Advanced Copyright Law on the Internet

(m) Parker v. Google

In Parker v. Google,^150 pro se plaintiff Gordon Parker was the owner of copyright in an e-
book titled “29 Reasons Not To Be A Nice Guy.” He posted Reason # 6 on USENET. Parker
asserted that Google’s automatic archiving of this USENET posting constituted a direct
infringement of his copyright. He also claimed that when Google produced a list of hyperlinks
in response to a user’s query and excerpted his web site in that list, Google again directly
infringed his copyrighted work.^151

The district court rejected these claims. Citing the Costar and Netcom cases, the district
court held that “when an ISP automatically and temporarily stores data without human
intervention so that the system can operate and transmit data to its users, the necessary element
of volition is missing. The automatic activity of Google’s search engine is analogous. It is clear
that Google’s automatic archiving of USENET postings and excerpting of websites in its results
to users’ search queries do not include the necessary volitional element to constitute direct
copyright infringement.”^152

On appeal, the Third Circuit affirmed in an unpublished decision.^153 The court noted that,
“to state a direct copyright infringement claim, a plaintiff must allege volitional conduct on the
part of the defendant,” and Parker’s allegations failed to allege any volitional conduct on the part
of Google.^154

(n) The Cablevision Case

In Twentieth Century Fox Film Corp. v. Cablevision Sys.,^155 the district court ruled that
Cablevision was liable for direct copyright infringement based on the offering of a network
digital video recording system known as the “Remote-Storage DVR System” (RS-DVR), which
permitted customers to record cable programs on central servers at Cablevision’s facilities and
play the programs back for viewing at home. The technology underlying the RS-DVR worked as
follows. Cablevision took the linear programming signal feed received at its head end and
reconfigured it by splitting the feed into a second stream, which was then reformatted through a
process known as “clamping” to convert the bitrate of the stream into one that was more
efficient. In the process of clamping, portions of programming were placed into buffer memory.
The stream was then converted into a number of single program transport streams, one channel
per stream. The converted streams were then fed into a special set of “Arroyo” servers, which at
any given moment in time, stored in a buffer three frames of video from each of the linear

(^150) 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff’d, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).
(^151) Id. at 496.
(^152) Id. at 497.
(^153) Parker v. Google, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).
(^154) Id. at *6, 8.
(^155) 478 F. Supp. 2d 607 (S.D.N.Y. 2007), rev’d, 536 F.3d 121 (2d Cir. 2008), cert. denied sub nom. CNN, Inc. v.
CSC Holdings, Inc., 557 U.S. 946 (2009).