Denny Chin

“ When a customer requests playback of a recorded program, the program must be retrieved from the Arroyo server and transmitted to the customer. This transmission, plaintiffs contend, is an unauthorized public performance by Cablevision of their copyrighted works.
To “perform” a work, as defined in the Copyright Act, is “to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” ”

“ Once the playback session has started, the customer can use trick modes to pause, fast-forward, and rewind the program. (Hartson Report ¶ 76) . To enable these trick modes, the RS-DVR automatically places one to two seconds worth of video data from the programming stream into buffer memory. (Hartson Report ¶ 101) . If too many customers in a particular node are using their RS-DVR at the same time, the system will not be able to handle all of them and there will be the equivalent of a “busy signal" as an error message will be displayed. ”

“ Cablevision determines how much memory to allot to each customer and reserves storage capacity for each on a hard drive at its facility, and customers may very well be offered the option of acquiring additional capacity—for a fee. ”

“ Second, apart from their time-shifting functions, the RS-DVR and the VCR have little in common, and the relationship between Cablevision and potential RS-DVR customers is significantly different from the relationship between Sony and VCR users.
A VCR is a stand-alone piece of equipment. A consumer purchases the VCR and owns it outright. The consumer can then pick the VCR up, transport it, connect it to someone else’s television and, assuming both devices are in working order, record programming. The RS-DVR does not have that stand-alone quality. ”

“ Plaintiffs own the copyrights to numerous copyrighted entertainment programs, including movies, television series, news and sports shows, and cartoons, which are shown on television and also used (or licensed for use) in other media, including the Internet, DVDs, and cellular phone technology. Defendants, counter-claim plaintiffs, and third-party plaintiffs are Cablevision and CSC (“defendants”) . They own and operate cable television systems, primarily in the New York City metropolitan area. ”

“ A court faced with cross-motions for summary judgment need not “grant judgment as a matter of law for one side or the other,” but “must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration. ”

“ The Copyright Act, however, provides that a work is “fixed” if it “is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Id. Here, as discussed, the portions of programming residing in buffer memory are used to make permanent copies of entire programs on the Arroyo servers. Clearly, the buffer copies are capable of being reproduced. Furthermore, the buffer copies, in the aggregate, comprise the whole of plaintiffs' programming. ”

“ Digital signals are transmitted as compressed data in the form of binary digits, or “bits.” (Id. ¶¶ 19–20, 38) . The number of bits that can be sent in a second is known as the “bitrate.” (Id. ¶ 41) . Digital signals allow for a greater variety in television programming—because more signals can be transmitted in the same space—as well as interactive services and, often, better audio and image quality than analog television. (Id. ¶¶ 39–42) . The RS-DVR would be offered as part of Cablevision’s digital cable service. ”

“ It argues that, under Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) , a company cannot be liable for infringement merely because it supplies Betamax recorders, video cassette recorders (“VCRs”) , or DVRs to consumers to record television programs for in-home, personal viewing, and it further contends that its RS-DVR is no different from these traditional devices.
In these related cases, plaintiffs sue Cablevision and its parent, CSC Holdings, Inc. ”

“ The ADS verifies that: (1) the customer is authorized to receive the program in question; (2) the customer has not already requested that the program be recorded; (3) the customer has available hard drive storage space; (4) the recording of the program will not result in the customer’s recording more than two programs at the same time; and (5) the customer is not trying to record a program that is not within his or her subscription programming. ”

“ Recorded programming would be stored on servers designed by Arroyo Video Solutions, Inc. (each, an “Arroyo server”) containing multiple hard disk drives. (Mitchko Decl. ¶ 14) . Each customer would be allotted a specified amount of storage capacity on one of those hard drives; his or her recorded programming would be stored in that hard drive space and available only to that customer. (Id.) . Cablevision determines the amount of memory allotted to each customer; initially, Cablevision contemplated allocating 80 megabytes of memory to each customer, but later decided on 160 megabytes. ”

“ Cablevision also relies, to no avail, on Religious Techn. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) , and subsequent cases brought against Internet service providers (“ISPs”) for copyright infringement committed by their customers. In Netcom, an individual posted copyrighted material in a message on a computer bulletin board service (“BBS”) . By operation of the ISP’s software, the posting to the BBS automatically resulted in the copying of the message to the ISP’s computers, where the copies were stored briefly. ”