[blindlaw] More on Cable Case

Wed Apr 1 20:44:01 UTC 2009

Here’s an article with more up-to-date information. SCOTUS may hear this
case this fall. 

http://www.arentfox.com/publications/index.cfm?fa=legalUpdateDisp
<http://www.arentfox.com/publications/index.cfm?fa=legalUpdateDisp&content_i
d=1928> &content_id=1928

le

2/2/2009

On January 12, 2009, the Supreme Court of the United States asked the
Department of Justice to weigh in on a case that will decide whether a new
digital home recording technology violates US copyright laws. The case is
Cable News Network, Inc., et al. v. CSC Holdings, Inc., et al. (No. 08-448),
in which CNN and other content providers sued New York-area cable provider
Cablevision and its subsidiary, claiming that Cablevision’s next-generation
“Remote Storage-Digital Video Recorder” (RS-DVR) service violates the
copyrights of the TV networks and film studios. The outcome of this case
could change the future of home video recording, and may help define key
concepts in copyright law as applied to the digital age. 

Cablevision’s new RS-DVR service would offer customers a new, less expensive
way to record television broadcasts for later viewing. Instead of
downloading a TV program through a set-top box and storing that copy in the
consumer’s own computer memory, the RS-DVR copies TV programs and stores
them on Cablevision’s hard drives at a central remote server. Customers then
can retrieve their own unique copies of recorded programming from the remote
server. Cablevision is promoting this new technology as a cheaper home
recording alternative because it does not require the installation of
expensive individual set-top DVR boxes in customers’ homes. The media
industry worries, however, that if this cheaper RS-DVR service becomes
readily available, more consumers will use the technology to skip past
commercials, potentially leading to a further decrease in advertising
revenues for the industry. While CNN and other content providers currently
license TV programs to Cablevision, they have not licensed Cablevision to
store and re-transmit those programs to users via RS-DVR. 

The suit arose in 2006, when CNN and other copyright owners sued Cablevision
in the US District Court for the Southern District of New York, alleging
that Cablevision directly infringes copyrights owned by the TV networks and
film studios because the RS-DVR itself copies and then “performs” the
copyrighted works without Cablevision’s paying additional licensing fees.
Cablevision, by contrast, argues that it is not a direct infringer because
it is the consumer, and not Cablevision, who orders copies of and then calls
up the protected works for time-shifting. 

The central legal questions, and the points on which the district court and
US Court of Appeals for the Second Circuit disagreed, were: Who is doing the
copying, and does transmission of the TV programs constitute a “public”
performance? The content providers argue, and the district court held in
2007, that Cablevision was doing the copying, once by making unauthorized
temporary “buffer” copies of all shows, and a second time by making
permanent copies on its central computer to stream to customers who request
those shows. Twentieth Century Fox Film Corp. v. Cablevision Systems Corp.,
478 F.Supp.2d 607 (SDNY 2007). The district court further held that the
RS-DVR infringes the public performance right by then transmitting those
copies to consumers’ televisions upon demand, thereby making copyrighted
works available to the public (even though members of the public may receive
the transmissions at separate places at separate times) without the
additional required licenses.  In light of all that Cablevision does to
design and operate the RS-DVR service, maintain exclusive physical control
of and access to the central server, and supply the copyrighted content, the
district court found that Cablevision, and not end-users, was responsible
for the illegal copying and public performances.  Accordingly, the district
court enjoined Cablevision from proceeding with its RS-DVR service without
obtaining the proper licenses.  

The Second Circuit reversed in August 2008, holding that customers, not
Cablevision, do the copying, and that Cablevision therefore cannot be a
direct infringer. The Cartoon Network LP, LLLP v. CSC Holdings Inc., 536
F.3d 121 (2d Cir. 2008).  According to Cablevision and the appeals court,
the temporary “buffer” copies initially created, which exist for only 1.2
seconds before they are overwritten by new data, are not “sufficiently
permanent or stable to permit [the work] to be perceived, reproduced, or
otherwise communicated for a period of more than transitory duration” and
thus do not qualify as “fixed” copies under the Copyright Act.  See 17
U.S.C. § 101. Regarding the permanent copies made, the Second Circuit found
that the end-user, not Cablevision, decides what programs will be copied and
transmitted for later viewing.  The RS-DVR merely automatically reacts to
customers’ orders, the court found, and thus plays no volitional role in
direct copying.  According to the court, Cablevision would at most be
secondarily liable for infringement, but the plaintiffs did not raise the
issue of contributory liability.  Essentially, the court likened the RS-DVR
to a user pushing the “record” button on a VCR, which the Supreme Court held
in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417
(1984), constitutes legal consumer time-shifting and is non-infringing fair
use.  Finally, on the question of whether the RS-DVR violates the copyright
owners’ public performance right, the Second Circuit found that no “public”
performance occurs because a copy saved by an individual subscriber can only
be accessed by that single subscriber. The Second Circuit therefore found
that Cablevision was not liable for direct copyright infringement. 

If the government advises the Supreme Court to take up this case, it likely
would not come before the Court until the 2009 fall term. CNN and the other
broadcast networks and film studios are currently awaiting the Court’s
approval of their petition for certiorari. On certiorari, the Supreme Court
would have before it several key questions fundamental to copyright law:
(1) What is a “fixed” copy?; (2) What does it mean “to perform the
copyrighted work publicly”?; and, in general, (3) How does the Copyright Act
apply to new technologies that allow for the automated and on-demand access
to and delivery of copyrighted content? With such high-stakes questions at
issue, various music companies, the Screen Actors Guild, and several
professional sports leagues have filed amicus curiae briefs in support of
the television networks. Arent Fox is monitoring this case for further
developments.  

For more information, please contact: 

 <http://www.arentfox.com/people/index.cfm?fa=profile&id=169> Anthony V.
Lupo 
 <mailto:lupo.anthony at arentfox.com> lupo.anthony at arentfox.com
              202.857.6353       

 <http://www.arentfox.com/people/index.cfm?fa=profile&id=376> Loni J.
Sherwin
 <mailto:sherwin.loni at arentfox.com> sherwin.loni at arentfox.com
              202.715.8581       