Advanced Copyright Issues on the Internet - Fenwick & West LLP

service was in fact based on a modified VOD platform. With both systems, Cablevision decidedwhat content to make available to customers for on-demand viewing. As in VOD, the number ofavailable pathways for programming delivery was limited; if there were none available, thecustomer would get an error message or busy signal. Thus, in its architecture and deliverymethod, the court concluded that the RS-DVR bore a striking resemblance to a VOD service – aservice that Cablevision provided pursuant to licenses negotiated with programming owners. 156Accordingly, the court ruled that a reasonable fact finder could conclude only that the copying atissues was being done not by the customers, but by Cablevision itself. 157With respect to the buffer copies, Cablevision argued that the buffer copies were notsufficiently fixed to be cognizable as “copies” under copyright law. The court rejected thisargument, noting that the buffer copies were sufficiently permanent to make the Arroyo harddisk copies from, and were therefore capable of being reproduced, as required by the definitionof “fixation.” The court also cited the numerous court decisions, and the <strong>Copyright</strong> Office’sAugust 2001 report on the DMCA, concluding that RAM copies are “copies” for purposes of thecopyright act. Accordingly, the court concluded that summary judgment of direct infringementwas warranted with respect to both the Arroyo server copies and the buffer copies. 158Finally, the court ruled, based on similar logic, that Cablevision was engaged ininfringing transmissions and public performances to its customers. 159 The court noted that,“where the relationship between the party sending a transmission and party receiving it iscommercial, as would be the relationship between Cablevision and potential RS-DVR customers,courts have determined that the transmission is one made ‘to the public.’” 160On appeal, the Second Circuit reversed in The Cartoon Network LP v. CSC Holdings,Inc. 161 The Second Circuit’s rulings with respect to the issue of buffer copies are discussed inSection II.A.2 above. With respect to the copies created on the hard drives of the Arroyoservers, the court noted that Netcom and its progeny direct attention to the volitional conductthat causes the copy to be made. In the case of an ordinary VCR, the court noted that it seemedclear that the operator of the VCR – the person actually pressing the button to make therecording, supplies the necessary element of volition, not the manufacturer of the device. Thecourt concluded that the RS-DVR customer was not sufficiently distinguishable from a VCRuser to impose liability as a direct infringer on a different party for copies that were madeautomatically upon that customer’s command. The court distinguished cases holding liable acopy shop making course packs for college professors, finding a significant different betweenmaking a request to a human employee, who then voluntarily operates the copying system tomake the copy, and issuing a command directly to a system, which automatically obeys156157158159160161Id. at 619.Id. at 621.Id. at 621-22.Id. at 622-23.Id. at 623.536 F.3d 121 (2d Cir. 2008), cert. denied sub nom. CNN, Inc. v. CSC Holdings, Inc., 2009 U.S. LEXIS 4828(2009).- 46 -