Copyright Action, Singapore Dep’t

The High Court of Singapore has agreed to hear the appeal in an important copyright infringement case against RecordTV (that I blogged about a year or so ago …). It’s an interesting case on several fronts – For one thing, it replicates almost perfectly, on the facts, the very important Cartoon Network v Cablevision case from last year in the Second Circuit, and, in this globalizing world of ours, it’s always interesting to see how courts in different countries address the same issues.

The facts are pretty simple. RecordTV, like Cablevision, wants to offer consumers a “remote storage DVR” [RS-DVR] service (over the Internet, in RecordTV’s case, over cable for Cablevision). An RS-DVR lets the consumer designate a TV broadcast for recording and later playback; in all relevant respects, just like a TiVo box, but sitting not below your TV but in a remote facility somewhere.

In Cablevision, the district court (SDNY) had enjoined rollout of the service on copyright infringement grounds. Cablevision, it held, was directly infringing the broadcasters’ copyright by offering the RS-DVR service. [Full disclosure – I became involved in the Cablevision suit at this point, writing a law professors’ amicus brief submitted to the Second Circuit urging reversal). The Second Circuit did indeed reverse, in an opinion with several important copyright holdings. First off, the court held that the “copies” made by the RS-DVR system were not made “by” Cablevision but rather by the individual consumers, because it’s the consumers who perform the “volitional act” [i.e., pressing the “Record” button] resulting in the act of copying. Second, the court held that when Cablevision transmits the previiously-recorded program to the consumer, that’s a private performance rather than a public performance [even if 1,000,000 consumers were simultaneously accessing the RS-DVR service]. That’s important, of course, because the copyright holder does not hold an exclusive right to private performance of copyrighted works, only to their public performance.

So, because Cablevision was neither “copying” the copyright owners’ works nor “publicly performing” those works, they couldn’t be liable for directly infringing the plaintiffs’ copyrights. [The parties, in a pre-trial agreement, had stipulated that the plaintiffs would not bring any claims against Cablevision for contributory infringement, i.e. for secondary liability based upon infringements by consumers, and in turn the defendant would not raise the defense of “fair use.”]

It was, I believed and continue to believe, an important victory both for innovation and for logic — if an individual’s TiVo box is not an infringing device (and it isn’t, thanks to the Supreme Court’s decision back in 1984 in the VCR case, Sony v. Universal Studios), then why should a system that is fundamentally similar (though perhaps somewhat more efficient) be infringing??

The trial court in Singapore, however, went in a different direction. Although it recognized (and discussed in considerable detail) all of the relevant US precedents (including the Cablevision and Sony cases), and recognized them as persuasive authority, it nonetheless held against RecordTV and enjoined their rollout of the internet-based RS-DVR system. [The opinion is here]. This is the judgment now on appeal.

It’s an oddly disjointed opinion, and while I profess no special understanding of Singapore law, I wouldn’t be at all surprised to see the High Court overturn it. Interestingly enough, the trial court agreed with the Cablevision decision that the service’s users, not the RS-DVR operator, was responsible for making the copies. At the same time, it found RecordTV liable for (a) publicly performing the copyrighted works, and (b) secondarily “authorizing” infringements by the users.

Both parts of the holding seem misconstrued to me — just as a matter of straightforward copyright law. With regard to the public performance question, the situation remains as in Cablevision — large numbers of end-users can each record and watch individual broadcasts. Lots of private performances does not, in the aggregate, equal a “public performance.” The court, rather oddly, points to the fact that “any member of the public with an Internet connection may register [with RecordTV] for free” (its emphasis) in support of its holding and, presumably, to distinguish the situation from Cablevision’s. (Para. 77) But whether or not the performances are available to all Internet users or only to the (several million) Cablevision subscribers can’t possibly convert these private performances into a public performance, can it? The number is enormous in either case – that’s not the point. The point is that in both cases each individual consumer is sitting in his/her living room watching a television show that he/she previously selected for transmission — it’s a large number (maybe larger in RecordTV’s case, but who knows or cares?) of private performances, outside the control of the copyright holder. Nor, surely, can the fact that Cablevision charges users directly for its service while RecordTV does not turn the private into the public, can it? That would be odd — because Cablevision charges a fee the performances are private, but because RecordTV’s fee is zero that makes it a public performance? That would indeed be a perverse incentive to build into the law, a preference for the for-pay distribution of content over the free distribution of content?

