Washington Journal of Law, Technology Arts Law, Technology and ArtsVolume 7, Issue 2 Fall 2011
Copyright Infringement Liability of Placeshifting Services in the United States and Japan
Naoya Isoda(fn*)
Abstract
Placeshifting is a convenient service that enables customers to enjoy television programs from their home countries even if they are in foreign countries. Placeshifting works by receiving/recording a television program in one country and then transmitting the digital data to customers everywhere in the world via the Internet upon each customer's request. Because placeshifting may be involved with recording and/or transmitting copyrighted content, service providers must face the question whether they may be liable for copyright infringement. In the United States, the Second Circuit in Cartoon Network v. CSC Holdings decided the legality of placeshifting by requiring a "volition element" for direct infringement. In Japan, however, court decisions have varied. Most of the courts have applied an overall consideration standard such as the "Karaoke rule." As a result, there remains large uncertainty about the state of the law in Japan. This Article introduces the legal basis and judicial decisions for placeshifting both in the United States and Japan and suggests introducing the volition requirement as one possible solution for the uncertainty in Japan.
Table of Contents
Introduction..............................................................................151
I. What is "Placeshifting"?....................................................153 A. Characteristics of Placeshifting Service.........................153 B. Placeshifting Service Providers in the U.S. And Japan ... 155 C. Differentiation from the Term "Space-Shifting".............155
II. U.S. and Japanese Copyright Law Regarding Indirect Liability................................................157A. U.S. Copyright Law.......................................................157 B. Japanese Copyright Law................................................163
III. U.S. Case Law Regarding Placeshifting - Cablevision........170A. Background...................................................................170 B. The District Court Decision...........................................172 C. The Second Circuit Decision.........................................172 D. The Supreme Court Denies Certiorari............................175 E. Remaining Problems of Volition Standard in Cablevision..............................................175
IV. Japanese Case Law Regarding Placeshifting.......................180A. Background...................................................................180 B. Rokuga Net...................................................................180 C. Maneki TV....................................................................183 D. Rokuraku II ...................................................................188 E. Yoridorimidori...............................................................191 F. Remaining Problems of Japanese Case Laws..................193
V. How Should Japanese Law Treat Placeshifting?.................197A. Basic Standpoint............................................................197 B. IPHC's Decisions Considering the Volition Factor........198
Conclusion................................................................................199
Appendix......................................................................................200
Introduction
If you go abroad for business or to study for a long period, wouldn't it be convenient to be able to watch your favorite television programs from home? Recently, a so-called "placeshifting"(fn1) service has come to fulfill such a demand. With placeshifting, customers can watch television programs, including copyrighted ones, through a device installed by the service provider, who then must face the question whether the service provider may be liable for copyright infringement.
The u.s. copyright statute does not answer this question directly because such a service did not exist at the time the legislation was drafted, and there has been no case law directly addressing this issue. In the digitalization and networking era, as the Supreme Court indicated in MGM Studios v. Grokster,(fn2) it is essential to consider not only "copyright protection" but also "promoting innovation in new communication technologies."(fn3) In deciding the legality of the placeshifting service, therefore, courts must balance these factors. (fn4) Without a proper balance, any company that wants to introduce new technology services may be too cautious to start its business.
In Japan, conclusions on this issue have varied among court decisions. Thus, there is uncertainty for any company that plans to introduce a placeshifting service to predict whether its business will be legal. In the United States, however, the Second Circuit rendered a decision in Cartoon Network v. CSC Holdings (fn5) (Cablevision) that lends some guidance. The most remarkable point in this decision is that the court required a "volition"(fn6 )element for the existence of direct infringement. The court held that the placeshifting provider was not liable for direct infringement on the ground that any "volitional" conduct associated with copying the copyrighted content at issue was not made by the provider but by individual customers instead.(fn7) This Article analyzes the current legal problems for placeshifting, both in the United States and Japan.
Chapter I provides a general overview of placeshifting services, both in the U.S. and in Japan. Chapter II introduces, as the basis of comparative law, the basic structures of the U.S. and Japanese copyright laws regarding the liability of an indirect actor. Chapter iii discusses the volition requirement in Cablevision. Chapter IV discusses Japanese case law regarding placeshifting services and shows the problems caused by uncertainty. Chapter V analyzes how Japanese law should treat the legality of placeshifting.
I. What is "Placeshifting"?
A. Characteristics of Placeshifting Service
Placeshifting is a service whereby: (1) a device set by the provider receives and records(fn8) television programs broadcast in one country and (2) transmits the programs to its customers via the Internet, so that (3) its customers can then view the programs anywhere in the world. it must also be recognized that most of the services use a device that is individually allocated to each customer at the provider's central place of business and is manipulated via remote control by each customer, not by the service provider. It is not a mere rebroadcasting of the TV broadcast,(fn9) but is similar to the use of a DVD recorder or a video cassette recorder (VCR).
Sling Media Inc., one such placeshifting provider, defines the term "placeshifting" as:[A] service that "allows anyone with a broadband Internet connection to have video streams from their home television set, DVR or other video source (such as a DVD player or home security camera) forwarded for viewing remotely on a computer, netbook, or mobile phone at any location where they have a high-sp10eed Internet connection or cellular data network.(fn10)
Accordingly, placeshifting can best be understood in relationship to its predecessor, "timeshifting." Sony Corporation of America v. Universal City Studios (fn11) centered on whether the defendant, Sony, was liable for contributory infringement by making and selling Betamax video tape recorders. The Supreme Court emphasized that the "timeshifting" function of Betamax was a permissible "substantial noninfringing use. (fn12) The Court explained timeshifting as follows:[T]he practice of recording a program to view it once at a later time, and thereafter erasing it. Time-shifting enables viewers to see programs they otherwise would miss because they are not at home, are occupied with other tasks, or are viewing a program on another station at the time of a broadcast that they desire to watch.(fn13)
However, it can be said that placeshifting is well beyond such a timeshifting function(fn14) because the user can view the program anywhere in the world as long as she is connected through the Internet. Namely, the user may select the place to view TV programs. That is why it is known as "placeshifting."
Although placeshifting is a successor to timeshifting, it is not a completely novel technology. Placeshifting combines some preexisting technologies such as digital recording technology and networking technology.(fn15) The innovative point in placeshifting is its combination of these pre-existing technologies with new services designed to match consumers' demands.
B. Placeshifting Service Providers in the U.S. And Japan
In the United States, placeshifting service providers include Cablevision (Service: "RS-DVR"), (fn16) Sling Media (Product: "Slingbox"),(fn17) SageTV, LLC (Product: "SageTV Placeshifter"),(fn18 )Orb Networks (Service: "MyCasting"), (fn19) and Sony (Product: "LocationFree").(fn20) Similarly, in Japan there have been several placeshifting services such as "Maneki TV" by Nagano Syoten K.K.,(fn21) "Rokuraku II" by Nihon Digital Kaden K.K.,(fn22) "Rokuga Net" by FA Vision K.K.(fn23) and "Yoridorimidori" by Kuromusaizu K.K.(fn24) Any one of these companies risks being sued by content owners in the...
