Advanced Copyright Issues on the Internet - Fenwick & West LLP

when it transmits to Cablevision, and Cablevision transmits its own performanceof the same work when it retransmits the feed from HBO. 247Accordingly, the Second Circuit concluded that a court must look downstream, ratherthan upstream or laterally, to determine whether any link in a chain of transmissions made by aparty constitutes a public performance, and should not examine the potential recipients of thecontent provider’s initial transmission to determine who was capable of receiving the RS-DVRplayback transmission. Because the RS-DVR system, as designed, made transmissions only toone subscriber using a copy made by that particular subscriber, the court concluded that theuniverse of people capable of receiving an RS-DVR transmission was the single subscriberwhose self-made copy was used to the create the transmission, and the transmissions through theRS-DVR system were therefore not public performances. 248 The court cautioned, however, thatits holding “does not generally permit content delivery networks to avoid all copyright liabilityby making copies of each item of content and associating one unique copy with each subscriberto the network, or by giving their subscribers the capacity to make their own individual copies.We do not address whether such a network operator would be able to escape any other form ofcopyright liability, such as liability for unauthorized reproductions or liability for contributoryinfringement.” 2496. Ringtones – In re Application of Cellco PartnershipIn In re Application of Celleco Partnership d/b/a Verizon Wireless, 250 the courtruled that the sale of ringtones by Verizon to its cell phone customers did not require payment toASCAP for a public performance license for the musical works embodied in the ringtones.ASCAP argued that Verizon engaged in public performances of the musical works when itdownloaded ringtones to its customers. It also argued that Verizon was both directly andsecondarily liable for public performances of musical works when its customers played ringtoneson their telephones upon incoming calls. 251The court rejected both these arguments. As to the first, citing the Cablevision casediscussed in the previous subsection, the court ruled that, because only one subscriber wascapable of receiving a particular transmission of a ringtone during download, such transmissionwas not itself made to the “public,” regardless of whether a download could be considered atransmission of a “performance” of the musical works in the ringtone. 252 The court did note that,247248249250251252Id. at 136.Id. at 137, 139. “If the owner of a copyright believes he is injured by a particular transmission of aperformance of his work, he may be able to seek redress not only for the infringing transmission, but also forthe underlying copying that facilitated the transmission. Given this interplay between the various rights in thiscontext, it seems quite consistent with the Act to treat a transmission made using Copy A as distinct from onemade using Copy B, just as we would treat a transmission made by Cablevision as distinct from an otherwiseidentical transmission made by Comcast.” Id. at 138.Id. at 139.663 F. Supp. 2d 363 (S.D.N.Y. 2009).Id. at 368.Id. at 371.- 70 -