Cartoon Network, LP v. CSC Holdings, Inc.
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OR:

''Cartoon Network, LP v. CSC Holdings, Inc.'', 536 F.3d 121 (2nd Cir., 2008),
Cartoon Network, LP v. CSC Holdings, Inc.
'', 536 F.3d 121 (2d Cir. 2008).
was a
United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
decision regarding
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
in the context of DVR (digital video recorder) systems operated by cable television service providers. It is notable for partially overturning the
Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
precedent ''
MAI Systems Corp. v. Peak Computer, Inc. ''MAI Systems Corp. v. Peak Computer, Inc.'', 991 F.2d 511 (9th Cir. 1993), was a case heard by the United States Court of Appeals for the Ninth Circuit which addressed the issue of whether the loading of software programs into random-access memo ...
'', regarding whether a momentary data stream is a "copy" per copyright law.''MAI Systems Corp. v. Peak Computer, Inc.''
991 F. 2d 511
(9th Cir,, 1993).
In this case,
Cablevision Cablevision Systems Corporation was an American cable television company with systems serving areas surrounding New York City. It was the fifth-largest cable provider and ninth-largest television provider in the United States. Throughout its ex ...
, a cable television provider, sought to implement a DVR service for its subscribers, allowing them to create copies of programs to be replayed at a later time. A consortium of copyright holders in the television and film industries sued for direct
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
on the grounds of unlawful copying and public performance. The Second Circuit ruled that the DVR service did not constitute infringement.


Background

Cablevision, a cable television provider, announced the development of a "Remote Storage DVR" ( RS-DVR) service in 2006. Similar in operation to a traditional digital video recorder (DVR), Cablevision's DVR allowed customers to pause, record, replay, and rewind previously recorded content. Unlike traditional DVRs, which require an appliance containing a hard drive to be placed in the home of the subscriber, the Cablevision DVR stored content on servers at company facilities. To implement the DVR service, Cablevision streamed their existing digital television programming through a second server, which identified requested content, then copied this content and held the copy for a brief period before transmitting it to the subscriber for their later retrieval. At various points in the system, content was buffered for brief durations (0.1 and 1.2 seconds respectively). Content requested by a particular subscriber was stored separately and independently for that person and a replay option was only offered to them. Upon announcing the new service, Cablevision was sued for direct copyright infringement by a consortium of television and movie copyright holders including
Turner Broadcasting Turner Broadcasting System, Inc. (alternatively known as Turner Entertainment Networks from 2019 until 2022) was an American television and media conglomerate. Founded by Ted Turner and based in Atlanta, Georgia, it merged with Time Warner (lat ...
and its subsidiaries
Cartoon Network Cartoon Network (often abbreviated as CN) is an American cable television channel owned by Warner Bros. Discovery. It is a part of The Cartoon Network, Inc., a division that also has the broadcasting and production activities of Boomerang, Car ...
and
CNN CNN (Cable News Network) is a multinational cable news channel headquartered in Atlanta, Georgia, U.S. Founded in 1980 by American media proprietor Ted Turner and Reese Schonfeld as a 24-hour cable news channel, and presently owned by ...
;
Twentieth Century Fox 20th Century Studios, Inc. (previously known as 20th Century Fox) is an American film studio, film production company headquartered at the Fox Studio Lot in the Century City area of Los Angeles. As of 2019, it serves as a film production arm o ...
;
NBCUniversal NBCUniversal Media, LLC is an American multinational mass media and entertainment conglomerate corporation owned by Comcast and headquartered at 30 Rockefeller Plaza in Midtown Manhattan, New York City, United States. NBCUniversal is primari ...
subsidiaries
NBC The National Broadcasting Company (NBC) is an Television in the United States, American English-language Commercial broadcasting, commercial television network, broadcast television and radio network. The flagship property of the NBC Enterta ...
and
Universal Studios Universal Pictures (legally Universal City Studios LLC, also known as Universal Studios, or simply Universal; common metonym: Uni, and formerly named Universal Film Manufacturing Company and Universal-International Pictures Inc.) is an Ameri ...
;
Paramount Pictures Paramount Pictures Corporation is an American film and television production company, production and Distribution (marketing), distribution company and the main namesake division of Paramount Global (formerly ViacomCBS). It is the fifth-oldes ...
;
Disney The Walt Disney Company, commonly known as Disney (), is an American multinational mass media and entertainment conglomerate headquartered at the Walt Disney Studios complex in Burbank, California. Disney was originally founded on October ...
and its subsidiary
ABC ABC are the first three letters of the Latin script known as the alphabet. ABC or abc may also refer to: Arts, entertainment, and media Broadcasting * American Broadcasting Company, a commercial U.S. TV broadcaster ** Disney–ABC Television ...
; and
CBS CBS Broadcasting Inc., commonly shortened to CBS, the abbreviation of its former legal name Columbia Broadcasting System, is an American commercial broadcast television and radio network serving as the flagship property of the CBS Entertainm ...
. The consortium sued only for
declaratory relief A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal mat ...
and
injunctive relief An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
on the grounds of direct copyright infringement, excluding from consideration the topic of
contributory copyright infringement Contributory copyright infringement is a way of imposing secondary liability for infringement of a copyright. It is a means by which a person may be held liable for copyright infringement even though he or she did not directly engage in the infringi ...
. In its response, Cablevision waived any potential defense based on
fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
.


