The Cablevision DVR ruling

At issue was whether Cablevision, the cable TV provider in Long Island, could put what amounted to a massive rack of digital video recorders in its central office, rather than sticking them into the set-top boxes in people's homes. The recorders would be operated by customers using their TV remote controls, with a limited amount of storage area dedicated to each household. If multiple people decided to record the same program, a separate copy would be made for each of them. In short, the service operated just as a TiVo would, except that the hard drive was located outside the home.

The problem for Cablevision is that, technically speaking, its machines were making copies of TV programs without the copyright holders' permission. Naturally, Hollywood sued. In March 2007, U.S. District Judge Denny Chin ruled that Cablevision had violated a number of TV programmers' copyrights in three ways: by duplicating the bits transmitted by those programmers in a digital buffer, copying them into the customers' storage areas, and playing them back at the customers' request (which amounted to a public performance, Chin declared). Chin immersed himself deeply into the technical weeds, explaining in detail how Cablevision's system worked. But he seemed to lose sight of the big picture, which is that the system was no different functionally than a VCR. The only real difference was that the recorder was a service, not a product.

The 2nd Circuit, by contrast, dug deeply into the meaning of the 1976 act in light of technologies that automate copying and playback, and that rely on partial and ephemeral copies to function. It dismissed the finding that Cablevision's buffer made unauthorized reproductions, noting that the buffer saved programs 1.2 seconds at a time, with each new segment overwriting the last one. Nor did Cablevision violate copyrights by saving full programs in users' dedicated storage spaces, the panel decided, because the copying was really being done by the users -- Cablevision's "RS-DVR" machines were merely obeying the customers' electronic orders.

In the case of a VCR, it seems clear -- and we know of no case holding otherwise -- that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine. We do not believe that a RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer's command.

The key here, the court said, is that the Cablevision system is automated. It's like a photocopy shop that lets users make their own copies, rather than Xeroxing books at their request. Finally, the panel ruled that playing back recordings didn't amount to publicly performing a work. Although the service was available to the public, each recording could be seen only by one household.

Because each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, we conclude that such transmissions are not performances "to the public" and therefore do not infringe any exclusive right of public performance.

The court took pains to say that its stance would not necessarily absolve companies from other types of liability -- for example, contributory infringement. But as the Supreme Court made clear in the landmark Sony Betamax case, time-shifted TV programs aren't infringements. So there's no contributory liability for aiding time-shifted TV. That's why the plaintiffs in the case accused Cablevision only of direct infringement.

Recording services that aren't limited to time-shifted TV wouldn't be able to rely on the Betamax ruling. But the 2nd Circuit's decision seems to give the green light to more remote, digital recording systems, provided that they enable only authorized or fair uses of copyrighted material. And I'd be surprised if Hollywood lets this one go without an appeal.

2003 AP photo of Cablevision CEO James Dolan is by photographer Gregory Bull.