Cablevision's DVR does not infringe copyright, appeals court rules

If you take the recording device of a DVR off the customer's premises and place it in an upstream transmitting station, does that constitute an unauthorized duplication? Last year, a US district court said yes. Today, it's a new ballgame.

In a ruling this afternoon that is very, very likely to be appealed itself, a three-judge panel of the US Second Circuit Court of Appeals unanimously reversed a lower court ruling in March 2007 in favor of movie and cable TV studios. That ruling stated that Cablevision Systems' plan to provide cable customers with a DVR-like system using its remote servers, constituted an illegal rebroadcast of their content. This afternoon, the judges strongly disagreed.

At issue is a key element of the language of the law: Everyone knows that electrical processes are required to produce a copy of a digitally recorded work. Plaintiffs, including 20th Century-Fox and various entities of Turner Broadcasting, and backed by the Motion Picture Association of America, had argued that such processes constituted transmission, and that implied in the concept of transmission of a recorded work was the performance of that recorded work. You can't have one without the other, plaintiffs argued; and a US District Court agreed last year.

But the Appeals Court called that permutation of the law an "error" today, ripping apart its technical basis (PDF available here, published by Public Knowledge). Specifically, it focused on Cablevision's proposed Remote Storage-Digital Video Recorder (RS-DVR) schematic, in which copies of a work in whole or in part were recorded on buffers prior to their being transmitted to customers' receiving equipment. The District Court presumed that those copies constituted the "embodiment" of the recorded work.

"The district court mistakenly limited its analysis primarily to the embodiment requirement," wrote Appeals Court Judge John M. Walker earlier today. "As a result of this error, once it determined that the buffer data was 'clearly . . . capable of being reproduced, i.e., that the work was embodied in the buffer, the district court concluded that the work was therefore 'fixed' in the buffer, and that a copy had thus been made."

But buffers are temporary storage media, Judge Walker went on, designed only to harbor portions of files for a "transitory duration" -- in other words, just long enough to get the file transmitted and removed from memory. He cited an earlier court decision in favor of a repair service that had rescued a customer's hard drive, and in so doing had copied that customer's software -- allegedly illegally. Since the rescue copy was only for a "transitory duration," that court ruled, the duplication wasn't really a "copy" for practical purposes.

In the case of RS-DVR, the transitory period was found to be no greater than 1.2 seconds. "While our inquiry is necessarily fact-specific, and other factors not present here may alter the duration analysis significantly," Judge Walker wrote, "these facts strongly suggest that the works in this case are embodied in the buffer for only a 'transitory' period, thus failing the duration requirement."

So if the buffer doesn't truly constitute a copy, then the transmission doesn't constitute a "performance" of that copy.