Advanced Copyright Issues on the Internet - Fenwick & West LLP

describes the status of transition. Thus, when the copyrighted software isdownloaded onto the computer, because it may be used to serve the computer orthe computer owner, it no longer remains transitory. This, however, is unlike anISP, which provides a system that automatically receives a subscriber’s infringingmaterial and transmits it to the Internet at the instigation of the subscriber. 27A 2008 decision of the Second Circuit, The Cartoon Network LP v. CSC Holdings,Inc., 28 addressed the issue of RAM copying in considerable detail, ruling that buffer copies inRAM made by Cablevision Systems Corp. in the course of converting channels of cableprogramming from the head end feed into a format suitable for storage of individual programs bya network digital video recording service upon customer demand were not fixed for sufficientduration to constitute “copies.” 29 Cablevision made the buffer copies in conjunction withoffering its “Remote Storage” Digital Video Recorder (RS-DVR) service that enabledCablevision customers to record copies of particular programs, like a normal DVR, but to storethe recorded programs on Cablevision’s servers rather than on a DVR device at their homes.Cablevision created buffer copies, one small piece at a time, of the head end programming in twobuffers – a primary ingest buffer and a Broadband Media Router (BMR) buffer – even if nocustomer requested that a copy of particular programming be stored on its behalf in the RS-DVRservice. The primary ingest buffer held no more than 0.1 seconds of each incoming channel’sprogramming at any moment. The data buffer in the BMR held no more than 1.2 seconds ofprogramming at any time. The plaintiffs argued that these buffer copies made Cablevision adirect infringer of their copyrights. 30The lower court found Cablevision a direct infringer largely in reliance on MAI and casesfollowing it. 31 The Second Circuit, however, reversed. The court noted that to satisfy thestatutory definition of “copies,” two requirements must be met – an “embodiment” requirement(embodiment in a tangible medium from which it can be perceived or reproduced) and a“duration” requirement (embodiment for a period of more than transitory duration). The SecondCircuit found that the district court had mistakenly limited its analysis to the embodimentrequirement, and that its reliance on MAI and cases following it was misplaced. 32In general, those cases conclude that an alleged copy is fixed without addressingthe duration requirement; it does not follow, however, that those cases assume,much less establish, that such a requirement does not exist. Indeed, the durationrequirement, by itself, was not at issue in MAI Systems and its progeny.…Accordingly, we construe MAI Systems and its progeny as holding that loading aprogram into a computer’s RAM can result in copying that program. We do not272829303132Id.536 F.3d 121 (2d Cir. 2008), cert. denied sub nom. CNN, Inc. v. CSC Holdings, Inc., 2009 U.S. LEXIS 4828(2009).Id. at 129-30.Id. at 123-24, 127.Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F. Supp. 2d 607, 621-22 (S.D.N.Y. 2007).Cartoon Network, 2008 U.S. App. LEXIS 16458 at *14-16.- 19 -