District court ruling

The case was first heard at the
District Court for the Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a United States district court, federal trial court whose geographic jurisdiction encompasses eight counties of New York (state), New York ...
in 2007, with Twentieth Century Fox as the lead plaintiff.''Twentieth Century Fox Film v. Cablevision Sys''.
478 F. Supp. 2d 607
(S.D.N.Y., 2007).
The plaintiff entertainment companies claimed that the Cablevision DVR service enabled copyright infringement because: the buffering of streaming data, necessary for the DVR service's operation, constituted the creation of unauthorized copies to be stored on the company's servers, while transmitting those copies to subscribers constituted unauthorized public performance under American copyright law. Cablevision replied that the copies constituted ''
de minimis ''De minimis'' is a Latin expression meaning "pertaining to minimal things", normally in the terms ''de minimis non curat praetor'' ("The praetor does not concern himself with trifles") or ''de minimis non curat lex'' ("The law does not concern i ...
'' use of the original programs because they only existed very briefly during the buffering process. Furthermore, since the creation of copies for later viewing was initiated by subscribers, Cablevision could at most be liable for
contributory copyright infringement Contributory copyright infringement is a way of imposing secondary liability for infringement of a copyright. It is a means by which a person may be held liable for copyright infringement even though he or she did not directly engage in the infringi ...
, which was not at issue in the complaint; and since each copy could only be viewed by the subscriber that requested it, the transmission of the content did not fall under the definition of "public performance" in copyright law. The district court ruled that buffered copies of programs could themselves be copied again by unauthorized users, and since they included entire original programs, they could not be considered ''de minimis'' copies. This finding was supported by the 1993 precedent '' MAI Systems v. Peak Computer'', which addressed much earlier practices in which computer repair technicians made temporary copies of files when fixing a particular computer. The district court also found that Cablevision enabled the creation of each copy because it was stored on the company's equipment; while different copies of the same program, if requested by multiple subscribers, constituted public performance because as digital copies they were identical. Thus, the district court ruled in favor of the entertainment companies, accepting their argument that the temporary buffering copies of programs were unauthorized copies under copyright law. The court issued an
injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
that prohibited Cablevision from operating its proposed DVR service.


Circuit court ruling

Cablevision appealed the ruling to the
Second Circuit Court of Appeals The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
in 2008. This time, Cartoon Network was the lead respondent. The circuit court ultimately reversed the lower court's decision and ruled in favor of Cablevision. On the matter of temporary buffer copies of programs, the circuit court noted that the
Copyright Act of 1976 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...
requires an alleged unauthorized copy to be "fixed", meaning that it must be both "embodied in a copy or phonorecord" and perceivable "for a period of more than a transitory duration" (which the court denoted as the "embodiment" and "duration" requirements). The circuit court found the district court had relied too heavily on the embodiment requirement and did not properly consider the duration requirement. Hence, the circuit court rejected the lower court's reliance on ''
MAI Systems Corp. v. Peak Computer, Inc. ''MAI Systems Corp. v. Peak Computer, Inc.'', 991 F.2d 511 (9th Cir. 1993), was a case heard by the United States Court of Appeals for the Ninth Circuit which addressed the issue of whether the loading of software programs into random-access memo ...
'', which did not address copies of files that only exist for a very brief duration of time. This in turn disregarded the "transitory duration" requirement of the Copyright Act, and a buffer copy should be considered transitory. Cablevision's copies were known to exist for as long as 1.2 seconds, but the circuit court did not establish this duration of time as a boundary between "transitory" and "non-transitory". That boundary remains undefined in American copyright law.
Zohar Efroni - The Cartoon Network v. CSC Holdings & Cablevision Systems
' Stanford Law School: Center for Internet and Society.
Since the parties to the case had already agreed not to argue the matter of
contributory copyright infringement Contributory copyright infringement is a way of imposing secondary liability for infringement of a copyright. It is a means by which a person may be held liable for copyright infringement even though he or she did not directly engage in the infringi ...
, the circuit court next considered whether the buffer copies of programs for the DVR service constituted direct infringement. This required determining who created the copies. While the district court had ruled that Cablevision created the copies, albeit at the request of a specific consumer, the circuit court disagreed with this analysis. Per the precedent '' Religious Technology Center v. Netcom On-Line Communications Services'', which established the requirement for "some element of volition or causation" in the creation of a copy, the circuit court found that while Cablevision had some involvement in the process via managing the technology that enabled the copying, its involvement was not "sufficiently proximate" to constitute direct copyright infringement. The circuit court also disagreed with the district court's finding that the copied programs were transmitted to the public, and instead noted that each copy would only be sent to a particular subscriber who requested it. Thus, the practice did not constitute "public performance" that must be authorized under copyright law. Instead the practice of a single subscriber viewing a program at a later time was found to be
time shifting In broadcasting, time shifting is the recording of programming to a storage medium to be viewed or listened to after the live broadcasting. Typically, this refers to TV programming but it can also refer to radio shows via podcasts. In recent year ...
, which is allowable per the Supreme Court precedent ''
Sony Corp. of America v. Universal City Studios, Inc. ''Sony Corp. of America v. Universal City Studios, Inc.'', 464 U.S. 417 (1984), also known as the “Betamax case”, is a decision by the Supreme Court of the United States which ruled that the making of individual copies of complete television s ...
''.


Impact

This ruling is considered to be an important precedent for the applicability of American copyright law toward modern practices of on-demand viewing of entertainment programs, and modern technologies that enable such consumer behavior by temporarily copying copyrighted digital files but not keeping or redistributing them.David Johnson,
DOJ Asks U.S. Supreme Court Not to Hear Case with Potential Major Impact on Cloud-Computing Copyright Issues
'', Digital Media Lawyer Blog (June 3, 2009).
However, the ruling has also been criticized for encouraging abuse of copyright law in its failure to draw clear boundaries when measuring the duration of "transitory" or "temporary" copies of copyrighted digital files.


References

{{USCopyrightActs United States copyright case law United States Court of Appeals for the Second Circuit cases 2008 in United States case law Cartoon Network Cablevision