request to a human employee, who then voluntarily operates the copying system to make the
copy, and issuing a command directly to a system, which automatically obeys commands and
engages in no volitional conduct.^166 “Here, by selling access to a system that automatically
produces copies on command, Cablevision more closely resembles a store proprietor who
charges customers to use a photocopier on his premises, and it seems incorrect to say, without
more, that such a proprietary ‘makes’ any copies when his machines are actually operated by his
customers.”^167
Nor was Cablevision’s discretion in selecting the programming that it would make
available for recording sufficiently proximate to the copying to displace the customer as the
person who “made” the copies. Cablevision’s control was limited to the channels of
programming available to a customer and not to the programs themselves. Cablevision had no
control over what programs were made available on individual channels or when those programs
would air, if at all. In that respect, Cablevision possessed far less control over recordable content
that it did in the VOD context, where it actively selected and made available beforehand the
individual programs available for viewing. Thus, Cablevision could not have direct liability for
the acts of its customers, and any liability on its part would have to be based on contributory
liability. The district court’s noted “continuing relationship” with its RS-DVR customers, its
control over recordable content, and the instrumentality of copying would be relevant to
contributory liability, but not direct liability.^168
With respect to the issue of direct liability, the Second Circuit concluded: “We need not
decide today whether one’s contribution to the creation of an infringing copy may be so great
that it warrants holding that party directly liable for the infringement, even though another party
has actually made the copy. We conclude only that on the facts of this case, copies produced by
the RS-DVR system are ‘made’ by the RS-DVR customer, and Cablevision’s contribution to this
reproduction by providing the system does not warrant the imposition of direct liability.”^169
The Second Circuit’s rulings with respect whether Cablevision was engaged in
unauthorized public performances through the playback of the RS-DVR copies are discussed in
Section II.B.5 below.
(o) Arista Records v. Usenet.comIn Arista Records LLC. V. Usenet.com, Inc.,^170 the defendants operated a Napster-like
Usenet service that advertised to and targeted users who wanted to download music files. Unlike
peer-to-peer filing sharing networks, the files were stored on “spool” news servers operated by
(^166) Id. at 131.
(^167) Id. at 132.
(^168) Id. at 132-33.
(^169) Id. at 133.
(^170) 633 F. Supp. 2d 124 (S.D.N.Y. 2009).