Two things
The Second Circuit has held that Cablevision’s remote DVR does not directly infringe studios’ and broadcasters’ exclusive rights to reproduce or publicly perform their movies and broadcasts. (EFF reaction here.)
This is an important case. Cablevision is authorized to deliver programming to its customers - indeed, Cablevision already paid the plaintiffs for that authorization. But the studios and broadcasters wanted to be paid AGAIN when Cablevision customers chose to record programming to watch it later.
Right, you thought time-shifting was legal! And in fact it is; it’s a fair use. Lots of companies sell digital video recorders (DVRs) that enable you to do this, including TiVo, and it’s generally accepted that selling DVRs is perfectly legal. Should the answer be any different if a cable company gives subscribers the ability to record programs to a remote server, rather than to a hard drive sitting in the DVR in their living room?
The Second Circuit said, resoundingly, “No.”
Cablevision wanted to allow their subscribers to record programs on *Cablevision’s* hard drives. The subscriber was going to make the decisions about what to record and what to delete. The plaintiffs argued that it was really Cablevision that was doing the copying, and so Sony (which is about secondary copyright liability) wouldn’t apply - and so Cablevision would be a direct infringer.
A win by the plaintiffs in this case would have been a bad development for a huge and growing sector: networked computing. As we’ve discussed in the past, we’re seeing a major paradigm shift to storing information and computing power in the “cloud” - networked computers owned by someone other than their users. So more and more things are happening remotely. If all of the suppliers and the operators of these remote devices were on the hook for direct copyright infringement because of what their subscribers were up to, they’d never go into the cloud business.
So the first thing today was: Great decision by the Second Circuit, which decided that if anyone’s a direct infringer in this context it’s the user - the subscriber who decided to make the copy and pressed a button to make that happen.
The second thing today is nested in that first thing: even though, technically, Cablevision has stored a copy of the program in its transient buffer storage just in case the subscriber wants it, that doesn’t make Cablevision a direct infringer either. As EFF says:
The court also reminded everyone that in order to be a “copy” for purposes of copyright law, a work must be “sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration” (here, the court concluded that data in temporary buffers in the Cablevision system that would be overwritten in, at the longest, 1.2 seconds were of transitory duration). In the digital age, where routers and caches often make fleeting copies of bytes in the ordinary course, this was welcome news.
So fleeting copies of bytes won’t trigger liability.
One hopes fleeting expletives won’t either. (Filings from the networks in connection with the Supreme Court Fox v. FCC case are reported on here.)