Cartoon Network, LP v. CSC Holdings, Inc.
automatically overwritten. Because the copyrighted works were not
2008 | Walker, Sack, Livingston | Fixation
PETITIONER/S: The Cartoon Network Lp, Lllp and Cable News Net-
Work et al.
RESPONDENT/S: CSC Holdings, Inc.
SUMMARY:
Cartoon Network et al alleged that respondent cable company's operation
of a remote storage digital video recorder system (RS-DVR) directly
infringed plaintiffs' rights to reproduce and publicly perform their
copyrighted works. Cartoon Network claimed that the buffering of
streaming data, necessary for the RS-DVR's operation, constituted the
creation of unlicensed copies in RAM and that the persistence of complete
copies on Cablevision hard drives also constituted the creation of
unlicensed copies.
WON Cablevision's proposed DVR system directly infringed Cartoon
Network, et al.'s rights of reproduction and public performance on any of
the three claimed grounds. – NO
On the topic of content buffering, and more broadly on the topic of the
creation of RAM copies being infringing, the Second Circuit court noted
that the Copyright Act requires two conditions for a work to be "fixed"
and hence infringing. The work must be both:
o "embodied in a copy or phonorecord" and
o perceivable "for a period of more than a transitory
duration." (which the court denotes as the "embodiment"
and "duration" requirements).
It found the District Court relied too heavily the embodiment requirement
and did not properly consider the duration requirement. While the data was
embodied in the buffer, the duration was sufficiently small to be considered
transitory.
The District Court held that the acts of buffering in the operation of the
RS-DVR did not create copies within the meaning of the Copyright Act
because data resided in no buffer for more than 1.2 seconds before being
embodied in the buffers for a period of more than transitory duration, they
were not fixed in the buffers. Thus, the acts of buffering did not violate
plaintiffs' exclusive right of production under Copyright Act. The court
concluded that copies produced by the RS-DVR system were made by the
RS-DVR customers and that defendant's contribution to that reproduction
by providing the system did not warrant the imposition of direct liability
for infringement of plaintiffs' reproduction right.
Because each RS-DVR playback transmission was made to a single
subscriber using a single unique copy produced by that subscriber, the
court concluded that such transmissions were not performances "to the
public" within the meaning of the Copyright Act therefore, the playback of
RS-DVR copies did not infringe plaintiffs' exclusive right of public
performance under the Copyright Act.
DOCTRINE:
There are two conditions for a work to be "fixed" and hence infringing.
The work must be both:
o "embodied in a copy or phonorecord" and
o perceivable "for a period of more than a transitory
duration." (which the court denotes as the "embodiment"
and "duration" requirements).
FACTS:
• Around March 2006, Cablevision, a cable television provider,
announced the development of a “Remote Storage DVR” (RS-
DVR). Similar in operation to a traditional digital video recorder
(DVR), Cablevision’s DVR allowed customers to pause, record, and
replay and/or rewind previously recorded content. Unlike traditional
DVRs, which require an appliance containing a hard drive to be
placed in the home of the subscriber, the Cablevision DVR stored
content on servers at Cablevisions broadcast facilities.
• To implement the DVR service, Cablevision streamed their existing
digital television system through a second server, which identified
requested content, then copied and streamed this content onto
permanent storage for later retrieval. At various points in the system,
content was buffered for periods of several seconds (0.1 and 1.2
seconds respectively). Notably, content requested by a particular
 user was stored separately and independently for that user and
replayed only to the user who requested it.
• Cablevision announced their intention to release the service and
were sued for direct copyright infringement by a consortium of
television and movie copyright holders including Cartoon Network,
Twentieth Century Fox, Universal Studios, Paramount Pictures,
Disney, CBS, ABC, NBC, and Turner Broadcasting. The
consortium sued only for declaratory relief and injunctive relief on
the grounds of direct copyright infringement, excluding from
consideration the topic of contributory copyright infringement. In
their response, Cablevision waived any defense based on fair use.
District Court:
Cartoon Network, et al. claimed copyright infringement on three grounds:
• The buffering of streaming data, necessary for the RS-DVR's
operation, constituted the creation of unlicensed copies in RAM.
• The persistence of complete copies on Cablevision hard drives also
constituted the creation of unlicensed copies.
• Transmitting hard drive copies to RS-DVR users in response to a
"play" request constituted unlicensed public performance
Cablevision argued that:
• Buffered content was de minimis because of the extremely
limited duration and size of content storage
• The creation of hard drive copies was done by consumers, and
only facilitated by Cablevision, and that they were thus at most
guilty of contributory infringement (not at issue in the case).
• The transmission of hard drive copies was made only to the user
who requested content and to their home, not "to the public."
On consideration, the district court found:
• Buffered copies were fixed, following MAI Systems v. Peak
Computer, in so far as they were copyable.
