The mobile phone industry has joined an eclectic group of parties-including a handful of sometime foes-to urge the 2nd U.S. Circuit Court of Appeals to overturn a lower court ruling that critics say dramatically and unnecessarily expands copyright law liability.
The case involves Cablevision Systems Corp.’s intention to deploy a new remote-storage digital video recording system enabling customers without recording devices to record programs on the cable TV operator’s central servers and later play them back at home.
U.S. District Judge Denny Chin in March found Cablevision as well as its customers “would be engaging in unauthorized reproductions and transmissions of the plaintiffs’ copyrighted programs” under the remote server-DVR planned by the cable operator. It was a victory for TV networks and Hollywood studios.
Diverse opposition group
Wireless and wireline telecom sectors, Internet and computer groups, legal and medical library associations, privacy advocates and law professors across the country are crying foul and predicting the legal shock waves could reach far beyond Cablevision. Oral arguments are expected in September.
Critics of the lower court decision claim Chin failed to recognize the inherent nature of network-based digital systems so common and ubiquitous in modern times.
“It is a truism of the digital age that digital devices must copy information into transient ‘buffers’ in random access memory in order to process that information. None of the digital devices now available in the marketplace-computers, cellphones, personal digital assistants, MP3 and compact disk players, fax machines, digital televisions, etc.-could function without the regular and automatic creation of such transient ‘buffer’ copies,” more than two dozen law professors told the court in a friend-of-the-court brief.
The law professors said the district court strayed from the plain text and legislative history of the copyright act, arguing the law “should not be interpreted to create such sweeping-indeed, almost limitless-liability.”
Wireless chimes in
The wireless industry and others focused their brief on expanded liability encompassed in the lower court ruling.
“Until the late 20th Century, engaging in ‘conduct with a nexus sufficiently close and causal to the illegal copy’ . was almost invariably a matter of physically undertaking the infringing the activity. Today, however, copying instructions can be delivered via wired or wireless communications to a remote network server, personal computer, or other digital device located off of the copier’s premises, and usually maintained by a third party,” stated cellphone industry group CTIA and others in a friend-of-the-court brief. “In response to this physical and legal separation between the party who controls the copying decision and the party who controls the copying equipment, courts have clarified that direct liability attaches, if at all, only to the party who controls the decision to copy. A party whose role is limited to providing the means by which copies are made is not liable for direct infringement.”
The entities said the legal implications in Chin’s decision are compounded by potentially major economic consequences.
“First, because the district court rested its finding of direct copyright infringement largely on the location of the recording device and Cablevision’s offering of a network-based service rather than a stand-along device, upholding its decision based on the record . would establish an unprincipled legal bias against remote and network-base services. Innovation and economic growth would suffer without any countervailing promotion of invention or creativity,” the parties stated. “Second, because the decision . gives no weight to consumers’ lawful uses of Cablevision’s remote DVR, it generally endangers fair uses of copyrighted that employ similar remote and network-based technologies. Development of new technologies such as remove data storage and remote computing applications could be chilled.”
Columbia University law professor Timothy Wu, who gained overnight notoriety (and scorn) in the mobile phone industry after voicing support for allowing Skype and other third-party devices/applications on wireless networks, joined others in predicting that affirmation of the lower court ruling could lead to “substantial industry uncertainty, doctrinal confusion and harm to technological innovation will likely follow.”
Wu said the lower court ruling provides an end-run around to the Supreme Court’s secondary liability jurisprudence. “The rule that a manufacturer of a dual-use product who retains ‘too much’ control over it forfeits protections of the secondary liability doctrine appears to be without precedent. Indeed, such a rule may be flatly incompatible with existing Supreme Court rulings.”
