Understanding Aereo, Part 1 (The Cablevision Precedent)

Posted By on Jan 22, 2014 | 0 comments

Note: This is the first part of an in-depth series examining the Aereo case.  Readers who are looking for a shorter overview might prefer our overview article, Aereo in a Nutshell.

Aereo is well-known as the startup at odds with the broadcast industry—and now headed to the Supreme Court—over its unlicensed service enabling customers to receive their local broadcast channels over the internet.  Also well-known is that Aereo specifically designed their system to comport with the Second Circuit findings in the Cablevision RS-DVR case (Cartoon Network v. CSC Holdings ).

Despite popular perception that the Aereo case (ABC v. Aereo ) hinges entirely on Cablevision, the Aereo system actually differs in at least two potentially significant respects from the RS-DVR system of Cablevision.  First, Aereo obtains its signals via unlicensed antenna reception, whereas Cablevision involved licensed reception by a cable operator.  Then also, Aereo enables users to placeshift in addition to timeshifting.  That is, Aereo users can receive content streamed from Aereo both within and away from home.

Nonetheless, the Cablevision precedent is unquestionably a critical component in the Aereo case, so understanding Aereo requires an understanding of Cablevision.  The remainder of this article will focus on understanding just that.

This is the first in a four-part series.  Part 2 examines the litigation history of Aereo, itself.  Part 3 considers several significant views in conflict with the Aereo holdings.  Part 4 analyzes the issues and consider what should happen when the Supreme Court reviews the case later this year.

In order to provide meaningful insight, the parts in this series are unavoidably long. Here’s an outline to assist with navigation within the article:

Legal Issues
District Court Holding
Second Circuit Holding
Buffer Copies
Recording Copies
Playback Performance
Supreme Court Petition

Full disclosure: I’m not an entirely disinterested party in this matter, inasmuch as I spent many years at Cablevision, and worked directly on Cablevision’s RS-DVR.


Cablevision’s RS-DVR (Remote Storage DVR ) was a system designed to enable conventional (non-DVR) cable set-top boxes to function as DVRs, by connecting them to DVR storage located remotely, at the cable head-end.  The initial RS-DVR system implemented a user interface designed to replicate the DVR interfaces of the Scientific-Atlanta Explorer 8300 (conventional DVR) set-top box that Cablevision was deploying at the time.  It enabled recording of two programs simultaneously and 160 GB of storage, both also matching the 8300.

When a user scheduled a program to be recorded, a live feed of the program would be saved in storage allocated to the user at the head-end.  When the user wanted to view the recorded program, the user’s copy of the program would be streamed from the head-end to a set-top box in their home.

In 2006, after Cablevision announced the service (but before it was launched), a coalition of programmers, led by Fox and Time Warner, sued for declaratory judgment to enjoin Cablevision from launching the service.

In 2011—after the litigation had completed with denial of certiorari by the Supreme Court—Cablevision finally launched its RS-DVR service, branded as DVR Plus, a whole-home DVR service accessible by all set-top boxes within the home, enabling recording of up to four programs simultaneously and 160 GB of storage.

In 2013, Cablevision rebranded the service as Multi-Room DVR, enhancing it to support up to ten simultaneous recordings and storage of up to 75 hours of HD (300 hours of SD) programming.

Legal Issues

There were three key legal questions at issue in Cablevision:

  1. Buffer copies: Were transient buffer copies created within the recording system—prior to and independent of the user command to record—fixed, and therefore (potentially) a copyright infringement, in themselves?
  2. Recording copies: Was Cablevision or the user the maker of the recording copies?
  3. Playback performance: Was playback of a recorded program a performance by Cablevision or the user, and did it constitute a public performance?

These were the key questions specifically because the parties had agreed to limit the scope of the case by stipulating that the programmers would argue only direct infringement and Cablevision would waive fair use as a defense.  In other words, the programmers agreed not to argue that Cablevision was secondarily liable for actions of its users (by theories such as contributory infringement ) and Cablevision agreed that it would not argue that any fair use rights users might have extended to cover actions by Cablevision, itself.

(It is worth noting, as an aside, that while it is widely presumed that recording programs, for the purpose of timeshifting, with a DVR—even a DVR integrated into a set-top box provided by an operator, for a fee—constitutes a fair use, per the Betamax case, there hadn’t been any explicit ruling on such, at the time of the Cablevision litigation.)

District Court Holding

The case came before Judge Denny Chin, in the Southern District of New York, in early 2006.  (Coincidentally, after being elevated to Second Circuit Court of Appeals in 2010, Chin would later sit on the three-judge panel hearing the Aereo appeal.)

In March 2007, Chin found for the programmers, granting summary judgment enjoining Cablevision from launching the RS-DVR service.

On each of the key legal questions, Chin found for the programmers and against Cablevision.  He held that the buffer copies made prior to recording were fixed, and no matter how fleeting, would be infringing.  He held that Cablevision was responsible and would directly infringe by making the recording copies.  And finally, he held that Cablevision was responsible and would directly infringe by playback of the program, in what he concluded would be a public performance.

