server. Cablevision was sued for copyright infringement by CNN and Cartoon Network, joined by Twentieth-Century Fox, Universal, Paramount, Disney, CBS, ABC and NBC.

In 2007, a district court held that Cablevision was infringing the content providers’ copyrights in three ways: (1) before the customer makes any choices, all programming is saved in ‘buffers’, albeit in sections not longer than 1.2 seconds that are constantly being overwritten; (2) when a customer records a programme, the copies are made by Cablevision; (3) in transmitting the copies to customers, Cablevision is infringing the content owners’ right to perform.

In August 2008 this decision was reversed by the court of appeals, Second Circuit (judgment here), saying: (1) the buffering would not create copies as defined by the Copyright Act as they were not fixed for long enough; (2) the RS-DVR functions like a VCR: the customer would be selecting what to copy, so was liable for making the permanent copies; (3) no ‘public’ performance occurs because each transmission is made to a single subscriber using a single unique copy produced by that subscriber.

In October 2008, the content providers appealed to the Supreme Court and in January 2009 the Supreme Court invited the Solicitor General, Elena Kegan, to express the views of the United States. On Friday (29 May) Kagan delivered her brief (here), which recommends that the Supreme Court should not review the Second Circuit's ruling. The Supreme Court doesn't always follow the Solicitor General's advice, but it is often persuaded by it.

Kagan said that the copyright issues were potentially significant but this case isn’t the place to address them because: (1) the Second Circuit decision was the first on such a case, so (a) the decision didn’t conflict with any other Supreme Court or appeals court decision and (b) the Supreme Court would be in a better position to assess the legal issues when similar cases had come before appeals courts; (2) Plaintiffs had not raised contributory infringement and defendants had not raised a fair-use defence. It would not be possible to clarify the proper application of copyright without considering them; (3) the RS-DVR is equivalent to a VCR or set-top DVR, rather than a video-on-demand service. The customer is using Cablevision’s service just like a self-service photocopying shop.

These reasons seem an unsatisfactory way to sign off this case. The analogy of the RS-DVR to a VCR or photocopying shop is debatable and deserves thorough re-examination. Think of a photocopying shop set up solely to copy works against copyright owners’ wishes. You don’t go in and put the book you want on a machine but contact the shop to request a copy. There are people there running the machines that make the offending article...


Other opinions: John Palfrey, Harvard Law School. Mike Masnick, Techdirt.