Info/Law

Last week, I joined a group of other professors of technology and intellectual property law in submitting a friend-of-the-court brief to the Second Circuit in 20th Century Fox v. Cablevision, a recent copyright case. In Cablevision, the district court outlawed a type of digital video recorder (DVR) that stored recorded programming on Cablevision’s own servers, rather than on a hard drive in the user’s home. The court concluded that Cablevision’s storage of recorded programming without the authorization of the shows’ creators infringed the creators’ copyrights.

A few quick items before I discuss the brief itself:

• The text of the district court’s opinion is on Wikisource, and you can read much more about it by Eric Goldman, Mike Madison, Bill Patry, and the other sources they cite.
• Professor David Post took the lead in organizing the IP professors’ brief, which was co-written by attorney Marc E. Isserles of New York’s Cohen & Gresser LLP.
• You can read our brief here (it’s also supposed to be available here, but apparently hasn’t been posted yet).
• Columbia’s Tim Wu filed his own amicus brief in the case, which you can read here.
• UPDATE: There’s also an amicus brief filed on behalf of a coalition of consumer groups, technology companies, and libraries, available here.

Our brief focused on one fairly narrow issue from the district court’s opinion. The district court actually found two separate infringing acts in the design of Cablevision’s DVR: first, when programming was copied onto the hard drives of Cablevision’s servers; and second, at an earlier stage of the process when programming was stored for one-tenth of a second (more precisely, 3 frames of video at the standard NTSC framerate of 29.97 frames per second) in a RAM memory buffer of Cablevision’s computer. Our brief addressed only the second alleged infringing act, not the first. The legal problem with with finding the tenth-of-a-second RAM buffer copy to be a separate infringement is that it effectively erases the “more than transitory duration” requirement from the Copyright Act’s definition of “fixation.” The practical problem is that there is no piece of modern technology that does not at some point store information in RAM in the course of copying it or transmitting it elsewhere. If every one of those temporary RAM buffer copies is a separate act of infringement, it potentially multiplies the scope of possible liability in any case in which the work is stored in digital form.

My students are surely tired of hearing me compare the act of reading a newspaper in paper form with the act of reading the same article off the newspaper’s web site — but the point is that the latter act implicates the copyright law, because it involves the making of a copy (from the newspaper’s web site, to your PC), while the former act does not. Now, under the Cablevision decision, reading the article off the newspaper’s web site potentially involves the making of multiple copies — each of which presumably must be licensed or excused by one of the statutory copyright limitations — as each transmitted packet that makes up the article is held in RAM before being assembled into the final version of the Web page and displayed on your computer screen. It’s bad law, and it deserves a hard critical look by the Court of Appeals.

Quite apart from the issue highlighted in the amicus brief, the Cablevision decision is simply one of the oddest opinions you’ll ever read. The often-repeated rap on courts dealing with intellectual property in the technological age is that judges don’t understand technology; that they are trying to fit the square peg of 19th-century IP liability rules into the round hole of our “quicksilver technological environment.” The Cablevision court, if anything, goes to the opposite extreme, becoming possibly the only court ever to be accused by a computer scientist of unduly “geeking out on the technical details.” Here is a passage you wouldn’t expect to read in a non-patent case:

The Arroyo server locates the copy of the program stored on the customer’s hard drive, reads it into buffer memory—here, the “streaming buffer”—and sends it to the Ciena switch, which routes the programming stream to the appropriate QAM serving that customer. (478 F. Supp. 2d at 615).

Puzzled by any of that technical jargon? Not to worry; elsewhere in its opinion, the court devotes a separate lengthy paragraph to defining each of the many references used in the indented quotation — “Arroyo server” (p. 612), “buffer memory” (p. 613), “QAM modulators” (p. 611) — as well as many others, for page after page. I am confident that only my too-hasty skimming led me to skip over the catalog part number, recommended supplier, and current list price for the “Ciena switch,” which are surely there in the court’s opinion somewhere.

If this obsessive cataloging of the technical functions of the defendant’s product hadn’t influenced the court’s analysis, it would be a mere curio; worthy perhaps of a snarky blog comment made in passing, but nothing more. The evidence, however, suggests that the court’s focus on the trees really did lead it to miss the forest here. For example, consider the court’s rejection of the defense’s attempt to analogize the accused STS-DVR product to its (apparently concededly lawful) RS-DVR product (in which the hard drive on which the recorded TV programming sits is located in your living room, rather than at the cable company’s office):

In any event, Cablevision’s attempt to analogize the RS-DVR to the STS-DVR fails. The RS-DVR may have the look and feel of an STS-DVR (see Defs. Ex. 101), but “under the hood” the two types of DVRs are vastly different. For example, to effectuate the RS-DVR, Cablevision must reconfigure the linear channel programming signals received at its head-end by splitting the APS into a second stream, reformatting it through clamping, and routing it to the Arroyo servers. The STS-DVR does not require these activities. The STS-DVR can record directly to the hard drive located within the set-top box itself; it does not need the complex computer network and constant monitoring by Cablevision personnel necessary for the RS-DVR to record and store programming. (478 F. Supp. 2d at 619).

Reading that passage, I kept asking myself which provisions of the Copyright Act made it relevant whether the defendant did, or did not, “reconfigure the linear channel programming signals received at its head-end by splitting the APS into a second stream,” “reformat it through clamping,” or “route it to the Arroyo servers.” Although those may be distinctions between how the RS-DVR technology and the STS-DVR technology work, as far as copyright law is concerned, they are distinctions without a difference. (Of course, it’s relevant that Cablevision’s employees are involved in the STS-DVR technology, but that fact shows only that a claim for direct (rather than merely third-party) liability can be brought; it’s certainly not dispositive on the question whether infringement has occurred.)

Filed under: Copyright, Court Decisions, Intermediaries