channels carried by Cablevision, so that if a customer requested that a particular program be
recorded, the appropriate packets could be retrieved from the buffer memory and copied to the
customer’s designated hard drive storage space on the Arroyo server.^156
The RS-DVR service allowed customers to request that a program be recorded in one of
two ways. The customer could navigate an on-screen program guide and select a future program
to record, or while watching a program, the customer could press a “record” button on a remote
control. In response, the Arroyo server would receive a list of recording requests, find the
packets for the particular programs requested for recording, then make a copy of the relevant
program for each customer that requested it be recorded. A separate copy would be stored in
each customer’s designated hard drive storage space on the Arroyo server. If no customer
requested that a particular program be recorded, no copy of that program was made on the hard
drives of the Arroyo server. When the customer selected a recorded program for playback, the
Arroyo server would locate the copy of the desired program stored on the customer’s designated
hard drive storage space, then cause the program to be streamed out. The stream containing the
program would be transmitted to every home in the node where the requesting customer was
located, but only the requesting set-top box would be provided the key for decrypting the stream
for viewing.^157
The plaintiffs alleged direct copyright infringement based on Cablevision’s creation of
the copies on the hard drives of the Arroyo servers and of the buffer copies. Although
Cablevision did not deny that these copies were being made, it argued that it was entirely passive
in the process and the copies were being made by its customers. It also argued, based on the
Sony case, that it could not be liable for copyright infringement for merely providing customers
with the machinery to make the copies.^158
The court rejected these arguments, ruling that the RS-DVR was not merely a device, but
rather a service, and that, by providing the service, it was Cablevision doing the copying. In
particular, the court found the relationship between Cablevision and RS-DVR customers to be
significantly different from the relationship between Sony and VCR users. Unlike a VCR, the
RS-DVR did not have a stand-alone quality. Cablevision retained ownership of the RS-DVR
set-top box, and the RS-DVR required a continuing relationship between Cablevision and its
customers. Cablevision not only supplied the set-top box for the customer’s home, but also
decided which programming channels to make available for recording, and housed, operated, and
maintained the rest of the equipment that made the RS-DVR’s recording process possible.
Cablevision also determined how much memory to allot to each customer and reserved storage
capacity for each customer on a hard drive at its facility. Customers were offered the option of
acquiring additional capacity for a fee.^159
(^156) Id. at 613-14.
(^157) Id. at 614-16.
(^158) Id. at 617-18.
(^159) Id. at 618-19.