Cartoon Network, LP v. CSC Holdings, Inc.

Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008),[1] was a United States Court of Appeals for the Second Circuit decision regarding copyright infringement in the context of digital video recorders. Among other reasons, it is notable for disagreeing with the Ninth Circuit's holding in MAI Systems Corp. v. Peak Computer, Inc., regarding whether a momentary data stream is a "copy."

Cartoon Network, LP v. CSC Holdings, Inc.
CourtUnited States Court of Appeals for the Second Circuit
Full case nameThe Cartoon Network LP, LLLP et al. v. CSC Holdings, Inc. and Cablevision Systems Corporation
ArguedOctober 24th, 2007
DecidedAugust 4th, 2008
Court membership
Judge(s) sittingJohn M. Walker, Jr., Robert D. Sack, and Debra Livingston
Case opinions
Decision byJohn M. Walker, Jr.
Keywords
copyright infringement, embodiment, transitory duration, MAI

In the case, Cablevision, a cable television provider, sought to create a hosted DVR (Digital Video Recorder) service. A consortium of copyright holders in the television and film industries sued for direct copyright infringement on the grounds of unlawful copying and public performance. The appeals court found that a) the automated copying of content at user request did not constitute direct infringement, b) Time shifting, or replaying content to the original audience, did not constitute public performance, and c) the copying of streaming content for the purposes of buffering did not itself constitute unlawful copying.[1]

Background Information

Around March 2006, Cablevision, a cable television provider, announced the development of a "Remote Storage DVR" (RS-DVR). Similar in operation to a traditional digital video recorder (DVR), Cablevision's DVR allowed customers to pause, record, and replay and/or rewind previously recorded content. Unlike traditional DVRs, which require an appliance containing a hard drive to be placed in the home of the subscriber, the Cablevision DVR stored content on servers at Cablevisions broadcast facilities. To implement the DVR service, Cablevision streamed their existing digital television system through a second server, which identified requested content, then copied and streamed this content onto permanent storage for later retrieval. At various points in the system, content was buffered for periods of several seconds (0.1 and 1.2 seconds respectively). Notably, content requested by a particular user was stored separately and independently for that user and replayed only to the user who requested it. Cablevision announced their intention to release the service and were sued for direct copyright infringement by a consortium of television and movie copyright holders including Turner Broadcasting and its subsidiaries Cartoon Network and CNN; Twentieth Century Fox; NBCUniversal subsidiaries NBC and Universal Studios; Paramount Pictures; Disney and its subsidiary ABC; and CBS. The consortium sued only for declaratory relief and injunctive relief on the grounds of direct copyright infringement, excluding from consideration the topic of contributory copyright infringement. In their response, Cablevision waived any defense based on fair use.[1]

District Court

Cartoon Network, et al. claimed copyright infringement on three grounds:

  • The buffering of streaming data, necessary for the RS-DVR's operation, constituted the creation of unlicensed copies in RAM.
  • The persistence of complete copies on Cablevision hard drives also constituted the creation of unlicensed copies.
  • Transmitting hard drive copies to RS-DVR users in response to a "play" request constituted unlicensed public performance.

Cablevision argued that:

  • Buffered content was de minimis because of the extremely limited duration and size of content storage.
  • The creation of hard drive copies was done by consumers and only facilitated by Cablevision, and hence that Cablevision was at most guilty of contributory infringement (not at issue in the case).
  • The transmission of hard drive copies was made only to the user who requested content and to their home, not "to the public".

On consideration, the district court found:

  • Buffered copies were fixed, following MAI Systems v. Peak Computer, in so far as they were copyable.
  • Buffering was not de minimis since the "aggregate effect of the buffering" was to reproduce the entirety of the work.
  • Due to the "continuing relationship" between Cablevision and the volitional design of the system to copy content, Cablevision was the maker of the hard drive copy even though the copy was automatically made by the RS-DVR at the customer's request.
  • Transmission of hard drive copies constituted public performance since Cablevision would transmit "the same program" to different members of the public.

The district court awarded summary judgment to the plaintiffs and enjoined Cablevision from operating the RS-DVR system.

Circuit Court

Cablevision appealed to the Second Circuit Court of Appeals and the Circuit Court reversed and vacated the judgment, and remanded the case in August 2008. The Circuit Court rejected the District Court's reasoning on all three grounds.[1]

Buffering of data

On the topic of content buffering, and more broadly on the topic of the creation of RAM copies being infringing, the Second Circuit court noted that the Copyright Act requires two conditions for a work to be "fixed" and hence infringing: the work must be both "embodied in a copy or phonorecord" and perceivable "for a period of more than a transitory duration"[2] (which the court denotes as the "embodiment" and "duration" requirements). It found the District Court relied too heavily on the embodiment requirement and did not properly consider the duration requirement. In this, the Circuit Court noted the lower court's reliance on MAI Systems Corp. v. Peak Computer, Inc., a Ninth Circuit case which held the creation of RAM copies to be infringing. The Circuit Court found this case did not directly address the duration requirement and showed only the necessity of the embodiment criterion, not its sufficiency. Indeed, the alternative interpretation, as the court points out, would read the "transitory duration" language out of the copyright act. The Circuit Court thus held that while the data was embodied in the buffer, the duration was sufficiently small to be considered transitory.[1] As has been pointed out in editorials,[3] the court does not, in this decision, establish 1.2 seconds as a benchmark for determining transitory duration and the maximum duration of retention under which a work is transitory remains an unclear area of copyright law.

Direct liability for creating the playback copies

As identified in the District Court, the dispositive question in determining liability for direct copyright infringement with respect to the copies stored on hard drives in the Cablevision RS-DVR was who made the copies. The District Court held that Cablevision made the copies, albeit at the customer's request. The Circuit Court disagreed. Both parties in the case cited a line of cases originating with Religious Technology Center v. Netcom On-Line Communications Services, which established the requirement for "some element of volition or causation" in the creation of a copy for it to be infringing. Here, the Circuit Court found that while Cablevision engaged in some volitional conduct by creating a system which exists only to reproduce conduct, it was not "sufficiently proximate" to the act of copying to be liable for direct infringement. The Circuit Court held that the claims brought by Cartoon Network, et al., were more relevant to claims of contributory infringement, which was not at issue in the case.[1]

Transmission of RS-DVR playback

In contrast to the District Court, which held that the determination of a transmission being made to the public should be made on the grounds of the audience of the underlying work, the Circuit Court held that such a determination should be made by considering only the potential audience for the particular copy of a work. As Cablevision transmitted only the copy requested and recorded "by" a particular user to that user on that receiver used to request the copy, the transmission was not "to the public."[1]

Findings

The Circuit Court held that Cablevision's proposed DVR system did not directly infringe Cartoon Network, et al.'s rights of reproduction and public performance on any of the three claimed grounds. They thus reversed, vacated, and remanded the District Court's decision.[1] It is also perceived to be especially important with respect to establishing copyright liability protection for cloud computing and remote-storage providers.[4]

References
  1. Cartoon Network, LP v. CSC Holdings, Inc. Archived April 29, 2011, at the Wayback Machine, 536 F.3d 121 (2d Cir. 2008).
  2. 17 USC ยง 101
  3. Zohar Efroni - The Cartoon Network v. CSC Holdings & Cablevision Systems Stanford Law School: Center for Internet and Society.
  4. David Johnson, DOJ Asks U.S. Supreme Court Not to Hear Case with Potential Major Impact on Cloud-Computing Copyright Issues Archived December 22, 2010, at the Wayback Machine, Digital Media Lawyer Blog (June 3, 2009).
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