The Cablevision decision, part 1: Buffering is not copying

This Cablevision decision looks like it may make its way to the Supreme Court on questions of the interpretation of the Copyright Act, so I'd like to take an in-depth look at the decision (PDF). It's long so I'm dividing it into several posts.

Technology

First the court gave some technical background into how Cablevision's remote DVR works. Basically, if allowed to implement the remote DVR, Cablevision would split its programming into two streams -- one delivered in real-time to consumers, the other flowing into a broadband media router and then to its Arroyo server, which buffers and stores the programming data. When a customer requests a specific program, data moves from the primary buffer to a secondary buffer and is then stored to disk.

As the district court observed, “the RS-DVR is not a single piece of equipment,” but rather “a complex system requiring numerous computers, processes, networks of cables, and facilities staffed by personnel twenty-four hours a day and seven days a week.”

Lower court decision

The Hollywood studios argued - and the district court agreed - that Cablevision's R-DVR infringed copyright by (1) making copies of content through the buffering and storage process; (2) by storing content on hard disks directly infringing the the copyright holders' exclusive right of reproduction (the "reproduction right") and (3) by transmitting requested content directly infringe on the holders' exclusive right of public performance (the "performance right"). The district court granted summary judgment.

The dispositive question in the case, according to the court and the parties, was "who makes the copies?" The court found that Cablevision, exercising "unfettered discretion" over the content made the copies, not the customers who requested certain programs.

Is the Buffer Data a Reproduction?

By buffering the program data, does Cablevision infringe the reproduction right? The language of the Copyright Act actually contains two requirements for a work to be a "copy": (1) it must be embodied in a medium from which it can be viewed and (2) it must be stored there for "more than transitory duration."

The district court found the buffered content was a copy because the content was embodied in the buffer. The court relied on MAI Systems Corp v Peak Computer (991 F.2d 511, 9th Circuit, 1993), which found that software loaded into RAM constituted a copy. The Second Circuit, however, ruled that MAI's signficance is extremely limited regarding the duration period. MAI only addresses the embodiment requirement, not the durational requirement, the court said, since the parties did not argue the second requirement.

We construe MAI Systems and its progeny as holding that loading a program into a computer’s RAM can result in copying that program. We do not read MAI Systems as holding that, as a matter of law, loading a program into a form of RAM always results in copying.

The court concluded that the buffer is merely transitory since no bit of data exists for more than 1.2 seconds and that if "embodied" in the buffer, there are not "fixed" in a medium. Therefore, buffering data does not create a copy.

Next ... liability for the playback copies