On June 29, 2009, the United States Supreme Court denied certiorari in the much-watched Cartoon Networks/ Cablevision case, bringing to a close a prolonged struggle over a “remote storage” digital video recording (DVR) system created by Cablevision to allow its customers to record and later access television programming “in the cloud,” that is, on and from Cablevision’s servers as opposed to a device in the home. CNN, Inc. v. CSC Holdings, Inc., 129 S. Ct. 2890 (2009). The denial lets stand the central ruling of the United States Court of Appeals for the Second Circuit that unauthorized reproductions of data, such as digital movie files, in computer buffers do not violate plaintiffs’ copyrights, as buffer replications are not infringing copies because they are not fixed “for a period of more than transitory duration.” Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), rev’g Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F. Supp. 2d 607 (S.D.N.Y. 2007).

The case was the subject of myriad amicus briefs, and in January 2009 the Supreme Court invited the United States government to express its views. In May, the Solicitor General filed a brief for the Obama administration, urging the court to deny certiorari on the grounds that there was no conflict among the circuits on the matters at issue, that the case represented a poor vehicle for addressing the matters posed by remote DVR recording and that the Second Circuit’s rulings had been reasonable. The Solicitor General’s brief noted that “[f]rom the consumer’s perspective, respondents’ RS-DVR service would offer essentially the same functionality as a VCR or a set-top DVR,” and appeared to take the view that consumers’ use of recording functionality should not be treated differently depending on whether it was performed on a device in the home or via a service of a third party. One month after the government filed its amicus brief, the Supreme Court denied certiorari, leaving undisturbed the Second Circuit Court of Appeals decision of August 2008.

The key holdings of the Second Circuit’s decision:

  • Before a data reproduction can be deemed an infringing copy, it must satisfy a “duration requirement” as well as the requirement it be embodied in a tangible medium of expression. Where fragments of a stream of data are copied into a buffer for no more than 1.2 seconds before being automatically overwritten, such reproductions are not copies and their unauthorized creation is not copyright infringement.
  • Although the operation of Cablevision’s DVR system created unauthorized, fixed copies of complete video works on Cablevision’s hard drives, Cablevision was not liable as a direct infringer because it was Cablevision’s customers, not Cablevision, who made the copies by supplying the “volitional conduct” required for direct liability.
  • Cablevision did not infringe the public performance right through the operation of its DVR system. A playback transmission of previously recorded programming made to a single customer, using a single unique copy produced by that customer on Cablevision’s hard drives, was not a performance to the public and therefore did not infringe.