Second Circuit Holding

Cablevision appealed to the Second Circuit Court of Appeals.  In August 2008, a three judge panel unanimously reversed the lower court judgment and vacated the injunction.

The Second Circuit’s analysis was compelling.

Buffer Copies

The Court held that the language of the Copyright Act:

…plainly imposes two distinct but related requirements: the work must be embodied in a medium, i.e., placed in a medium such that it can be perceived, reproduced, etc., from that medium (the “embodiment requirement”), and it must remain thus embodied “for a period of more than transitory duration” (the “duration requirement”).

The lower court had erred in focusing on the embodiment requirement and effectively ignoring the duration requirement entirely.  In the RS-DVR system, the largest buffers held data for just over 1 second, which the Court concluded did not satisfy the duration requirement.  Accordingly, the buffer copies were not fixed and did not constitute an infringement.

Recording Copies

The Court found that:

When there is a dispute as to the author of an allegedly infringing instance of reproduction, [precedent] direct our attention to the volitional conduct that causes the copy to be made. […] In the case of a VCR, it seems clear—and we know of no case holding otherwise—that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine. We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.

The Court further reasoned that:

…by selling access to a system that automatically produces copies on command, Cablevision more closely resembles a store proprietor who charges customers to use a photocopier on his premises, and it seems incorrect to say, without more, that such a proprietor “makes” any copies when his machines are actually operated by his customers.

Finally, the Court observed that:

Our refusal to find Cablevision directly liable on these facts is buttressed by the existence and contours of the Supreme Court’s doctrine of contributory liability in the copyright context.  After all, the purpose of any causation-based liability doctrine is to identify the actor (or actors) whose “conduct has been so significant and important a cause that [he or she] should be legally responsible.”

The facts found dispositive by the lower court were deemed more relevant to the question of contributory liability, rather than direct liability.  But contributory liability was, specifically, not at issue in the case.

While the Court’s holding left open the possibility that Cablevision could be liable under a contributory infringement theory, a reading of the opinion makes clear that court found little basis for distinguishing the RS-DVR from conventional DVRs, VCRs, photocopiers, or even copy shops.

Playback Performance

The Court avoided the question of whether Cablevision or the user performs the work by playing back the recorded copy because it concluded that each playback in the system was a private performance rather than a public performance.  As such, the performance did not constitute and infringement, and it didn’t matter who was directly responsible for the performance.

The key issue in making this determination was distinguishing between a performance and the underlying work.

The Court found that the lower court had erred when it:

…suggested that, in considering whether a transmission is “to the public,” we consider not the potential audience of a particular transmission, but the potential audience of the underlying work (i.e., “the program”) whose content is being transmitted.

Rather it noted that the lower court’s holding would imply that all performances are public:

We cannot reconcile the district court’s approach with the language of the transmit clause. That clause speaks of people capable of receiving a particular “transmission” or “performance,” and not of the potential audience of a particular “work.” Indeed, such an approach would render the “to the public” language surplusage. Doubtless the potential audience for every copyrighted audiovisual work is the general public. As a result, any transmission of the content of a copyrighted work would constitute a public performance under the district court’s interpretation. But the transmit clause obviously contemplates the existence of non-public transmissions; if it did not, Congress would have stopped drafting that clause after “performance.”

In other words, if the district court standard were correct, then an individual using a DVR to record programs would be publicly performing the  recorded programs whenever they played them back, even just for their own viewing, merely because others had also recorded and played back those programs.

Supreme Court Petition

The programmers petitioned the Supreme Court for certiorari (i.e., to hear the case on appeal).  Cablevision opposed.  The Supreme Court solicited the Solicitor General to submit an amicus brief on the question of certiorari.

The Solicitor General’s brief argued for denial of certiorari, in large part because the parties’ stipulations too limited the scope of the case, and would prevent the Court from achieving a final resolution of the issues.  (Interestingly, the brief seemed to express particular concern about the exclusion of fair use as a defense, suggesting that the Supreme Court ought to be able to consider the possibility that a commercial entity might enjoy a fair use privilege, when acting on behalf of its customer with a fair use privilege.)

In July of 2009, the Supreme Court denied certiorari.

This left the Second Circuit holding as binding precedent only within the Second Circuit.  Though the Cablevision holding has clearly been influential in the development and implementation of cloud-based storage and streaming systems throughout the US, it is not formally binding on courts outside of the Second Circuit.  (And it is no accident that Aereo chose to locate and to initially launch its service within the Second Circuit.)

Cablevision proceeded to make its RS-DVR service generally available for the first time in January 2011.

Back to Aereo

In part 2 of the series, we proceed to review the litigation history of Aereo, and will see how the Cablevision precedent impacted Aereo.  Or go to our Understanding Aereo page, for access to all of our Aereo-related articles.