• Buffering was not de minimus since the "aggregate effect of the
buffering" was to reproduce the entirety of the work.
• Due to the "continuing relationship" between Cablevision and the
volitional design of the system to copy content, Cablevision was the
maker of the hard drive copy even though the copy was
automatically made by the RS-DVR at the customers request.
• Transmission of hard drive copies constituted public performance
since Cablevision would transmit "the same program" to different
members of the public.
The district court awarded summary judgment to the plaintiffs and enjoined
Cablevision from operating the RS-DVR system.
Cablevision appealed to the Second Circuit Court of Appeals and the Circuit
Court reversed and vacated the judgment, and remanded the case in August
2008. The Circuit Court rejected the District Court's reasoning on all three
grounds.
ISSUE/S:
WON Cablevision's proposed DVR system directly infringed Cartoon
Network, et al.'s rights of reproduction and public performance on any of the
three claimed grounds. - NO
RATIO:
Buffering of Data
• (IMPT) On the topic of content buffering, and more broadly on the
topic of the creation of RAM copies being infringing, the Second
Circuit court noted that the Copyright Act requires two conditions
for a work to be "fixed" and hence infringing. The work must be
both:
o "embodied in a copy or phonorecord" and
o perceivable "for a period of more than a transitory
duration." (which the court denotes as the "embodiment"
and "duration" requirements).
• It found the District Court relied too heavily the embodiment
requirement and did not properly consider the duration requirement.
• In this, the Circuit Court noted the lower court's reliance on MAI
Systems Corp. v. Peak Computer, Inc., a Ninth Circuit case which
 held the creation of RAM copies to be infringing. The Circuit Court
found that this case did not directly address the duration requirement
and showed only the necessity of the embodiment criteria, not its
sufficiency.
• Indeed, the alternative interpretation, as the court points out, would
read the "transitory duration" language out of the copyright act.
• The Circuit Court thus held that while the data was embodied in the
buffer, the duration was sufficiently small to be considered
transitory. As has been pointed out in editorials, the court does not,
in this decision, establish 1.2 seconds as a benchmark for
determining transitory duration and the maximum duration of
retention under which a work is transitory remains an unclear area
or copyright law.
• BASICALLY: The court held that the acts of buffering in the
operation of the RS-DVR did not create copies within the meaning
of the Copyright Act because data resided in no buffer for more than
1.2 seconds before being automatically overwritten. Because the
copyrighted works were not embodied in the buffers for a period of
more than transitory duration, they were not fixed in the buffers.
Thus, the acts of buffering did not violate plaintiffs' exclusive right
of production under Copyright Act. The court concluded that copies
produced by the RS-DVR system were made by the RS-DVR
customers and that defendant's contribution to that reproduction by
providing the system did not warrant the imposition of direct
liability for infringement of plaintiffs' reproduction right.
• Because each RS-DVR playback transmission was made to a single
subscriber using a single unique copy produced by that subscriber,
the court concluded that such transmissions were not performances
"to the public" within the meaning of the Copyright Act therefore,
the playback of RS-DVR copies did not infringe plaintiffs' exclusive
right of public performance under the Copyright Act.
Direct Liability for Creating the Playback Copies
• As identified in the District Court, the dispositive question in
determining liability for direct copyright infringement with respect
to the copies stored on hard drives in the Cablevision RS-DVR was
who made the copies. The District Court held that Cablevision made
the copies, albeit at the customer's request.
• The Circuit Court disagrees. Both parties in the case cited a line of
cases originating with Religious Technology Center v. Netcom On-
Line Communications Services, which established the requirement
for "some element of volition or causation" in the creation of a copy
for it to be infringing. Here, the Circuit Court found that while
Cablevision engaged in some volitional conduct by creating a
system which exists only to reproduce conduct, it was not
"sufficiently proximate" to the act of copying to be liable for direct
infringement.
• The Circuit Court held that the claims brought by Cartoon Network,
et al., were more relevant to claims of contributory infringement,
which was not at issue in the case.
Transmission of RS-DVR Playback
• In contrast to the District Court, which held that the determination
of a transmission being made to the public should be made on the
grounds of the audience of the underlying work, the Circuit Court
held such a determination should be made considering only on the
potential audience for the particular copy of a work. As Cablevision
transmitted only the copy requested and recorded "by" a particular
user to that user on that receiver used to request the copy, the
transmission was not "to the public."
RULING:
The Circuit Court held that Cablevision's proposed DVR system did not
directly infringe Cartoon Network, et al.'s rights of reproduction and
public performance on any of the three claimed grounds. They thus
reversed, vacated, and remanded the District Court's decision. It is also
perceived to be especially important with respect to establishing copyright
liability protection for cloud-computing and remote-storage providers.