Advanced Copyright Issues on the Internet - Fenwick & West LLP

ecorded, the appropriate packets could be retrieved from the buffer memory and copied to thecustomer’s designated hard drive storage space on the Arroyo server. 152The RS-DVR service allowed customers to request that a program be recorded in one oftwo ways. The customer could navigate an on-screen program guide and select a future programto record, or while watching a program, the customer could press a “record” button on a remotecontrol. In response, the Arroyo server would receive a list of recording requests, find thepackets for the particular programs requested for recording, then make a copy of the relevantprogram for each customer that requested it be recorded. A separate copy would be stored ineach customer’s designated hard drive storage space on the Arroyo server. If no customerrequested that a particular program be recorded, no copy of that program was made on the harddrives of the Arroyo server. When the customer selected a recorded program for playback, theArroyo server would locate the copy of the desired program stored on the customer’s designatedhard drive storage space, then cause the program to be streamed out. The stream containing theprogram would be transmitted to every home in the node where the requesting customer waslocated, but only the requesting set-top box would be provided the key for decrypting the streamfor viewing. 153The plaintiffs alleged direct copyright infringement based on Cablevision’s creation ofthe copies on the hard drives of the Arroyo servers and of the buffer copies. AlthoughCablevision did not deny that these copies were being made, it argued that it was entirely passivein the process and the copies were being made by its customers. It also argued, based on theSony case, that it could not be liable for copyright infringement for merely providing customerswith the machinery to make the copies. 154The court rejected these arguments, ruling that the RS-DVR was not merely a device, butrather a service, and that, by providing the service, it was Cablevision doing the copying. Inparticular, the court found the relationship between Cablevision and RS-DVR customers to besignificantly different from the relationship between Sony and VCR users. Unlike a VCR, theRS-DVR did not have a stand-alone quality. Cablevision retained ownership of the RS-DVRset-top box, and the RS-DVR required a continuing relationship between Cablevision and itscustomers. Cablevision not only supplied the set-top box for the customer’s home, but alsodecided which programming channels to make available for recording, and housed, operated, andmaintained the rest of the equipment that made the RS-DVR’s recording process possible.Cablevision also determined how much memory to allot to each customer and reserved storagecapacity for each customer on a hard drive at its facility. Customers were offered the option ofacquiring additional capacity for a fee. 155In sum, the court concluded that the RS-DVR was more akin to a video-on-demand(VOD) service than to a VCR or other time-shifting device. The court noted that the RS-DVR152153154155Id. at 613-14.Id. at 614-16.Id. at 617-18.Id. at 618-19.- 45 -