"From its beginning, the law of copyright has developed in response to significant changes in technology." (1) The last thirty years have witnessed exponential growth in digital technology, and the application and interpretation of copyright law must continue to respond to these developments. Specifically, temporary digital reproductions are challenging "the physical, tangible copy as the basic unit of consumption and infringement" (2) and society must be willing and able to adapt to these changes.
The Copyright Act of 1976 (3) defines copyrightable material as "original works of authorship fixed in any tangible medium of expression," (4) and requires that a reproduction be "fixed" (5) in order to be considered a "copy." (6) Although the Copyright Act explicitly defines the term "fixed," digital reproductions held in temporary storage like Random Access Memory (RAM) (7) and buffers (8) are challenging the traditional understanding of the term. (9)
The Ninth Circuit decision MAI Systems Corp. v. Peak Computer Inc., (10) is credited with establishing the standard for analyzing whether temporary digital reproductions are "fixed." (11) In MAI, the Ninth Circuit held that reproductions contained in computer RAM were fixed and thus infringing copies, despite the fact that RAM is intended to be, and is generally considered, a temporary storage medium. (12)
While some commentators have criticized the MAI decision, (13) the Ninth Circuit's holding has not seriously been challenged until the recent Second Circuit decision, Cartoon Network v. CSC Holdings, Inc. (14) In Cartoon Network, the Second Circuit overruled the lower court's decision, (15) which adhered to the MAI analysis, and instead held that reproductions lasting 1.2 seconds in the buffers of a new type of Digital Video Recorder ("DVR"), the Remote Storage-DVR ("RS-DVR"), (16) were insufficiently fixed to be copies. (17) To reach its holding, the Second Circuit applied what it believed was strict statutory interpretation requiring that reproductions be held in the RS-DVR buffers for "a period of more than a transitory duration" (a temporal threshold) to be considered "fixed" and a "copy." (18) This approach was a direct challenge to MAI and its progeny, (19) which had interpreted the term "fixed" by focusing on the reproduction's functional qualities and only required that a work be embodied long enough to be capable of reproduction, transmission or communication. (20)
The difference in statutory interpretation has enormous consequences because all digital devices--computers, cell phones, personal digital assistants (PDAs), MP3 and compact disk players, fax machines, digital televisions--utilize buffers to temporarily hold data. (21) At the heart of this digital fixation debate is the balance between the promotion of technological innovation and development with the protection of value to the copyright holder. (22) This is especially relevant since new technology has made it easier and less expensive to make reproductions and some experts expect the most impressive technology to be advanced in the area of reproduction. (23)
This note argues that the Second Circuit's analysis and interpretation of the Copyright Act is misguided and instead supports the standard developed by the Ninth Circuit in MAL Ultimately, Congress must intervene to clarify and update the statutory construction of the term "fixed" to account for the capabilities of digital technology. Part II of this note discusses the RS-DVR as a recent example of digital technology challenging traditional copyright principles. Part III provides a brief history of the Copyright Act and discusses how courts have applied the MAI holding. Part IV reviews the Cartoon Network decision, and highlights the divergent opinions of the lower court and the Second Circuit. Finally, Part V examines the history behind the fixation requirement and concludes that the Second Circuit's interpretation of the term "fixed" in the Copyright Act as a temporal threshold is not applicable to digital technology, and is at variance with the intent of copyright law.
