News: In a very important decision, in The Cartoon Network v. C.S.C. Holdings, Inc., the Second Circuit (in NY) reversed a trial court’s decision in favor of copyright holders against cable companies planning to use a “remote storage” DVR. The opinion is here.
A remote storage DVR means that the actual digital files are stored, not in the set top box in a person’s home, but instead remotely on the servers of the cable companies. The functionality, however, is the same: TV viewers want to “time shift” record shows for later viewing. The Sony case in 1984 recognized the fair use right of viewers to time shift record on the VCR. The “remote storage” DVR takes the storage from the home to some remote server.
Several media companies representing copyright holders said that this change made the recording illegal b/c it was no longer taking place in the home. The trial court agreed, but, interestingly, no fair use argument was considered in the analysis because the parties apparently did not present it. So the decision turned on analyzing whether the remote storage constituted direct infringement. On appeal, the Second Circuit held that it did not and reversed the trial court’s decision.
August 5, 2008 at 3:33 pm
Here come the Pirates, selling/trading an monetizing libraries of content all under the flag of Fair Use.
August 6, 2008 at 3:35 pm
Fair use was not an issue in this case. The claim was for direct infringement by a commercial party (one element of fair use is that the use must not be commercial). The court noted that the plaintiffs did not pursue a contributory infringement claim. That is, the role of the consumer (the end user) was not at at issue. Had a contributory infringement claim been made the court would have had to consider whether or not the consumer’s use of the content was infringing, or whether fair use applied.
Nancy
August 7, 2008 at 3:23 pm
nancyprager:
Thank you for clearing that up and setting me straight…