P suing D over RS-DVR which records and plays back television shows to third party viewers.
P alleges: D’s proposed operation of the RS-DVR would directly infringe their exclusive rights to both reproduce and publicly perform their copyrighted works.
-Is the D, in making the RS-DVR available to the public, liable for copyright infringement?
HOLDING-No, Court concludes that copies are produced by RS-DVR customer, not P, and P’s contribution to the reproduction by providing the system does not warrant the imposition of direct liability.
→ Copies as defined in the copyright act are material objects in which a work is fixed by any method and from which the work can be reproduced. A work is fixed in a tangible medium of expression when its embodiment is sufficiently permanent or stable to permit it to be reproduced for a period of more than transitory duration.
→ The work must be embodied in a medium, i.e., placed in a medium (the embodiment requirement) AND it must remain embodied for a period of more than transitory duration (duration requirement).
-Loading a program in a computer’s RAM can (but does not always) result in copying that program.
-An embodiment is FIXED unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated.
⇒ Ask: 1) whether a work is “embodied” in that medium, and 2) whether it is embodied in the medium for a period of more than transitory duration.
-Here the court stated that the duration requirement was not met because the works in this case were only embodied in the buffer for 1.2 seconds, and each bit of data was rapidly and automatically overwritten as soon as it was processed.
-The question is: who made this copy?-Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a D’s system is merely used to create a copy by a THIRD PERSON.
-To establish direct liability under the Act something more must be shown other than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner itself trespassed on the exclusive domain of the copyright owner.
-The court states: 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.
-Volitional conduct is an important element of direct liability.
Link to case: 536 F.3d 121 (2008)