March 26, 2007
Links and Rough Notes on the Cablevision Remote DVR Decision
Sherwin Siy nails the bottom line on the Cablevision remote DVR decision — why should it matter whether customers store their DVRs at home or with Cablevision? There’s an artificial product-service distinction here, and the judge doesn’t clarify exactly why or how the law supports it. Bill Patry has a nice analysis of what’s lacking in the judge’s arguments.
The more I thought about the copying issue, the less clear it was to me — here are some rough notes:
One of things that caught my eye was the court distinguishing Netcom, in which a court held that an ISP and bulletin board provider was not directly infringing. The judge says that Netcom was “premised on the unique attributes of the Internet.”
This reading was notably rejected as an “overstatement” in CoStar, in which the court held “more must be shown than mere ownership of a machine used by others to make illegal copies;” instead, “the Copyright Act require[s] some aspect of volition and meaningful causation.” The Cablevision judge never really addresses this framing head-on.
The court declares that Cablevision is playing an “active” role in the copying of TV shows, and it thus is more like a copyshop clerk who copies a book on behalf of a customer, rather than simply providing machines for the customer to use himself. But no Cablevision employee hits the record button; the user is in control of what gets recorded.
The court highlights Cablevision’s “on-going participation” — it houses the system, monitors it, repairs it, and has a continuing ability to control it. These are all issues that would typically come up in the secondary liability context, but how they necessarily matter in terms of direct infringement isn’t clear to me. Kinkos performs all those functions too, after all. The sophistication of the technical system shouldn’t be determinative.
The court also points out that Cablevision supplies the content to be copied and has “unfettered discretion” over what particular content may be recorded. Now imagine a bookstore in which a fixed set of books on shelves were provided alongside photocopy machines. It too has “unfettered discretion” over what content will go on the shelves. The bookstore maintains the machines and even provides staff that will retrieve books for patrons. A customer gets a book and then copies it — is this so different from the Cablevision case?
Filed by Derek Slater at 9:15 pm under Uncategorized
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