To establish direct liability under the Copyright Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.
Plaintiff content providers alleged that defendant cable company's operation of a remote storage digital video recorder system (RS-DVR) directly infringed plaintiffs' rights to reproduce and publicly perform their copyrighted works. The United States District Court for the Southern District of New York entered summary judgment in favor of plaintiffs and enjoined defendant from operating the RS-DVR system without licenses. Defendant appealed.
Did the cable company violate the contend provider's exclusive right of production?
The court held that the acts of buffering in the operation of the RS-DVR did not create copies within the meaning of 17 U.S.C.S. § 101 of the Copyright Act because data resided in no buffer for more than 1.2 seconds before being automatically overwritten. Because the copyrighted works were not embodied in the buffers for a period of more than transitory duration, they were not fixed in the buffers. Thus, the acts of buffering did not violate plaintiffs' exclusive right of production under 17 U.S.C.S. § 106(1). The court concluded that copies produced by the RS-DVR system were made by the RS-DVR customers and that defendant's contribution to that reproduction by providing the system did not warrant the imposition of direct liability for infringement of plaintiffs' reproduction right. Because each RS-DVR playback transmission was made to a single subscriber using a single unique copy produced by that subscriber, the court concluded that such transmissions were not performances "to the public" within the meaning of 17 U.S.C.S. § 101; therefore, the playback of RS-DVR copies did not infringe plaintiffs' exclusive right of public performance under 17 U.S.C.S. § 106(4).