In sum, the court concluded that the RS-DVR was more akin to a video-on-demand
(VOD) service than to a VCR or other time-shifting device. The court noted that the RS-DVR
service was in fact based on a modified VOD platform. With both systems, Cablevision decided
what content to make available to customers for on-demand viewing. As in VOD, the number of
available pathways for programming delivery was limited; if there were none available, the
customer would get an error message or busy signal. Thus, in its architecture and delivery
method, the court concluded that the RS-DVR bore a striking resemblance to a VOD service – a
service that Cablevision provided pursuant to licenses negotiated with programming owners.^160
Accordingly, the court ruled that a reasonable fact finder could conclude only that the copying at
issues was being done not by the customers, but by Cablevision itself.^161
With respect to the buffer copies, Cablevision argued that the buffer copies were not
sufficiently fixed to be cognizable as “copies” under copyright law. The court rejected this
argument, noting that the buffer copies were sufficiently permanent to make the Arroyo hard
disk copies from, and were therefore capable of being reproduced, as required by the definition
of “fixation.” The court also cited the numerous court decisions, and the Copyright Office’s
August 2001 report on the DMCA, concluding that RAM copies are “copies” for purposes of the
copyright act. Accordingly, the court concluded that summary judgment of direct infringement
was warranted with respect to both the Arroyo server copies and the buffer copies.^162
Finally, the court ruled, based on similar logic, that Cablevision was engaged in
infringing transmissions and public performances to its customers.^163 The court noted that,
“where the relationship between the party sending a transmission and party receiving it is
commercial, as would be the relationship between Cablevision and potential RS-DVR customers,
courts have determined that the transmission is one made ‘to the public.’”^164
On appeal, the Second Circuit reversed in The Cartoon Network LP v. CSC Holdings,
Inc.^165 The Second Circuit’s rulings with respect to the issue of buffer copies are discussed in
Section II.A.2 above. With respect to the copies created on the hard drives of the Arroyo
servers, the court noted that Netcom and its progeny direct attention to the volitional conduct that
causes the copy to be made. In the case of an ordinary VCR, the court noted that it seemed clear
that the operator of the VCR – the person actually pressing the button to make the recording,
supplies the necessary element of volition, not the manufacturer of the device. The court
concluded that the RS-DVR customer was not sufficiently distinguishable from a VCR user to
impose liability as a direct infringer on a different party for copies that were made automatically
upon that customer’s command. The court distinguished cases holding liable a copy shop
making course packs for college professors, finding a significant difference between making a
(^160) Id. at 619.
(^161) Id. at 621.
(^162) Id. at 621-22.
(^163) Id. at 622-23.
(^164) Id. at 623.
(^165) 536 F.3d 121 (2d Cir. 2008), cert. denied sub nom. CNN, Inc. v. CSC Holdings, Inc., 557 U.S. 946 (2009).