Rs-dvr Slides Past Its First Obstacle and Gets the Pass for Full Implementation

• Publication year: 2008
• Citation: Vol. 10 No. 2008

Megan Cavender ⁰

Digital video recording has become an indispensable household item. The advent of the remote storage digital video recorder (RS-DVR) allows consumers to expand digital recording capability without the need for a stand-alone DVR box. This new technology raises interesting legal questions regarding copyright infringement including: liability resulting from the need for buffer copies in digital technology, liability when a computer system produces the copy, and whether playing back an RS-DVR recorded program constitutes a public performance. This Recent Development discusses the response to some of these copyright liability questions made by the Second Circuit in Cartoon Network LP, LLLP v. CSC Holdings, Inc., which primarily held that a cable company cannot be held liable for operating an RS-DVR through which customers request shows to be recorded. This analysis supports the holding by the court based on the needs of digital technology but concludes that the reasoning will likely serve as weak precedent in future related cases.

I. Introduction

It is just before nine o'clock on Thursday night and Julie is in a bind. She wants to watch The Office on NBC and Grey's Anatomy on ABC but must go to a late dinner date with friends. If she has a VCR, then she must choose which program she would rather watch because she can only record one of the two programs. However, her problem is solved thanks to her digital video recorder (DVR). With a DVR she is able to record both programs while she attends her dinner date, and then watch them when she returns home.

This scenario is typical for many Americans who have access to a DVR. In fact, according to a recent survey, eighty percent of American DVR owners say they cannot live without their DVRs.¹ This survey also indicated that in terms of essential household technology items, DVRs fall in second, just behind cell phones, as must-have items.² DVRs have even become the third most indispensable general household item behind the washing machine and the microwave.³

Considering the importance many Americans deem their DVRs to hold, any improvement in DVR technology would likely have an impact on television viewers who already employ a DVR system. DVR enthusiasts now have the opportunity to get excited as digital video recording is improved through the invention of a remote storage digital video recorder (RS-DVR).⁴ RS-DVRs are the latest advancement to hit the cable television industry.⁵ Developed by a major cable service provider, Cablevision Systems Corporation ("Cablevision"), this technology allows television viewers to record programs without the need for a stand-alone DVR box.⁶ Instead, customers request programs using a remote control, and Cablevision records and stores the programs on a central server at a remote location.⁷ Following this, the copy of the recorded program may be obtained by the customer using a remote control and standard cable box.⁸

The RS-DVR is a hybrid system, combining elements of the standard DVR system with that of a typical video on-demand service.⁹ The principal difference between an RS-DVR and a standard DVR is the location of television program storage.¹⁰ The standard DVR system stores the program on the individual DVR cable box, whereas the RS-DVR maintains the recordings on a central server operated by Cablevision.¹¹ The major difference between the RS-DVR system and a video on-demand service involves the amount of selection of available programs to playback.¹² The RS-DVR system creates a list of programs to view based solely on the customer's requests prior to the program's airing, much like the DVR systems to which customers are currently accustomed.¹³ Video on-demand service, on the other hand, allows a customer to select from a pre-recorded variety of television programs to be played at any time.¹⁴

In exploring the advantages of this technology, Part I of this Recent Development examines this evolutionary technology and analyzes the Court's response to the various legal complications associated with its use. Part II discusses the industry response to this advancement in DVR technology and the legal issues of such technology, which the Second Circuit began to address in Cartoon Network LP, LLLP v. CSC Holdings, Inc.¹⁵ Part III explains how the RS-DVR system operates. Finally, Parts IV and V set forth the new legal standards that result from Cartoon Network and discusses ways in which the case will affect the future of copyright law.

