ENTERTAINMENT LITIGATION: COPYRIGHT AND THE NEW REMOTE DIGITAL VIDEO RECORDERS

SUPREME COURT MAY CONSIDER WHETHER FEDERAL APPEALS COURT RULING PERMITTING REMOTE DIGITAL VIDEO RECORDERS VIOLATES THE COPYRIGHT ACT

The manner in which we view television programs has changed. The advent of digital video recorders like Tivo means that viewers are regularly “copying” content. While copying for personal use has been upheld by the courts, new technologies allowing cable companies to provide digital video recorders from a remote, central location have given rise to a number of cases across the country.

In August 2008, the Second Circuit considered the issue of whether such a “remote digital recorder” violated content providers’ copyrights. That court reversed a ruling in the Southern District of New York and held that these remote DVRs did not infringe upon the providers’ rights. However, just last month, the United States Supreme Court requested the government to weigh in on the issue — requesting that the Solicitor General submit a brief to express the government’s view of the law.

Should content providers really be complaining about a DVR system which appears to be more secure against piracy? Stay tuned to see if your cable’s DVR will be upheld to be legal.

DO THE NEW REMOTE DVR SYSTEMS “COPY” CONTENT IN VIOLATION OF THE COPYRIGHT ACT?

The new remote DVRs use a slightly different technology than the set top Tivo-type DVRs to which we have become accustomed. The complete technical details are set forth in the Second Circuit’s opinion, Cartoon Network v. CSC Holdings, 536 F.3d 121, 124-25 (2d Cir. 2008).

In summary, the cable companies’ remote DVR has the same controls and “box” that the stand alone set top DVRs do. However, those controls are linked to a remote, central server which stores all of the content. In contrast, the stand alone, set top DVRs store all of the content on a hard drive inside the unit.

The programming received by the cable company is split into two streams of data. The first goes “live” to the viewers. The second goes to the the company’s server which houses the remote DVR programing. That data is first recorded for 1 to 2 seconds to a primary “buffer.” If a customer has asked for that programming to be recorded, that data is moved into a secondary buffer and then stored on a portion of the server dedicate to that customer. If that programming was not requested, then the primary buffer is overwritten.

Thus, the content providers like Cartoon Network complained that the cable companies were violating their copyright through these two instances of “copying” — the first “buffer” copy and the second recording as requested by the customer. The district court in New York held that both “copies” violated the content providers’ copyrights and enjoined the cable companies from using the new technology. The Second Circuit reversed.

The Second Circuit held that the buffer copy was not a violation of copyright since it was only for a “transitory duration” — the “duration requirement.” So while the buffer copy was enough for the work to be “capable of being reproduced” from that medium — the “embodiment requirement” — both requirements had to be satisfied for there to be a copyright violation.

THE DECISION MAY NOT BE FINAL

The Second Circuit’s decision paved the way for cable companies to offer their remote DVR service to consumers. However, in January 2009, the United States Supreme Court invited the Solicitor General to submit a brief setting forth the government’s position on the issue of DVR copying. The practical question is whether the remote system described above — which copies programming content and stores that programming for cable customers on a remote server — is any different from the stand alone DVRs to which consumers have become accustomed.

The limitation on those stand alone boxes has always been the amount of storage capacity on the local hard drives. While hard drives have become larger, and there are companies who specialize in modifying DVRs to expand such storage capacity, a cable company will have the ability to provide virtually unlimited storage capacity to its customers.

The bottom line is that there is no practical difference between having programming copied on to a local hard drive versus a remote server where a portion of that server is dedicated to a specified customer. In fact, as a further safeguard against piracy, I would think that content providers would prefer that the actual media files be stored in locations where a customer cannot physically access those files. It remains to be seen if the Solicitor General, and the United States Supreme Court, feel the same way. However, the litigation brought by content providers like Cartoon Network seem shortsighted to me. Unless content providers can prevent copying by all DVRs, the remote storage of programming seems to benefit content providers since potential piracy would be more difficult.