Billy Barnes is a JD candidate at the University of Toronto.

A year after the US Second Circuit found that remote storage digital video recorders (RS-DVRs) did not violate copyright, the High Court of Singapore has come to the opposite conclusion. The Court found that operators of commercial RS-DVR services would be liable for authorization of copying and communicating copyrighted works. The judge’s discussion of the law and expressed dissatisfaction with his own decision highlights just how strained copyright law is when dealing with the Internet.

The plaintiff, RecordTV, operated a website on which Singapore residents could choose to record and view over-the-air television broadcasts. The recordings would be made by RecordTV’s computers and transmitted on-demand to the user. RecordTV sued for a declaration that their service was legal and that the defendants’ cease and desist letters were groundless. The judge considered three issues: primary infringement, authorization, and communication of copyright works. He found RecordTV would be liable on the second two grounds and that the defense of fair dealing was not available.

Three things trouble me about this decision.

First, the finding of authorization seems to put an unsurpassable burden on RS-DVR services. Section 114 of the Singapore Copyright Act provides that recording for one’s own “private and domestic use” is not copyright infringement. The judge spends 7 pages explaining how this exception applies to users of RecordTV and then still finds RecordTV would be liable for authorization. This conclusion seems to rest on RecordTV’s failure to show that *all* of its users fell under s. 114. That is a pretty heavy burden to carry. It also poses an interesting problem when it comes time to calculate damages since there is no way to know which copies are infringing.

Second, the judge finds that RecordTV would be liable for communicating the recording to the user. In the first section, he concluded that the user–not RecordTV–is responsible for making the copy because it is the user’s action that causes the system to record a program. In this section, however, the judge finds that the user is not the one responsible for the transmission. This is the part that particularly confuses me:

If we can say that the end-user has made the infringing copy and transmitted the infringing copy, there is little to prevent us from concluding that the end-user is, in fact, an RS-DVR in disguise. For where, in that analysis, would there be room for the implication of any properly culpable technology? If the RecordTV system neither copies nor transmits any material, how can it be said to have infringed copyright? [83] The line, therefore, has to be drawn somewhere…

This paragraph begs the question. It assumes both that infringement is occurring and that RecordTV is liable and then, because they aren’t liable for recording, concludes they must be liable for transmission. The judge uses the following example to support his conclusion: the person responsible for the transmission is the one who determines the content; assume the user makes a recording and then attempts to play it; due to a technical error, the user sees scrambled video; the user can’t be said to have determined the content of the scrambled video, therefore RecordTV is responsible. I find it hard to accept that the lack of responsibility for a technical glitch says anything about the normal operation of the system.

My third difficulty is one shared by the judge himself. The judgment finishes with a nice discussion of the problems associated with the law’s current focus on the details of copying technology rather than the purposes. An RS-DVR does nothing more than a VCR and yet, because one operates remotely, it infringes while the other does not. If time-shifting is permissible, then it should be permissible however it is achieved. More distressing to me, however, is the need to replicate existing technologies. The argument in favour of RS-DVR is the analogy to the VCR, yet this requires the duplication of incidental faults of the VCR as well. RecordTV and the American Cablevision product both require that a recording be scheduled in advance (which is inconvenient) and that a separate recording be made for each user (which is inefficient). These characteristics are required because that is how a VCR works. But there is no a priori reason why a user’s right to time-shift–in countries where such a right exists–should be contingent on advance planning or why a thousand people wanting to record a particular program could not be served by the same copy. It has been observed time and again that the law cannot keep pace with technology. Technology, however, is only about means. The law can beat technology by going straight to the ends.

Posted in Copyright, Internet