May It Please The Court

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Quote of the Day - I am terrified at the thought that so much hideous and bad music will be put on records forever. - Arthur Sullivan
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Copyright Issues Face Rapidly Changing Technology Remote DVR Copiers OK For Now

We know the DVR (Digital Video Recorder) that's attached to your TV doesn't infringe the copyrights held by movie companies and other Hollywood companies.  Personal DVRs, like Tivo's unit, constitute fair use by individuals.  Until yesterday, however, we were still up in the air over R-DVRs or Remote Digital Video Recorder, such as the one offered by Cablevision.

Well, we knew the lower court issued an injunction against it, but it was up on appeal and just decided yesterday,  The case of The Cartoon Network v. CSC Holdings Inc. answers the question whether a remote DVR directly infringes so-called Hollywood copyrights.  The Second Circuit overturned the lower court decision holding that the remote DVR service infringed the Cartoon Network's copyrights.

Cablevision's system works differently than Tivo.  The latter is attached to your TV and the copy stays in your house.  The copy of the program you recorded on Cablevision's system, however, is stored on a hard drive in Cablevision's office, not your home.  TCN claimed that fact made it different than the Tivo box, but the court of appeal disagreed.

The Second Circuit overturned the District Court opinion reasoning that it was the consumer that pushed the button to record the program, not Cablevision, so if anyone was infringing, it was the consumer.  The consumer isn't infringing if the recording is solely for private use.

What we don't know, however, is more interesting and perhaps more relevant to Cablevision, who right now is celebrating.  Perhaps not for long, though.

The Cartoon Network's Complaint inexplicably does not contain a cause of action for contributory copyright infringement, a legal theory specifically excluded by the Second Circuit from its ruling:  contributory copyright infringement.  Sure, Cablevision isn't the one pushing the button to infringe on the copyright, but it is contributing the means to accomplish the copyright infringement.

Hint here:  when the Court identifies a particular legal theory by name and says it's not ruling on that point, it's saying one of several things, but typically it goes something like this, "Hey guys over there at the Cartoon Network, get with the program.  If you had just plead your case right, then we would have found for you."  After all, with Fonovisa v. Cherry Auction, which was set up, briefed and argued by my partner, Craig Lindberg, ruling on the issue of contributory copyright infringement, the Courts have already given copyright attorneys a road map. 

Let me explain.  In the nationwide precedent-setting case of Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996), the Ninth Circuit found swap meet owners liable for vicarious and contributory copyright and trademark infringement when counterfeit merchandise such as must casette tapes was sold by independent vendors at swap meets.  The appellate court determined the swap meet owners sufficiently controlled their venues enough to know whether copyright and trademark violations were occurring, and they had an indirect financial stake in sales of the illegally infringing products.

The Court recognized this copyright and trademark infringement case was the first to reach the appellate level, and it ultimately became the precedent that was used to shut down the Napster file-sharing service.  Fonovisa owned copyrights and trademarks for Latin music recordings as well as the Fonovisa record label.  Fonovisa sued Cherry Auction in 1993, but initially lost at the federal district court level. On appeal, the Ninth Circuit reversed this lower court ruling and held the Cherry Auction swap meet liable for Fonovisa's damages. 

Sure the Cartoon Network can appeal to the United States Supreme Court, but the question of direct copyright infringement is not the interesting one to pursue, and MIPTC predicts SCOTUS won't take TCN's petition for certiorari.  Presumably, TCN will go back to the drawing board and discover the theory they missed the first time around - contributory copyright infringement.

Posted by J. Craig Williams on Tuesday, August 05, 2008 at 01:01 Comments (1)


Comments by Brad E, from United States on Friday, August 08, 2008 at 17:16 - IP Logged
How can it be contributory copyright infringement if there is no copyright infringement to contribute to?
"The consumer isn''t infringing if the recording is solely for private use."
If Cablevision is liable on this basis then so is Tivo, etc. The sole issue is whether Cablevision is liable for hosting the content on its servers, which the DMCA holds, they are not.

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