II. Initial Response to RS-DVR Innovation

In response to this innovative technology, several major television networks¹⁶ have attempted to prevent its implementation without proper licensing¹⁷ by filing suit against Cablevision (also referred to as CSC Holdings, Inc.) in federal court alleging direct copyright infringement.¹⁸ The television networks alleged that Cablevision's RS-DVR system directly infringed upon the exclusive rights to reproduce and publicly perform the works covered by the networks' copyrights.¹⁹ In Cartoon Network, the Second Circuit overturned the district court's holding in favor of the television networks²⁰ and declared that the use of the RS-DVR system does not constitute direct copyright infringement.²¹ The Second Circuit emphasized that it only ruled on direct copyright infringement,²² and not indirect, because it was the only theory of liability alleged by the television networks.²³ In spite of this, the Court discussed the possibility of secondary liability and expressed the opinion that Cablevision may not necessarily be able to escape all theories of copyright infringement.²⁴

When addressing the issue of possible direct copyright infringement, the Court discussed two particular rights associated with copyright ownership: the right to exclusive reproduction²⁵ and the right to public performance.²⁶ In discussing these rights, the Court offered a problematic analysis that inadequately addressed other circuit precedents, which could have challenging implications for future DVR copyright cases.²⁷ Thus, this potentially significant holding²⁸ may nonetheless have a weak influential impact on other circuits and create a circuit split. one path a court may take is to exploit the Second Circuit's faulty reasoning. Future litigants may also attempt to distinguish themselves from the particular facts underlying this holding—that Cablevision did not copy the copyrighted data through use of its buffer copies and memory storage on the "Arroyo Server."²⁹ This path would effectively disregard Cartoon Network and promote more stringent copyright laws. Alternatively, a court could accept the significance of this holding, which serves as an impetus for flexibility and evolution of copyright law, by recognizing the need for buffer copies in digital technology, thus promoting innovation.

III. The Operation of RS-DVR Unveiled

Examining the operation of the RS-DVR system is a necessary step in determining the existence of direct copyright infringement.³⁰ Television programming is typically transmitted in a single stream of data from the cable company to the customer's television in real time.³¹ Under the RS-DVR system, this single stream of data is split into two streams whether or not the customer requested the selected program to be recorded through his or her remote control.³² One stream is transmitted straight to the customer's television, just like typical television programming.³³ The second stream of data travels through a "Broadband Media Router" ("BMR"), which then reformats the data by sending it through two buffers and stores it on a hard drive called the "Arroyo Server."³⁴ The Second Circuit further explained the process: "[when] a customer has requested a particular program, the data for that program move from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer."³⁵

The initial buffer stores no more than 0.1 seconds of any program at any one moment, while the buffer in the BMR stores no more than 1.2 seconds of any program at any one moment.³⁶ After the buffered data is stored on the "Arroyo Server," the customer obtains the program by selecting it from an on-screen list of recorded shows using his or her remote control.³⁷ Because a temporary copy of 0.1 seconds is made in a remote storage device, a "copy"³⁸ is made, which may violate the copyright holder's exclusive right to produce copies.³⁹ Thus, this step in the process of RS-DVR operation is specifically addressed by the Court in determining the presence of direct copyright infringement.⁴⁰

IV. The New Standards Set by Cartoon Network: The Holding and All That It Entails

The district court initially awarded the major television production companies summary judgment by declaring that Cablevision committed direct copyright infringement.⁴¹ The court then enjoined Cablevision from implementing the RS-DVR system without first obtaining licenses from the television networks for the content stored on the central server.⁴² Summary judgment was awarded on two theories of copyright infringement: the copyright holder's right to exclusive reproduction and the right to public performance.⁴³

After Cablevision appealed the injunction, the Second Circuit exercised de novo review for the following allegedly infringing acts to determine whether any violated the right to reproduction or the right to public performance: production of the buffer copy, creation of the copy for customer playback, and actual playback of the customer copy.⁴⁴ Looking first at the buffered data, the court held that two requirements must be met for a violation of the right of exclusive reproduction to exist: "the work must be embodied in a medium . . . and it must remain thus embodied 'for a period of more than transitory duration.'"⁴⁵ The Court emphasized that if the work is not "fixed" in a particular medium, such as the buffer, then the work does not constitute a "copy."⁴⁶ However, the...