When does being a thing matter?  More below the jump.

William Patry has some reservations about the recent district court opinion in Twentieth Century Fox v. Cablevision, which holds that Cablevision’s remote DVR service makes Cablevision liable for direct infringement — twice:  once when customers request that programming be recorded, and a second time when they request that the programming be played back.

Why is it not legal for a consumer to appoint Cablevision as agent to handle technical aspects of something that a consumer could do him or herself — record and play back TV programming via a VCR?  The court was impressed by this: 

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. An RS-DVR customer would not be able to disconnect his or her home set-top box, connect it elsewhere, and record programming. This is because the RS-DVR is not a single piece of equipment; it consists of a multitude of devices and processes. Unlike a VCR, the simple push of a button by the RS-DVR customer does not produce a recording. The pushing of the “record” button on the remote control merely sends a request to Cablevision’s head-end to set the recording process in motion. The various computers and devices owned and operated by Cablevision and located at its head-end are needed to produce a recording.

Indeed, ownership of the RS-DVR set-top box remains with Cablevision and the RS-DVR requires a continuing relationship between Cablevision and its customers. In Sony,“[t]he only contact between Sony and the users of the Betamax … occurred at the moment of the sale.” 464 U.S. at 438. In stark contrast, Cablevision would not only supply a set-top box for the customer’s home, but it would also decide which programming channels to make available for recording and provide that content, and it would house, operate, and maintain the rest of the equipment that makes the RS-DVR’s recording process possible. Cablevision has physical control of the equipment at its head-end, and its personnel must monitor the programming streams at the head-end and ensure that the servers are working properly. (Tr. 52-54, 75-76). 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. On the other hand, once Sony sells a VCR to a customer, Sony need not do anything further for the VCR to record.

The ongoing participation by Cablevision in the recording process also sets the RS-DVR apart from the STS-DVR.

A VCR is a standalone thing, in other words, and that puts the remote DVR — a networked “service” — in a categorically different legal place.

Randy Picker has argued that standalone things and networked devices should be treated as part of the same legal universe.  The “phone home” capabilities of networked digital devices should impose greater legal obligations on device suppliers to design those devices — on an ongoing basis — to limit the harm that they cause.  Moreover, the choice to release a standalone device should itself be subject to greater scrutiny (rather than the deferential standard offered by Sony), precisely because the designer could have chosen the phone home route, and should not evade scrutiny by not doing so.  Metaphorically, in this forumulation the VCR is not a standalone “thing” so much as a networked device with the network cable unplugged.

Personally, I agree that conceptually, standalone things and networked devices are part of a continuum, but the liability issue — in light of our deep and abiding interest in and affection for “things” — likely should push in the other direction, and away from a duty of ongoing design.  When “being a thing” matters should rest presumptively in the hands of consumers, in other words, rather than designers; if I treat Cablevision’s remote DVR as the equivalent of my VCR, then I’ve broken down the idea of the standalone VCR — and in the interest of efficiency (or cultural integrity; take your pick of frame), that’s a choice of practice that the law should respect.  But agree with Randy, or agree with me — either way, the Cablevision decision seems to rely on an unsustainable technological distinction.

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