From Freedom to Tinker:
In a decision that has triggered much debate, a Federal judge ruled recently that Cablevision’s Digital Video Recorder system infringes the copyrights in TV programs. It’s an unusual decision that deserves some unpacking.
First, some background. The case concerned Digital Video Recorder (DVR) technology, which lets cable TV customers record shows in digital storage and watch them later. TiVo is the best-known DVR technology, but many cable companies offer DVR-enabled set-top boxes.
Most cable-company DVRs are delivered as shiny set-top boxes which contain a computer programmed to store and replay programming, using an onboard hard disc drive for storage. The judge called this a Set-Top Storage DVR, or STS-DVR.
Cablevision’s system worked differently. Rather than putting a computer and hard drive into every consumer’s set-top box, Cablevision implemented the DVR functionality in its own data center. Everything looked the same to the user: you pushed buttons on a remote control to tell the system what to record, and to replay it later. The main difference is that rather than storing your recordings in a hard drive in your set-top box, Cablevision’s system stored them in a region allocated for you in some big storage server in Cablevision’s data center. The judge called this a Remote Storage DVR, or RS-DVR.
STS-DVRs are very similar to VCRs, which the Supreme Court found to be legal, so STS-DVRs are probably okay. Yet the judge found the RS-DVR to be infringing. How did he reach this conclusion?
For starters, the judge geeked out on the technical details. The first part of the opinion describes Cablevision’s implementation in great detail — I’m a techie, and it’s more detail than even I want to know. Only after unloading these details does the judge get around, on page 18 of the opinion, to the kind of procedural background that normally starts on page one or two of an opinion.
This matters because the judge’s ruling seems to hinge on the degree of similarity between RS-DVRs and STS-DVRs. By diving into the details, the judge finds many points of difference, which he uses to justify giving the two types of DVRs different legal treatment. Here’s an example (pp. 25-26):
In any event, Cablevision’s attempt to analogize the RS-DVR to the STS-DVR fails. The RS-DVD may have the look and feel of an STS-DVR … but “under the hood” the two types of DVRs are vastly different. For example, to effectuate the RS-DVR, Cablevision must reconfigure the linear channel programming signals received at its head-end by splitting the APS into a second stream, reformatting it through clamping, and routing it to the Arroyo servers. The STS-DVR does not require these activities. The STS-DVR can record directly to the hard drive located within the set-top box itself; it does not need the complex computer network and constant monitoring by Cablevision personnel necessary for the RS-DVR to record and store programming.
The judge sees the STS-DVR as simpler than the RS-DVR. Perhaps this is because he didn’t go “under the hood” in the STS-DVR, where he would have found a complicated computer system with its own internal stream processing, reformatting, and internal data transmission facilities, as well as complex software to control these functions. It’s not the exact same design as in the RS-DVR, but it’s closer than the judge seems to think.
All of this may have less impact than you might expect, because of the odd way the case was framed. Cablevision, for reasons known only to itself, had waived any fair use arguments, in exchange for the plaintiffs giving up any indirect liability claims (i.e., any claims that Cablevision was enabling infringement by its customers). What remained was a direct infringement claim against Cablevision — a claim that Cablevision itself (rather than its customers) was making copies of the programs — to which Cablevision was not allowed to raise a fair use defense.
The question, in other words, was who was recording the programming. Was Cablevision doing the recording, or were its customers doing the recording? The customers, by using their remote controls to navigate through on-screen menus, directed the technology to record certain programs, and controlled the playback. But the equipment that carried out those commands was owned by Cablevision and (mostly) located in Cablevision buildings. So who was doing the recording? The question doesn’t have a simple answer that I can see.
This general issue of who is responsible for the actions of complex computer systems crops up surprisingly often in law and policy disputes. There doesn’t seem to be a coherent theory about it, which is too bad, because it will only become more important as systems get more complicated and more tightly interconnected.