TECHNOLOGY PUSHING THE BOUNDARIES: THE RS-DVR
The DVR was first introduced in 1999. (24) At the time, it was a revolutionary device, allowing consumers to "record programming to a hard drive-based digital storage medium, rather than to a video cassette." (25) Many cable companies, including Cablevision, currently offer a combination DVR and cable box that customers keep in their house ("STS-DVR"). (26) These boxes are capable of recording digital programming directly onto a hard drive contained within the box. (27)
The RS-DVR is Cablevision's next generation DVR and stores recorded programming on servers located at Cablevision's central cable facility. (28) The recorded programming is then sent from the central cable facility to the consumer. (29) The consumer no longer has to maintain a DVR box at his or her home. (30)
Cablevision receives its programming content via a video stream directly from content providers like CBS or NBC. (31) Normally when the programming content is received, it is distributed in real time to the customer's cable box. (32) However, for RS-DVR, the video stream is split into two independent streams. (33) The first stream continues to the consumer for real time viewing. (34) The second stream is sent to a set of servers located at Cablevision's central cable facility. (35) Once in the servers, the video stream is "read" or recorded into the server's buffer memory. (36) The programming stream is broken down into packets of data and each packet is held in the buffer's memory for about 1.2 seconds. (37) The buffer holds about six thousand packets of video, roughly three frames of video, and it waits to see if any customers have selected to record the program. (38) If a customer selected to record the program the video stream is permanently copied onto the customer's hard drive storage located at the cable facility before being sent to the customer. (39) This process is continuously repeated. (40)
From a consumer perspective, the RS-DVR works the same way that the traditional DVR works. (41) The customer records programming either by scheduling the program to be recorded or by pressing the record button on the TV remote control while watching the program. (42) The main difference is that instead of controlling a box in your home where the video is recorded, the customer "sends signals from the remote, through the cable to ... Cablevision's central facility" where the hard drive space is stored. (43)
The development of the RS-DVR is just one example of how digital technology poses new challenges to the application of traditional copyright principles. The ability to record video content is not new. In 1984 the U.S. Supreme Court held that the use of a VCR to "time-shift" (44) was a noninfringing fair use if done for a private, noncommercial purpose. (45) The legality of the DVR, an extension of the VCR, had not seriously been challenged in part because of its functional similarity to the VCR. (46) However, the RS-DVR challenges this similarity because Cablevision, the cable provider, has inserted itself into the process of recording, transferring, and maintaining the video content. (47) The RS-DVR creates multiple reproductions during the copying process, as Ultimately, the customer must rely on services provided by the cable provider to watch its recorded programming. (49)
EXISTING LAW AND LEGAL BACKGROUND
The Copyright Act of 1976 was enacted to update prior laws due to "significant changes in technology" that Congress believed "affected the operation of the copyright law." (50) According to the Copyright Act "'copies' are material objects ... fixed by any method now known or otherwise later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (51) The Copyright Act defines "a work [as] 'fixed' in a tangible medium of expression when its embodiment ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration." (52)
The broad language of the Copyright Act was "intended to avoid ... artificial and largely unjustifiable distinctions relied on by the courts in addressing copyrightability." (53) Congress specified that the definition of "fixed" excluded "purely evanescent or transient reproduction[s] such as those projected briefly on a screen, shown electronically on a television ... or captured momentarily in the 'memory' of a computer." (54)
Following the 1976 Act, the Commission on New Technology Uses ("CONTU") was congressionally appointed (55) "to determine how the Copyright Act of 1976 should address computers" (56) and issued its report in 1978. (57) With respect to the definitions of "fixed" and "copy," CONTU clarified that "[b]ecause works in computer storage may be repeatedly reproduced they are fixed and, therefore, are copies." (58) This is exactly the view that most courts adopted prior to the Cartoon Network decision. (59) In its report, CONTU cautioned that the establishment of a temporal threshold for determining whether a "copy" was fixed would be "futile," (60) because technological development will make it more and more difficult to "[d]raw the line between the copyrightable form of a program and the uncopyrightable process which it implements." (61) Instead, CONTU suggested that distinctions "should be drawn on a case-by-case basis." (62) Congress has codified many of the recommendations found in the CONTU Report. (63)
MAI v. Peak
MAI is credited with establishing the judicial framework for analyzing whether temporary digital reproductions are "fixed." (64) The issue posed in MAI was whether a reproduction held in the temporary memory of a computer (its RAM) was an unauthorized infringing copy. (65) On appeal, the...