Cablevision wins on appeal: remote DVR lawful after all

By John Timmer

Does it matter where a DVR's hard drive lives? Hardware from outfits such as TiVo records shows onto a local disk, but the cable provider Cablevision decided to dispense with dedicated hardware and a local drive, and instead it rolled out a service where users could record shows through their existing cable box; those recordings stayed on a remote server in the central office for storage and playback. Content providers sued, alleging copyright violations, and they won a landmark injunction that blocked deployment of the system. But Cablevision appealed, and has now won a sweeping victory that may clear the way for the company to deploy its remote DVR service after all.

The initial case was filed by film studios and TV channels, and it alleges that the Cablevision service violates their copyrighted works in three ways:

1. The process of recording creates a temporary buffer that contains pieces of every copyrighted work that Cablevision broadcasts
2. The individuals that subscribe to the service store copies of copyrighted material on servers controlled by Cablevision
3. The process of streaming a work from this storage to a home constitutes an unauthorized public performance

The claims resulted in a summary judgment and an injunction that prevented Cablevision from deploying the system.

A 1.2s buffer: not infringement

It's hard to imaging a more sweeping reversal than the one in a decision (PDF) handed down today by a three judge panel of the Second Circuit's Court of Appeals. The summary judgments on all counts are reversed, leaving Cablevision the victor, and the injunction against deployment of its remote DVR service has been lifted.

The new ruling includes an extensive examination of the technical details of the DVR system, and those details were used to throw out the claims regarding the buffering system. Data in the two buffers at issue typically constitutes 0.1 and 1.2 seconds-worth of content, and the initial decision ruled (apparently correctly) that this was an "embodiment" of the copyrighted work. The relevant statute, however, also specifies that this copy has to be embodied "for a period of more than transitory duration."

On this count, the buffers failed to infringe, leading to a reversal of the ruling.

Who owns the copies?

There's little doubt that the copies that end up in the users' storage space are copyrighted material, but the question here revolves around who "owns" that copy. The court notes that the hardware is provided by Cablevision but used by others to make the copies, and it says that "mere ownership" of the hardware does not establish liability.

Because those copies are made at the direction of the users, and have to be arranged in advance of Cablevision's broadcasts, the court held that these copies were essentially controlled by the user. "We are not inclined to say that Cablevision, rather than the user, 'does' the copying produced by the RS-DVR system," the court decided.

The decision suggests that the remote DVR system might constitute contributory infringement, since it is designed to specifically produce copies of copyrighted works. Unfortunately for the content owners, all of their allegations focused on direct infringement.

Public performance

The final point at issue was whether playing the stored file constituted an unauthorized public performance of it. The Appeals Court focused on the transmit clause of the Copyright Act, writing, "Although the transmit clause is not a model of clarity, we believe that when Congress speaks of transmitting a performance to the public, it refers to the performance created by the act of transmission."

Since that transmission is destined for the viewer who recorded it in the first place, it doesn't run afoul of the rules governing public performances.

The ruling appears to sweep away any barriers to Cablevision (or anyone else) deploying a remote DVR. Any further legal action appears destined to focus on the question of whether this sort of service is infringement-enabling, but the issues there are likely to be murky enough that wholesale injunctions against deployment won't be forthcoming.

In general, the service appears to be very consumer-friendly. Cablevision plans to charge less than the going rate for DVR box rentals, and its centralized processing and storage are likely to be more resource- and energy-efficient than distributing thousands of set-top boxes. The centralized nature of the system should also make capacity and software updates better. With all these positives, and no practical differences between the functionality of remote and local DVR services, it would be unfortunate if legal technicalities stifled the potential for this technology.

Original here