20th Century Fox v. Cablevision

The Issue:

Most people assume that consumers have a fair use right to time shift television to watch at a later time. As a result, lots of companies now sell digital video recorders (DVRs) that enable you to do this, including TiVo, and it's generally accepted that selling DVRs is perfectly legal (of course, the movie studios still don't like it, as demonstrated by their lawsuit against ReplayTV). Should the answer be any different if a cable company gives subscribers the ability to record programs to a remote server, rather than to a hard drive sitting in the DVR in their living room?

Unfortunately, at least one judge seems to think so. If he's right, then lots of remote computing services could be in serious legal trouble. What if someone uses Amazon's EC2 service to commit copyright infringement? Is Amazon automatically liable, even if they had no idea? What about Google Apps? What about drugstore photo printing kiosks? These are all examples of the kinds of tools that consumers can now remotely control in order to make copies. It makes no sense that the service providers who provide these remote tools should discriminated against by copyright law.

Background:

In March 2006, Cablevision announced its intention to deploy a "remote DVR" to its subscribers. Rather than recording cable programming on hard drives contained inside a "set-top DVR" located in the subscriber's home (which is the typical solution offered by both TiVo and cable-company provided DVRs), Cablevision would allow the subscriber to record the program on hard drives maintained in Cablevision's own central offices. To the subscriber, the remote DVR would work just like the traditional set-top DVR -- the subscriber would choose what to record, when to watch, and when to delete programs.

The motion picture and television industries responded by suing Cablevision for copyright infringement. Although the Supreme Court in its famous "Betamax" decision had ruled that time-shifting by consumers was a noninfringing fair use, the plaintiff argued that Cablevision, not its subscribers, were making the copies. Therefore, argued the plaintiffs, Cablevision was a direct infringer of copyright, not able to rely on the same defenses that Sony used to defend its Betamax VCR before the Supreme Court.

On March 22, 2007, the district court in New York agreed with the plaintiffs and found that Cablevision would itself directly infringe copyrights if it launched the remote DVR service. Cablevision has appealed to the Second Circuit Court of Appeals. EFF joined a host of other public interest and industry groups in supporting Cablevision in the appeal.