And not only did the trial court find RecordTV liable for public performance of the copyrighted works, it also held it secondarily liable for “authorizing” the infringement of the individual users of the service. The court’s reasoning here was, if anything, even less persuasive. The Singapore court found an “authorization” for the users’ infringements in a statement on the RecordTV FAQ page:

“RecordTV has consulted with the Infocomm Development Authority and Media Development Authority of Singapore and accordingly obtained all necessary regulatory licenses from the Government of Singapore.”

Somehow, the court found that this “purported to authorize the copies of [the copyrighted broadcasets] that were subsequently made at the behest of its customers.” (Para 42)

More peculiarly, the court never actually found that RecordTV’s customers are, in fact, infringing when they use the RS-DVR service (and without the user infringements, RecordTV can’t possibly be liable for “authorizing” any infringements). As noted above, the Cablevision court had no secondary infringement claim before it, because of the parties’ agreement pre-trial to eliminate any such claims. Judge Ang seemed to misunderstand the implications of the omission of a secondary infringement claim in the Cablevision case; it pointed to several statements by Judge Walker, the author of the opinion, to the effect that

Most of the facts found dispositive by the district court — e.g., Cablevision’s ‘continuing relationship’ with its RS-DVR customers, its control over recordable content, and the “instrumental[ity]” of copying to the RS DVR system … —seem to us more relevant to the question of contributory liability. . . . Furthermore, in cases like Sony, the Supreme Court has strongly signaled its intent to use the doctrine of contributory infringement, not direct infringement, to ‘identify [ ] the circumstances in which it is just to hold one individual accountable for the actions of another.’ . . . the doctrine of contributory liability stands ready to provide adequate protection to copyrighted works

as implying somehow that the Cablevision court would have found Cablevision liable for contributory infringement had the question been properly presented — clearly not a proper interpretation of Judge Walker’s comments. Had contributory infringement been alleged regarding Cablevision’s RS-DVR, plaintiffs would have had to show that Cablevision had specific knowledge of particular instances of infringement by its customers. Singapore law follows US law here, and gives users broad “time-shifting” rights – in fact, not only does Singapore law have a “fair dealing” defense much like our “fair use” defense (which our courts have held cover time-shifting activities), but Singapore even has a special statutory provision permitting sonumers to make “a cinematographic film of [a] broadcast or cable programme for . . . private and domestic use.” But somehow, But Judge Ang turned the burden of proof around. After a long and rambling discussion of the relevant law, the he found that RecordTV “authorized” infringing acts, because, in the court’s words, “”there was no evidence (that RecordTV provided) to show that the end-users, without exception, were all entitled to rely upon [that special statutory defense].” (emphasis supplied). That’s a difficult, if not an impossible, burden to sustain.

Like I said, I wouldn’t be surprised if it’s overturned, and I hope it is. It’s just a TiVo, operated remotely- just like the TiVo was, in effect, just a fancy VCR. The copyright holders didn’t like the VCR, they didn’t like the TiVo, and they don’t like the RS-DVR. They have, however, lost those earlier battles (much to the benefit of consumers), and logic (and innovation policy) dictate that they should lose again. Copyright law should, ideally, be technology neutral; if it turns out to be more efficient, or more convenient, to operate these boxes from a single remote location, we should let the market sort that out, not copyright law. If we want innovation to proceed (and these arguments might well persuade the High court of Singapore, given that country’s recent push to position itself as a more innovation-friendly business environment), illogical extensions of copyright doctrine picking winners and losers from among different innovative offerings is not the way to go about it.