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Reversing the district court, the Second Circuit today held that Cablevision’s proposed “Remote Storage Digital Video Recorder” does not give rise to direct copyright infringement liability for Cablevision.

The opinion:

• Construes MAI v. Peak to hold that RAM copies can be “fixed,” not that they are always fixed, and imposes a “duration requirement” on fixation, finding that while copies that lasted for “several minutes” could be fixed, copies lasting for only a few seconds were only “of transitory duration,” even though they lasted long enough to be copied.
• Holds that the Netcom/CoStar “volitional conduct” analysis for separating direct from contributory infringement has general application, and is not limited to internet-related copyright issues.
• Holds that transmission “to the public” requires that a particular transmission stream is capable of being received by the public (not just by a single subscriber). This means that the “public-ness” of a performance is measured with respect to one particular transmission, and not in the aggregate across a course of many transmissions. The court explicitly says that it looks only downstream to analyze whether a transmission is a public performance.