Cartoon Network LP, LLLP v. CSC Holdings, Inc. Cases of Interest >  IP >  Copyright

Cartoon Network LP, LLLP v. CSC Holdings, Inc.

Cartoon Network LP, LLLP v. CSC Holdings, Inc. 536 F.3d 121 (2nd Cir. 2008)


Plaintiff Cartoon Network produces copyrighted movies and television shows which it provides to defendant Cablevision pursuant to various licensing agreements. Cablevision, an operator of cable T.V. systems, intends to begin marketing a new Remote Storage” Digital Video Recorder system (“RS-DVR”), using a technology similar to TiVo?and video-on-demand services provided by many cable companies. Defendant’s remote storage system would allow Cablevision customers to record cable programming on central hard drives housed and maintained by Cablevision at a “remote” location. Cablevision customers can then playback those programs on their home televisions at their convenience. Plaintiff contends that defendant’s system will result in infringement of plaintiff’s exclusive copyrights through unauthorized reproduction, and public performance of their copyrighted works.

Explanation of Operation of RS-DVR system- Cablevision gathers content of various television channels into a single data stream for distribution to consumers. Under the RS-DVR system this single stream of data is split into two streams. The first stream is routed directly to customers while the second is routed to a Broad Band Media Router (BMR). The BMR buffers the data stream, reformats it, and sends it to the “Arroyo Server,” which consists of two data buffers and a number of high-capacity hard disks. As the data passes through the first buffer (primary ingest buffer), the server inquires as to whether any customer has requested that that program be recorded. If a customer has requested a particular program, the data for that program moves from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer. The primary ingest buffer holds no more than 0.1 seconds of each channel's programming at any moment. Thus, every tenth of a second, the data residing on this buffer is automatically erased and replaced. A customer can record programming by selecting a program to be recorded in advance of normal air play. When the customer wishes to watch the recorded program the customer, using their remote control, inputs a request through the cable, to the Arroyo Server at Cablevision's central facility which then sends the recorded program directly to the customer’s television.

Procedural History:

Cartoon network sued Cablevision in Federal District court seeking declaratory and injunctive relief. Plaintiffs alleged only theories of direct infringement of the reproduction and public display rights. The District Court awarded summary judgment to the plaintiffs and enjoined Cablevision from operating the RS-DVR system without licenses from its content providers. Cablevision appealed to the 2nd Circuit and the 2nd Circuit reversed the district court’s award of summary judgment and vacated the district court injunction. The case was ultimately remanded for further proceedings and no further record of litigation exists.

Does operation of Cablevision’s RE-DVR system infringe plaintiff’s reproduction and/ or public display rights?


• Liability for infringement of reproduction right in initial buffering of data:
o Initial buffering of data does not create a “copy” within the meaning of the copyright act because the data is not “fixed” in the buffer. The data resides in no buffer for more than 1.2 seconds before being automatically overwritten. The Court finds this is not a period of more than transitory duration, and therefore the data is not “fixed” in the initial buffers.
• Direct Liability for Creating Playback Copies:
o The court finds that a copy was clearly made, upon the user’s request, in the Arroyo server maintained by the Cablevision. Relying on the Netcom precedent, the court finds that the user was the person who created the copy. While Cablevision may be liable for contributory infringement, it is not liable for direct infringement where it merely created, and maintained a system which allowed users to make reproductions of copyrighted material.
• Liability for public display of copyrighted works through playback of recorded programs:
o Cablevision’s system does result in the transmission of a performance of a work. However, the transmission was not “to the public” as required by the copyright act. In order to determine if a transmission was “to the public” a court must analyze the potential audience of the transmission. Because the Cablevision system only transmits a performance to a single subscriber, using a copy made by that subscriber, the transmission is not “to the public” as required by the copyright act.

Important Dicta:

The court determined that the momentary copying of television programs into Cablevision’s computer buffer did not constitute a copy. Regarding the holding in MIA that an upload into a computer’s RAM constitutes making of a copy the court noted 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.” So while uploading a work into RAM can result in creation of a copy, it doesn’t always have that result.

Critical Analysis:

This case is consistent with the decision reached by the court in Netcom. Here, Cablevision created an automated system that allowed users to make copies of television programs. The Netcom court determined that liability for direct infringement will not lie in a situation where a defendant’s passive automated system is used by a 3rd party to create copies of a protected work. Cablevision may be held liable under a theory of contributory infringement. However, the plaintiff in this case did not pursue a cause of action based on contributory infringement and instead chose to pursue Cablevision under a theory of direct liability. If the plaintiff later decides to pursue a contributory infringement claim against Cablevision, it would probably be a strong case and Cablevision would not be entitled to protection under the DMCA safe harbor as the safe harbor for data storage is limited to service providers who unknowingly store infringing data on their systems.

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