The Texas governor's office retained its email for seven days before it was automatically deleted.  That is, until one software engineer began sending batch requests every four days to prevent the deletion of those records.  As a result, the governor is looking into changing its policy.  Score one for the little guy.

In a case with far-reaching consequences, the Second Circuit in Cartoon Network. v. CSC Holdings softened the definition of "fixation" refined the circumstances under which a volitional element of "direct infringement" must appear, and clarified the definition of public performance.  Cablevision was sued based on the DVR functionality that it offered consumers, in which it allowed consumers to begin taping a show not on their own hard drive, but remotely on Cablevision's servers.  They could then view that show at their convenience.  

As part of their theory, the studio plaintiffs alleged that the buffer copies created in the course of this process constituted infringing copies.  In MAI v. Peak, the 9th Circuit found that the fixation of software in RAM constituted a copy of a computer program.  Section 101 of the Copyright Act states that a work is "fixed" (e.g., copied) when it is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."  The Second Circuit distinguished MAI on the basis that in that case, the computer program remained resident in RAM for the entire portion of use.  In this case, the copies of motion pictures in the DVR system's buffers were immediately overwritten.  They did not exist for more than a period of "transitory duration" and were therefore not infringing.

Next, the court broadened the applicability of the Netcom case, stating that Cablevision did not have the necessary intent to be directly liable for infringement.  More specifically, the way the DVR system worked, the consumer initiates any copy that is made on the system.  Like the operator of a VCR, it is the consumer who is responsible for the direct copy and not the VCR manufacturer. 

Finally, the court rejected the studio's position that the transmission of the  work back to the consumer at a later time via time-shifting constituted a public performance.  The court found that the definition of  "public performance" turns on the potential audience for a transmission, not the audience for a work.  

The decision does NOT address the contributory liability of the cable system (e.g., Betamax II) .  And it's probably not over.  The seeking of Supreme Court review is certainly plausible.  In any event, it's a big deal.  We encourage those interested to read it.