# Who Presses Record? Cartoon Network v. Cablevision and the Volitional-Conduct Rule > The Second Circuit cleared Cablevision's remote DVR by deciding that the customer, not the cable company, makes the copy, and that fleeting buffers are not fixed copies at all. Topic: Copyright | Author: Lidiia Levitska | Source: Intellectual Property Law (outsideipcounsel.com) Canonical: https://outsideipcounsel.com/blog/cartoon-network-v-cablevision-rs-dvr-volitional-conduct/ A decade after the VCR survived the Supreme Court, the cable industry asked a narrower but equally consequential question: if a customer can record a show on a box in their living room, why not on a hard drive in the cable company's facility? In *Cartoon Network LP, LLLP v. CSC Holdings, Inc.*, 536 F.3d 121 (2d Cir. Aug. 4, 2008), the Second Circuit said yes—and in doing so built much of the doctrinal scaffolding that later sheltered cloud computing. Judge John M. Walker, Jr., writing for the panel, held that Cablevision's Remote Storage DVR did not directly infringe the studios' copyrights, because the customer who pressed record was the one making the copy and because the system's momentary buffers were too fleeting to count as copies at all. The decision is foundational for how courts assign responsibility when machines do the copying. ## At a glance - **Case:** *The Cartoon Network LP, LLLP, et al. v. CSC Holdings, Inc., and Cablevision Systems Corp.*, 536 F.3d 121 (2d Cir. 2008). - **Court:** U.S. Court of Appeals for the Second Circuit; opinion by Judge John M. Walker, Jr., joined by Judges Robert D. Sack and Debra Ann Livingston; decided August 4, 2008. - **Posture:** Reversing summary judgment for the copyright owners, who had sued only for direct infringement and had stipulated away any secondary-liability claim. - **Holding:** Cablevision's RS-DVR did not directly infringe. The transient buffer data was not "fixed" for more than a transitory duration; the subscriber, not Cablevision, makes the playback copy; and each unique playback transmission is not a public performance. - **Significance:** Cemented the "volitional conduct" requirement for direct infringement and the transitory-duration limit on fixation—principles that underpin modern cloud storage and remote computing. Cablevision's RS-DVR let subscribers record programs not on a set-top box but on hard drives at Cablevision's central facility, then play them back on demand. Functionally it mimicked a home DVR; technically it moved the storage into the network. The content owners, recognizing that a contributory-infringement theory might run into *Sony*'s shelter for technologies with substantial noninfringing uses, deliberately sued only for direct infringement. That litigation choice framed everything: the case turned not on whether copying was excusable, but on *who* did the copying. ## Buffers and the transitory-duration limit on fixation The first question was whether Cablevision's system itself made infringing copies as data streamed through it. To route programming into the RS-DVR, content passed through buffers, residing there for no more than about 1.2 seconds (and in one buffer roughly a tenth of a second) before being automatically overwritten. The Copyright Act defines a work as "fixed" only when its embodiment is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration" (17 U.S.C. § 101). The court read that definition to contain a genuine duration requirement, not a mere formality. Data that lives in a buffer for a second or two and is then erased, the panel held, is not embodied for "more than transitory duration" and therefore is not a "copy" within the reproduction right at all. That ruling protected not just Cablevision but every system—routers, RAM, caches—that briefly holds data in transit. ## Volitional conduct: the customer makes the copy The harder question concerned the permanent playback copies stored on Cablevision's hard drives. Those copies plainly were fixed. The dispute was who *made* them. The court invoked the volitional-conduct principle: direct infringement of the reproduction right requires some act of volition by the defendant that actually causes the copy to come into being. Cablevision designed and maintained an automated system, but the system sat inert until a subscriber selected a program and pressed record; only then did a copy of that specific program get made. The panel analogized the RS-DVR to a traditional VCR or a photocopier in a library: the proprietor who supplies the machine is not the one who "makes" each copy a user chooses to create. Because the subscriber supplied the volition that caused each copy, the subscriber—not Cablevision—was the maker. That reasoning reallocated direct liability from the service operator to the end user, a move with enormous downstream significance for cloud services. ## The transmit clause and the "unique copy" Finally, the studios argued that playing a recorded program back to a subscriber was an unauthorized public performance under the transmit clause, which reaches transmissions "to the public" whether received "in the same place or in separate places and at the same time or at different times" (17 U.S.C. § 101). The court rejected the theory by focusing on the copy from which each transmission was made. Each RS-DVR playback drew from a single, unique copy created by and for one subscriber, and only that subscriber could receive that transmission. Because the potential audience of each transmission was a single household, the performance was not "to the public." The studios' attempt to aggregate all the individual playbacks into one public performance failed. (Years later, in *American Broadcasting Cos. v. Aereo*, the Supreme Court limited this transmit-clause analysis for a different streaming service, while leaving the volitional-conduct and fixation holdings undisturbed.) ## Open questions - **How far does "transitory duration" reach?** The court drew the line at roughly 1.2 seconds, but did not specify where temporary storage becomes durable enough to be a fixed copy. - **When does an operator supply volition?** The line between offering an automated tool and "making" a copy oneself is fact-sensitive; later AI and cloud cases continue to test it. - **How do the fixation and transmit holdings interact with later precedent?** *Aereo* reshaped public-performance analysis without overruling *Cablevision*, leaving courts to reconcile the two. ## Implications - **For cloud and storage providers:** Automated, user-initiated copying generally places direct-infringement responsibility on the user, not the operator—provided the operator is a passive instrument. - **For technology designers:** Build systems that require an affirmative user command to make each copy; design choices that interpose the user's volition matter to liability. - **For rightsholders:** Suing only for direct infringement is risky against automated services; secondary-liability theories may be necessary to reach the operator. - **For litigators:** The transitory-duration requirement is a real defense for transient buffers and caches, and the "unique copy" framing remains relevant even after *Aereo* narrowed the transmit-clause result. ## Frequently asked questions **What is the volitional-conduct requirement?** To be a direct infringer of the reproduction right, a party must engage in volitional conduct that actually causes the copy to be made. In the remote DVR context, the court held that the subscriber who presses record supplies that volition, so the cable operator that built and ran the automated system is not the direct copier. **Why weren't the buffer copies infringing?** The Copyright Act protects works fixed for more than a transitory duration. Data passed through Cablevision's buffers for at most about 1.2 seconds before being overwritten, which the court held was too fleeting to be fixed, so no actionable copy was made. **Did this case decide whether remote DVRs are fair use?** No. The plaintiffs sued only for direct infringement and dropped any contributory or secondary-liability theory. Because the court found no direct infringement, it never reached fair use or secondary liability, and the Supreme Court later declined to hear the case. ## Authorities and sources - Second Circuit opinion (Electronic Frontier Foundation, PDF): https://www.eff.org/files/filenode/studios_v_cablevision/cablevision-decision.pdf - Opinion and citations (CourtListener), 536 F.3d 121: https://www.courtlistener.com/opinion/2599/cartoon-network-lp-lllp-v-csc-holdings-inc/ - 17 U.S.C. § 101 (definitions of "copies," "fixed," and the transmit clause), Cornell LII: https://www.law.cornell.edu/uscode/text/17/101 - 17 U.S.C. § 106 (exclusive rights, including reproduction and public performance), Cornell LII: https://www.law.cornell.edu/uscode/text/17/106 - Case overview, Wikipedia: https://en.wikipedia.org/wiki/Cartoon_Network,_LP_v._CSC_Holdings,_Inc.