Cablevision's "remote server" DVR service got a boost Monday when an appeals court reversed a lower court decision that said it infringed on content holders' copyrights.

RS-DVR does not infringe upon the rights of content holders just because it stores its recordings on Cablevision servers rather than on the actual DVR devices, according to the U.S. Court of Appeals for the Second Circuit.

To the customer, RS-DVR functions exactly like TiVo or any other cable company DVR offering, but instead of the recorded shows being stored on the set-top box's hard drive, the shows are stored on Cablevision servers and beamed to customers when they choose to watch them.

Content providers like Cartoon Network, CNN, Twentieth Century Fox, Universal, Paramount, and Disney, as well as the major networks, sued Cablevision because they said RS-DVR operated more like a video on-demand (VOD) service than a DVR. Cablevision should, therefore, be required to obtain licenses from each provider before allowing customers to view the content via RS-DVR, according to the lawsuit.

A judge in the Southern District of New York agreed with the content providers, and ruled in March 2007 that Cablevision must stop offering RS-DVR until it received licenses for the content.

According to the 2007 ruling, RS-DVR infringes in three ways: the initial storing of the recorded content violates the Copyright Act; Cablevision's copying of the programs to its servers violates reproduction rights; and transmitting the data from the servers to the customers' set-top boxes infringes on the right of public performance.

The appeals court, however, sided with Cablevision.

On the first point, the appeals court found that initial buffering does not constitute actually making a copy of the programming.

Second, the appeals court finds that it is the customer who makes the copy of the program, not Cablevision since it is the customer who decides what to record.

"Cablevision has no control over what programs are made available on individual channels or when those programs will air, if at all," according to the Monday ruling. "In this respect, Cablevision possesses far less control over recordable content than it does in the VOD context, where it actively selects and makes available beforehand the individual programs available for viewing."

Much like users with VCRs or TiVo's, the individual subscriber "has significant control" over the content they record, the court found.

On the right of public performance point, the courts differed in how they examined it. The district court in 2007 considered all the people who had DVR'd a specific show whereas the appeals court looked at it on an individual basis.

Looking at it from the appeals court perspective, a transmission to one individual subscriber does not constitute it being broadcast "to the public" any more than it does with someone taping something off the TV with a VCR or TiVo, the court found.

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