Differences that Don't Distinguish: Cablevision Loses Copyright Case on Networked DVRs

Today, a judge in the Southern District of New York ruled against Cablevision in a copyright infringement suit. PK’s initial statement on the outcome is here. Apparently, it’s now a crime to provide digital video recorders to your customers—at least if they’re operated remotely. This decision not only goes against any logical application of copyright law, it shows how copyright law is being wielded not to encourage creativity, or even to enforce artists’ rights. Instead, it’s being used as a tool to scrape more money from wherever the studios can get some.

Cablevision was providing its customers with a service it called a remote-storage DVR system. Basically, Cablevision provided users with a DVR, which they could program to record shows for later viewing. The only difference between this service and a set-top box like a TiVo is the fact that the hard drive itself was stored on Cablevision property. Users could program the DVR from their homes, and whatever they had chosen to record would be played back to them, and only them. In essence, Cablevision put an extra-long cable on a DVR and housed it on its own property.

But what a difference a few miles of cable can make, at least in the view of one federal district judge. According to the opinion, this difference makes Cablevision liable for reproducing and transmitting the programs without permission. The court says that when a user programs the remote DVR to record a show and then plays it back, Cablevision is the one making an infringing copy, and an unauthorized infringing transmission. Even stranger, the court found that buffer copies, made in the course of digital recording and never seen by anyone, are infringing.

The decision itself notes the similarity between the remote DVR and a regular one: customers can only record one show at a time, can only record shows from channels they already subscribe to, and the programs can’t be transferred from one DVR to another.

Despite these similarities, the judge still found the remote DVRs infringing. On a somewhat chilling note, he comments that Cablevision hasn’t shown that set-top DVRs are legal. (This might well cause TiVo and other set-top DVR makers to lose some sleep.) But the judge goes on to draw other distinctions between remote and set-top DVRs. For instance, he points out that, in order for the networked DVR to operate, Cablevision needs to manipulate signals in order to record the shows a user has selected.

This is a distinction without a difference. Whether a piece of software manipulates the content on Cablevision’s property, or on top of my TV set, the end result for the consumer, the distributor, and the artist are all the same. A program is broadcast. It is recorded at the user’s direction. It is stored, and then time-shifted. Where that occurs has no relevance as to who controls it. In both cases, the software was coded by the manufacturer; in both cases it acts upon the content at the direction of the user.

However, the judge likens the networked DVR to a video-on-demand platform, and as such, decides that Cablevision has control and is the one making infringing copies.

The problem with this reasoning is that no matter the technological means used to make a recording, the real question as to copyright centers not on the details of the machinery, but on how the rights in a work are affected.

The court’s ruling on buffer copies illustrates the same sort of faulty thinking. In the course of recording programs, the system creates “buffer copies” of the programming. Buffer copies are contained within the system and are not viewable to anyone. In fact, making incidental copies is simply how digital technology works—when you send an email to someone, you aren’t giving them a string of bits while you lose that same string—you’re making a copy. Yet what matters is not how many copies are made along the way—it’s what ends up being fixed in a tangible medium. Increasing the number of mirrors in a camera isn’t going to increase an infringing photographer’s liability—the only copy that matters is the one fixed on film and printed.

The same could be said for the ruling on unauthorized transmissions. Because the recording is stored at Cablevision’s location, and then transmitted to the user after the broadcast, the judge held that this was an “unauthorized performance” of the works—as though Cablevision were a broadcast pirate. Yet the net effect of Cablevision’s actions are no different than if users had physical DVRs of their own. Nor would the plaintiffs be in a better position if that were the case.

Let’s pull back and look at the motivations behind this lawsuit. In the end, this decision does nothing to curb piracy. Providing offsite DVRs does not reduce market for television, pay-per-view movies, or DVD sales or rentals one whit. It merely means a shift from one type of DVR to another. Ultimately, the decision discourages innovation.

Why did Cablevision create the new technology? It’s probably easier for them, since they don’t have to pay shipping fees on devices, and can save money on maintenance by centralizing the location of the storage. Does that make a difference in how works are used? Or affect the market for copyrighted works? Does it affect copyright law at all? No. But now, if Cablevision decides to make use of its new technology, the studios get a cut, despite providing no more content than they were before. Cablevision creates a new way of doing things, which harms no one, and for their efforts, get to pay more money to the studios.

Alternatively, to avoid all of this further wrangling, Cablevision might just ship physical DVRs. And then what? No one’s better off, with no new technology, and no greater or lesser revenue for artists.

See PK’s press release about this decision here.