In The Cartoon Network LP, LLP v. CSC Holdings, Inc., No. 07-1480 & 07-1511 (2d Cir. Aug. 4, 2008), the Second Circuit considered several important issues on the way to concluding that Cablevision’s proposed operation of a remote digital video recorder (RS-DVR) system does not infringe the rights of reproduction and public performance of its program providers.

Perhaps the most important issue in the case for new media lawyers is the court’s treatment of the issue of RAM, or buffer, copying. The Second Circuit concluded that while a copy in RAM may a "copy" under the Copyright Act, it is not a copy as a matter of law. In so ruling, the Second Circuit took on not only the oft-cited (and oft-criticized) Ninth Circuit opinion in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), it also took on the opinion of the Copyright Office, and arguably created a split in the circuits on the issue.

It should come as no surprise that the RAM copying discussion in The Cartoon Network case has been much commented on. The opinion leaves open many questions for resolution in future cases. The issue of the copyright status of such copying will doubtless recur. As the district court noted in its (overruled) opinion, “All digital devices utilize transient data buffers, which are regions of memory that temporarily hold data.” Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F.Supp.2d 607, 613 (S.D.N.Y. 2007).

Considering the fundamental nature of the issue, below is a review of the court’s ruling with links to resources addressing the issue, including prior cases, a recent ruling, and some of the amicus briefs submitted in the case.

An RS-DVR system is a technology that permits a cable subscriber to store programs for later viewing on a networked storage device located on the cable provider’s premises. The operation of the system proposed by Cablevision entails among other things the creation of "primary ingest buffer" copies in system RAM (Random Access Memory) of no more than 1.2 seconds of a work for a period of 0.1 seconds. The Second Circuit in The Cartoon Network v. CSC considered whether such copies meet the definition of a "copy" in § 101 of the Copyright Act.

In considering the copyright fixation requirement, the court reminded us that:

"Copies," as defined in the Copyright Act, "are material objects . . . in which a work is fixed by any method . . . and from which the work can be . . . reproduced." Id. § 101. The Act also provides that a work is "‘fixed’ in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration." Id. (emphasis added).

Two elements must therefore be shown, the Second Circuit concluded:

the work must be embodied in a medium, i.e., placed in a medium such that it can be perceived, reproduced, etc., from that medium (the "embodiment requirement"), and it must remain thus embodied "for a period of more than transitory duration" (the "duration requirement").

It is the duration requirement that the Ninth Circuit failed to address in MAI Systems Corp. v. Peak Computer, Inc, the Second Circuit concluded:

The issue in MAI Systems was whether, by loading the software into the computer’s RAM, the repairman created a "copy" as defined in § 101. See id. at 517. The resolution of this issue turned on whether the software’s embodiment in the computer’s RAM was "fixed," within the meaning of the same section. The Ninth Circuit concluded that

by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer, MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."
Id. at 518 (quoting 17 U.S.C. § 101).

The MAI Systems court referenced the "transitory duration" language but did not discuss or analyze it. The opinion notes that the defendants "vigorously" argued that the program’s embodiment in the RAM was not a copy, but it does not specify the arguments defendants made. Id. at 517. This omission suggests that the parties did not litigate the significance of the "transitory duration" language, and the court therefore had no occasion to address it. This is unsurprising, because it seems fair to assume that in these cases the program was embodied in the RAM for at least several minutes.

Accordingly, we construe MAI Systems and its progeny as holding that loading a program into a computer’s RAM can result in copying that program. We do not read MAI Systems as holding that, as a matter of law, loading a program into a form of RAM always results in copying. Such a holding would read the "transitory duration" language out of the definition, and we do not believe our sister circuit would dismiss this statutory language without even discussing it.

Below is an excerpt from the discussion of the RAM copying issue in the August 2001 DMCA Section 104 Report of the U.S. Copyright Office; this portion of the discussion suggests that the determination of whether a copy is sufficiently fixed should be made based upon the economic value of the copy rather than the time period in which the copy persists:

Based on the definitional language in the Copyright Act, RAM reproductions are generally "fixed" and thus constitute "copies" that are within the scope of the copyright owner’s reproduction right. The definition of "fixed" leaves open the possibility, however, that certain RAM reproductions that exist for only a "period of . . . transitory duration" are not copies. The statute does not define "transitory duration" directly. Since permanence is not required for fixation, "transitory" must denote something shorter than "temporary." "Transitory" must also denote something less than "ephemeral," as that term is used in the Copyright Act, since the Act confirms that "ephemeral recordings" are fixed by providing a specific exemption for "ephemeral recordings" lasting up to six months. Courts have not attempted to formulate a general rule defining how long a reproduction must endure to be "fixed," deciding instead on a case-by-case basis whether the particular reproduction at issue sufficed.

Nonetheless, a general rule can be drawn from the language of the statute. In establishing the dividing line between those reproductions that are subject to the reproduction right and those that are not, we believe that Congress intended the copyright owner’s exclusive right to extend to all reproductions from which economic value can be derived. The economic value derived from a reproduction lies in the ability to copy, perceive or communicate it. Unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated, the making of that copy should fall within the scope of the copyright owner’s exclusive rights. The dividing line, then, can be drawn between reproductions that exist for a sufficient period of time to be capable of being "perceived, reproduced, or otherwise communicated" and those that do not. As a practical matter, as discussed above, this would cover the temporary copies that are made in RAM in the course of using works on computers and computer networks.

U.S. Copyright Office, DMCA Section 104 Report (August 2001), at 110-12.

The Copyright Office report also includes a footnote with a catalog of the rulings considering the issue to that date, see Report at 119, n. 362.

The Second Circuit in The Cartoon Network criticized the analysis of the Copyright Office on the ground that it too reads out of the statute the "transitory duration" language (see Slip. op. at 18 (concluding that this interpretation is only persuasive authority on the interpretation of the Copyright Act).

Note also that the issue of RAM copying arose in MDY Industries, LLC v. Blizzard Entertainment, Inc. (D. Ariz. July 16, 2008) (summarily concluding that a RAM copy of videogame software is a "copy"). If that case reaches the appellate court, it may be the first case to address the apparent split between the Second Circuit and the Ninth Circuit on the copyright status of RAM copies.

The numerous amicus briefs in the case include the following:

Amicus Brief, American Society of Media Photographers and numerous others ("Copyright owners’ ability to commercially exploit their works is under constant attack as others devise new means of copying and delivering content to consumers for profit without compensating those who created the works. Cablevision’s RS-DVR service is just one example."

Amicus Brief of the Progress and Freedom Foundation ("…support for sound copyright principles—including a decision to uphold the ruling of the court below in this case, finding liability for direct infringement—should not be seen as a decision "for" creators and "against" consumers and downstream distributors or technologies.")

Amicus Brief, Center for Democracy & Technology and numerous others ("…finding Cablevision liable for direct copyright infringement on the record facts would upset the balance that Congress and the courts have sought to achieve between protecting the legitimate interests of copyright holders on the one hand, and, on the other hand, accommodating innovative and socially useful products and services that make full use of modern communications networks.")

Amicus Brief of ASCAP and BMI Music (focusing on the public performance issue)

Amicus Brief of Law Professors ("…the District Court’s ruling below, if affirmed, would bring about a radical expansion of copyright protection over digital works that would undermine the core policies of the Copyright Act.")

The Electronic Frontier Foundation, which was also an amici on the Center for Democracy & Technology brief, has a page with links to additional amicus briefs, as well as the briefs of the parties and other documents related to the case.

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Photo of Jeffrey Neuburger Jeffrey Neuburger

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise…

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.

Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.