Advanced Copyright Issues on the Internet - Fenwick & West LLP

(m) Parker v. GoogleIn Parker v. Google, 146 pro se plaintiff Gordon Parker was the owner of copyright in an e-book titled “29 Reasons Not To Be A Nice Guy.” He posted Reason # 6 on USENET. Parkerasserted that Google’s automatic archiving of this USENET posting constituted a directinfringement of his copyright. He also claimed that when Google produced a list of hyperlinksin response to a user’s query and excerpted his web site in that list, Google again directlyinfringed his copyrighted work. 147The district court rejected these claims. Citing the Costar and Netcom cases, the districtcourt held that “when an ISP automatically and temporarily stores data without humanintervention so that the system can operate and transmit data to its users, the necessary elementof volition is missing. The automatic activity of Google’s search engine is analogous. It is clearthat Google’s automatic archiving of USENET postings and excerpting of websites in its resultsto users’ search queries do not include the necessary volitional element to constitute directcopyright infringement.” 148On appeal, the Third Circuit affirmed in an unpublished decision. 149 The court noted that,“to state a direct copyright infringement claim, a plaintiff must allege volitional conduct on thepart of the defendant,” and Parker’s allegations failed to allege any volitional conduct on the partof Google. 150(n) The Cablevision CaseIn Twentieth Century Fox Film Corp. v. Cablevision Sys., 151 the district court ruled thatCablevision was liable for direct copyright infringement based on the offering of a networkdigital video recording system known as the “Remote-Storage DVR System” (RS-DVR), whichpermitted customers to record cable programs on central servers at Cablevision’s facilities andplay the programs back for viewing at home. The technology underlying the RS-DVR workedas follows. Cablevision took the linear programming signal feed received at its head end andreconfigured it by splitting the feed into a second stream, which was then reformatted through aprocess known as “clamping” to convert the bitrate of the stream into one that was moreefficient. In the process of clamping, portions of programming were placed into buffer memory.The stream was then converted into a number of single program transport streams, one channelper stream. The converted streams were then fed into a special set of “Arroyo” servers, which atany given moment in time, stored in a buffer three frames of video from each of the linearchannels carried by Cablevision, so that if a customer requested that a particular program be146147148149150151422 F. Supp. 2d 492 (E.D. Pa. 2006), aff’d, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).Id. at 496.Id. at 497.Parker v. Google, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).Id. at *6, 8.478 F. Supp. 2d 607 (S.D.N.Y. 2007).- 44 -