The Public Performance Problem in Cartoon Network, LP v. CSC Holdings, Inc.

Jeffrey Malkan, State University of New York at Buffalo

Abstract

On August 4, 2008, the Second Circuit gave its approval to a new video streaming service, Cablevision’s RS-DVR. The “RS” stands for “remote storage,” and “DVR” for “digital video recorder.” The service will enable its subscribers to record and store their TV programs in a bank of computers maintained at a central location. Cablevision will then stream performances of the programs back to the subscribers who saved them. In this way, the RS-DVR will perform the same “time-shifting” function as a traditional storage device, such as a video cassette recorder or a set-top DVR.

Will each RS-DVR transmission represent an infringing, public performance because the studios only authorized the initial, real-time telecast? Or is each transmission a permissible use of the program – that is, a private performance – because it emanates from a unique, custom-made copy? Put differently, should it matter legally whether Cablevision performs singular copies for multiple customers, as it does for “video on demand,” or multiple copies for singular customers, as it will for RS-DVR? This was the perplexing problem with which the Second Circuit grappled in Cartoon Network LP v. CSC Holdings, Inc.