The Second Circuit holds that this innovative device does not violate the Copyright Laws.
The case is Cartoon Network v. CSE Holdings, decided on August 4. The district court entered judgment for the plaintiffs, who argued that the RS-DVR would violate their rights to reproduce and publicly perform their copyrighted works. As the Second Circuit notes, the Copyright laws give the plaintiff the right “to reproduce the copyrighted work in copies,” and the right “to perform the copyrighted work publicly.” This new device arguably takes that control away from Cartoon Network. But Cartoon Network loses the case, after winning an injunction in the trial court.
Ruling in plaintiff's favor, the trial court compared the device to a copy shop "that makes course packs for college professors. In the leading case involving such a shop, for example, “[t]he professor [gave] the copyshop the materials of which the coursepack [was] to be made up, and the copyshop [did] the rest.” That analogy is not appropriate, however. The Court of Appeals reasons that "by selling access to a system that automatically produces copies on command, Cablevision more closely resembles a store proprietor who charges customers to use a photocopier on his premises, and it seems incorrect to say, without more, that such a proprietor 'makes' any copies when his machines are actually operated by his customers."
In other words, Cablevision is not responsible for customers who copy television programming for their own use.
Cartoon Network also argued that "Cablevision will violate the Copyright Act by engaging in unauthorized public performances of their works through the playback of the RS-DVR copies." That's because "The Act grants a copyright owner the exclusive right, “in the case of . . . motion pictures and other audiovisual works, to perform the copyrighted work publicly.” That argument does not fly. It's the customer, not Cablevision, which plays back the programming.
Relatedly, the Court took up whether the new device will violate Copyright Act's "transmit clause." For purposes of this case, that part of the law asks whether Cablevision is “transmit[ting] . . . a performance . . . of the work . . . to the public”? The answer is no. Summarizing plaintiff's argument, the Second Circuit writes:
according to plaintiffs, when Congress says that to perform a work publicly means to transmit. . . a performance. . . to the public, they really meant “transmit . . . the ‘original performance’ . . . to the public.” The implication of this theory is that to determine whether a given transmission of a performance is “to the public,” we would consider not only the potential audience of that transmission, but also the potential audience of any transmission of the same underlying original” performance.
The Court of Appeals rejects this argument, which ignores any possibility of a private viewing of the performance or broadcast. This argument also would make Cablevision liable through the acts of strangers who do what they wish with the broadcast. Summing up, the Court reasons:
Under plaintiffs’ interpretation, Cablevision would still be transmitting the performance to the public, solely because Comcast has transmitted the same underlying performance to the public. Similarly, a hapless customer who records a program in his den and later transmits the recording to a television in his bedroom would be liable for publicly performing the work simply because some other party had once transmitted the same underlying performance to the public. We do not believe Congress intended such odd results.