Tuesday, March 23, 2010

The Singaporean Cablevision Case

Many countries around the world are wrestling with similar, evolving copyright issues in response to new digital technologies. In facing common issues, courts sometimes share insights, but when they do, it's critical that they recognize the full procedural context of a decision from another country, as well as specific substantive legal elements. A recent opinion in Singapore regarding remote storage DVRs shows this danger. Although the facts are complicated given the change in the system in question over time, at bottom the Singaporean litigation – against RecordTV – is for most purposes the same case as the remote storage DVR dispute, Cartoon Network v. Cablevision, decided by the Second Circuit, and in favor of the defendant, Cablevision.

In reading the Singaporean judgment below – a very comprehensive one by Justice Ang -- one gets to the end expecting the same result as in the Second Circuit, only to find judgment for plaintiff. Hopefully, the High Court will reverse. The disparity between the trial court’s findings of fact and its conclusions of law, as well as a misreading of Judge Walker’s opinion in Cablevision, are responsible for much of the disconnect. The principal misreading was based on the posture of Cablevision: a direct infringement suit against Cablevision, rather than as inRecordTV, a secondary liability suit. This posture was the result of the plaintiff’s fear – justifiably – that they would have lost on a secondary liability claim because of the Supreme Court’s Sony opinion: users of Remote Storage DVRs are engaging in fair use, and just like VCR manufacturers, those supplying Remote Storage DVRs are supplying a staple article of commerce that has substantial non-infringing uses. Plaintiffs claiming otherwise bear the burden of proving infringement.

Nothing in the Second Circuit’s opinion is contrary the conclusion that on the facts, a claim of contributory infringement would have failed; indeed, during oral argument it was quite clear to me the court of appeals would have held for Cablevision had the case been brought as a secondary liability case. Judge Ang thought to the contrary, and he was in this regard, I respectfully submit mistaken. He certainly was mistaken as a matter of Singaporean fair use law, given the statutory provision permitting consumers to make “a cinematographic film of [a] broadcast or cable programme for . . . private and domestic use.”

One could understand Judge Ang’s opinion if he had found that RecordTV and not consumers make the copy, but he didn’t: he agreed with the Second Circuit that users, not RecordTV make the copies. Yet, Judge Ang found RecordTV liable for “authorizing” infringements by the users. Authorizing a fair use cannot form the basis for a finding of contributory infringement since there must be a primary infringement to contribute to. Perhaps the court was influenced by the number of people who can access the service, a possibility that is heightened by its finding that RecordTV was engaging in a public performance. However, two million private performances do not make one public performance, no more than gathering together in an unoriginal way two million uncopyrighted facts results in a copyrighted compilation, as we learned from the Feist opinion. A stream that can be seen only by one viewer is a private performance, else the very distinction between public and private would be erased.

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