Cablevision, part 2: Is RS-DVR like a VCR or a copy shop?
Direct liability for creating playback copies
The plaintiffs charged that Cablevision violated its reproduction right by creating copies for playback to customers. The question here is who made the copies. "If it is Cablevision, plaintiffs’ theory of direct infringement succeeds; if it is the customer, plaintiffs’ theory fails because Cablevision would then face, at most, secondary liability, a theory of liability expressly disavowed by plaintiffs."
The authority here is Religious Technology Center v. Netcom On-Line Communications Services (907 F. Supp. 1361 (N.D. Cal. 1995). In Netcom, the district court held that even though the Copyright Act imposes strict liability for unauthorized reproduction, "there should still be some element of volition or causation." In Netcom there was none: the defendant ISP's system automatically copied the content.
The Fourth Circuit in CoStar Group, Inc. v. LoopNet, Inc. (373 F.3d 544, 4th Cir., 2004) referred to Netcom, holding:
There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself of the copyright owner.
And these holdings are not limited to Internet situations, as the Cablevision court held. As a general, technology-agnostic rule, direct infringement of the reproduction right requires volitional conduct.
Whose conduct?
The question was, whose volitional conduct? Did Cablevision volitionally cause the reproduction by designing and building the R-DVR system? Or do consumers cause the reproduction to occur, in which case the cable company is off the hook. The court analogized the system to a VCR or DVR. Whose conduct causes a program to be copied onto a VCR -- the machine manufacturer, the tape manufacturer or the consumer? Clearly the court held, the consumer.
We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.
The district court analogized to a copy shop that makes copies of professors' course packages. It is clear that copy shops are directly liable for unauthorized reproduction, even though done on a customer's orders. The difference the Second Circuit said, is that the copy shop case involves a human, who is capable of volitional action, while this case involves a command issued to a machine. No human at Cablevision is involved. If Cablevision is a copy shop, it's a self-serve shop that provides access to machines but no personal service.
Contributory liability
Even though the plaintiffs disavowed contributory liability in their case, that is the only basis for finding Cablevision liable, the court found. In Sony Corp. of America v. Universal City Studios, Inc. (464 U.S. 417, 1984), the Supreme Court didn't impose secondary liability on Sony but said it would be "just" to impose secondary liability on a party in a "position to control" the infringing uses of another.
While it may be possible that a party could so contribute to the illegal copying that it could be said to be doing the copying, that is not the case with Cablevision, the court concluded. Whatever contribution Cablevision makes to customer copying of programming, it does not rise to the level of direct infringement. Next ... the public performance claim ...