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Performance anxiety - August 4, 2008

Couple of quick thoughts from an initial reading of the Second Circuit's opinion in the Cablevision network-DVR case:

• The media company plaintiffs in the case very pointedly did not charge Cablevision with contributory copyright infringement, in part out of fear of running smack into the wall of the Supreme Court's Betamax precedent. Instead, their theory in the case was that Cablevision was a direct infringer because its Remote Storage DVR (RS-DVR) system actually made and hosted the copies in question, not a set-top device controlled by a subscriber. Having now lost that point, they're running out of theories of liability on which to try to gain leverage over the course of technological innovation. Ironically, the Second Circuit strongly implies the plaintiffs would have been better off going for secondary liability, distinguishing the facts in the Cablevision case from those in Betamax, noting in particular Cablevision's "ongoing relationship" with its RS-DVR subscribers.

• The media companies may now have an even bigger problem on their hands with the court's analysis of their public performance claim. In rejecting the plaintiff's argument that the transmission of recordings from Cablevision's servers back to the subscriber who ordered them made constitutes an unlicensed public performance of the work, the court found that the language of the copyright statute "obviously contemplates the existence of non-public transmission," which are, presumably, beyond the scope of the copyright owner's exclusive rights. I'm no lawyer, but that smells like a pretty big can of worms for content owners, opening up the possibility of all sorts of unlicensed private transmissions from remote storage facilities.

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