Most people assume that consumers have a fair use right to time shift television to watch at a later time. As a result, lots of companies now sell digital video recorders (DVRs) that enable you to do this, including TiVo, and it's generally accepted that selling DVRs is perfectly legal (of course, the movie studios still don't like it, as demonstrated by their lawsuit against ReplayTV).

Should the answer be any different if a cable company gives subscribers the ability to record programs to a remote server, rather than to a hard drive sitting in the DVR in their living room?

Unfortunately, at least one judge seems to think so. If he's right, then lots of remote computing services could be in serious legal trouble. What if someone uses Amazon's EC2 service to commit copyright infringement? Is Amazon automatically liable, even if they had no idea? What about Google Apps? What about drugstore photo printing kiosks where customers can send their photos for automatic printing and pick-up? These are all examples of the kinds of tools that consumers can now remotely control in order to make copies.

So, if you make a machine remotely available to a customer, and the customer uses it in an infringing way, are you more vulnerable to a copyright infringement lawsuit than someone who sells a device that does the same thing?

That's the question raised in 20th Century Fox v. Cablevision (aka Cartoon Network v. CSC Holdings), now on appeal to the Second Circuit Court of Appeals in New York. The district court ruled against Cablevision, finding that it could be held as a direct infringer of both the reproduction and public performance rights for making remote DVRs available to its customers. The court also found that the brief buffer copies made in RAM by Cablevision's remote DVR servers count as independent infringements.

These rulings threaten to put the providers of remote computer services at a distinct disadvantage as compared to makers of stand-alone devices when it comes to offering new innovations to their customers. This makes no sense as a matter of copyright policy.

In an amicus brief filed on Friday, EFF joined the Center for Democracy and Technology, Public Knowledge, NetCoalition, Broadband Service Providers Association, USTelecom, American Library Association, American Association of Law Libraries, Association of Research Libraries, Medical Library Association and Special Libraries Association urged the Court of Appeals to overturn the lower court ruling.

Let's hope the court understands that more is at stake here than just Cablevision's remote DVR.