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?
While the studios and networks certainly wanted the answer to be "yes " thankfully the Second Circuit Court of Appeals followed common sense and said "no." That's a very good thing because if the content industry had been right then lots of remote computing services could have been in serious legal jeopardy. What if someone uses Amazon's EC2 service to commit copyright infringement? Would Amazon have been 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 be discriminated against by copyright law. That's what we told the Second Circuit in our appellate brief and that's what the Second Circuit concluded.
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 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.
On August 4 2008 the appellate court sided with Cablevision EFF and our co-amici reversing the district court's decision. The court held that (1) fleeting buffer copies (lasting less than 1.2 seconds) were not "fixed" sufficiently and thus not "copies" under the Copyright Act; (2) the consumers who press record are the ones who are making copies not Cablevision; and (3) the playback of those copies (each of which was recorded separately for each consumer even if thousands of consumers separately chose to record the same show) was not a public performance since each copy could be played only by the consumer who recorded it.