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Is the Buffer Data a “Copy”?
•^
The Second Circuit concludes that the definition of fixation has tworequirements:–
The work must be embodied in a medium from which it can beperceived, either directly or via some machine or device– It must remain so embodied for more than a transitory duration
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But is it the “embodiment” that must be more than transitory, as thecourt held, or merely the “perception”?–
Here, placing the programs in the buffers was, apparently,technologically necessary to making copies when customers requestedthem– By placing the programs in buffers, the RS-DVR system allowed at leastsome program to be copies, i.e., perceived for more than a transitoryduration
Is the Buffer Data a “Copy”?
•^
Clearly, a copy has been made whenever a customer has requestedone
-^
So, what difference does it make whether the buffering activity
also
constitutes copying?–
The answer lies in who can be sued for direct copyright infringement– The court has already held that it is the
customer
who makes the copy
that is held by Cablevision for customer playback
-^
But the content owners do not want to sue individual customers•
It creates ill will and bad feelings among the public• It is expensive to sue individual customers one by one• The content owners therefore want to sue the cable company
•^
So, the issue becomes whether slicing the content into small piecesof roughly 0.1 seconds stored sequentially in buffer constitutes themaking of a “copy”
Is the Buffer Data a “Copy”?
•^
“Embodiment” in the buffer was not a serious issue–
The BMR buffer “communicates” the works to the primary ingest buffer,and the primary ingest buffer allows requested works to be copied intoindividual customer memory spaces– Moreover, not just isolated pieces of each work (i.e., each program) isheld in the buffers but rather the entire work, even though only a smallfraction is held in the buffers at any one time
-^
But nothing stayed in either buffer longer than 1.2 seconds
-^
Plaintiffs argued that this is long enough to permit copies to bemade, but the court says that this is insufficient–
Implicitly, the court says plaintiffs must look to the copy that
is
made for
their remedy
-^
Holding pieces no longer than 1.2 seconds is merely “transitory,” so thebuffering activity does not constitute reproduction of the works
What Does It All Mean?
•^
When the definition of “copy” and “fixed” were adopted in 1976,everyone thought that fireworks or perhaps brief televisionappearances were all that was involved
-^
No one could foresee the changes in the means for
delivering
content would be changed by digital technology
-^
It is difficult to rewrite these definitions now that we see the issuesmore clearly, because there are entrenched interests on both sides
-^
In the US Congress, it is always much easier to
stop
legislation than
to get something passed
Incentives
•^
Let us go back to the reason we recognize IP in the first place
-^
Recall, if creative people would produce all the books, music, andart that society desires without the incentive of copyright’s exclusiverights, it is economically inefficient to recognize IPRs at all
-^
Do content producers need the incentive of additional licensing feesfrom remote home copying?–
The movie industry thought it needed the incentive of royalty fees for thesale of VCRs– When the movie industry lost in
Sony
, it opened the market for VCRs,
which in turn created a
new
market for movie makers in the form of
cassette, and now DVD, rentals
-^
Now the movie industry makes more money from sales and rentals ofDVDs than from the box office
Music and P2P Networks
•^
As we all know, the internet has made possible a much widerdistribution of copyright-protected content than was ever possiblebefore
-^
In fact, even before P2P networks people often referred to theinternet as a “massive world-wide copy machine”
-^
P2P networks, like Napster and later Grokster, greatly enhanced thepossibilities for copying music and other files without payinganything to the recording companies or the performing artists
-^
In order to study how the law has reacted to this crucialtechnological change, we need to go back a bit and think about thequestion of “contributory” copyright infringement
New Technologies
•^
Should manufacturers of, say, printing presses, be held liable if acustomer buys one and uses it to infringe copyrights?–
Traditionally, there is no vicarious liability because the pressmanufacturer is not in a position to control the activities of purchasers;once the printing press has left the factory or store, the purchaser canuse it without any further intervention from the manufacturer– Also, a printing press can be used for many legitimate activities, such asprinting posters and pamphlets by people who own the copyrights– Therefore, although selling the printing press “materially assists” aninfringer who publishes protected works without authorization, the selleror manufacturer of the printing press usually has no knowledge that agiven purchaser will use if for an illegal purpose – so there is nocontributory infringement, either
