Intellectual Property Law

2nd Circuit: A Copy that Exists for 1 Second is No “Copy” at All

By Tim Armstrong, Derek Bambauer, and William McGeveran.

I’m late to the party celebrating the Second Circuit’s terrific new opinion in Cartoon Network LP v. CSC Holdings, Inc., which is the appeals court’s caption for the case formerly known as 20th Century Fox v. Cablevision. As readers of this blog might recall, I joined an amicus brief in the case, limited to the question whether the lower court expanded the Copyright Act’s definition of “fixation” beyond all reason by finding that a series of three video frames temporarily stored in a computer’s RAM buffer before being overwritten with other content were sufficiently “fixed” to constitute “copies” of the work. I wrote in my earlier post about the problems that would arise if such brief, transitory snippets of data were deemed to be “copies” of the underlying work:

The legal problem with with finding the tenth-of-a-second RAM buffer copy to be a separate infringement is that it effectively erases the ?more than transitory duration? requirement from the Copyright Act?s definition of ?fixation.? The practical problem is that there is no piece of modern technology that does not at some point store information in RAM in the course of copying it or transmitting it elsewhere. If every one of those temporary RAM buffer copies is a separate act of infringement, it potentially multiplies the scope of possible liability in any case in which the work is stored in digital form.

Happily, the Second Circuit agreed. From pp. 20?21:

No bit of data remains in any buffer for more than a fleeting 1.2 seconds. And unlike the data in cases like MAI Systems, which remained embodied in the computer?s RAM memory until the user turned the computer off, each bit of data here is rapidly and automatically overwritten as soon as it is processed. While our inquiry is necessarily fact-specific, and other factors not present here may alter the duration analysis significantly, these facts strongly suggest that the works in this case are embodied in the buffer for only a ?transitory? period, thus failing the duration requirement. ? Accordingly, the acts of buffering in the operation of the RS-DVR do not create copies, as the Copyright Act defines that term.

There’s more to like in the court’s opinion, but what’s even better than the court’s specific language is its general attitude. Perhaps I’m reading too much into the decision, but it certainly seems like the judges are skeptical that changes in technology (here, from home storage, a la TiVo, to offsite storage) mandate, or even support, changes in basic copyright principles. It’s one of the most technologically level-headed copyright opinions I’ve read since ? well, unfortunately, since the 9th Circuit’s opinion in Grokster. Here’s hoping Cartoon Network fares better than that case did.

Full post as published by Info/Law on August 05, 2008 (boomark / email).