Ed Felten on Cablevision

As usual, Ed Felten offers a well-conceived analysis of the Cablevision decision from a technologist’s perspective (for a lawyer’s perspective, see William Patry). The money quote:

The question, in other words, was who was recording the programming. Was Cablevision doing the recording, or were its customers doing the recording? The customers, by using their remote controls to navigate through on-screen menus, directed the technology to record certain programs, and controlled the playback. But the equipment that carried out those commands was owned by Cablevision and (mostly) located in Cablevision buildings. So who was doing the recording? The question doesn’t have a simple answer that I can see.

This general issue of who is responsible for the actions of complex computer systems crops up surprisingly often in law and policy disputes. There doesn’t seem to be a coherent theory about it, which is too bad, because it will only become more important as systems get more complicated and more tightly intereconnected.

Agency, intent/scienter, and responsibility are indeed tricky issues with software and the law. I’ve experienced the problem in my own practice. Although it arises particularly frequently in copyright disputes, it is also common in patent and trademark cases (and of course contract disputes inasmuch as clickwrap-type agreements are implicated). I don’t have any coherent theory to propose, but a more uniform framework would certainly introduce some predictability into these sorts of cases (and thus perhaps avoid litigation).

Update: Mike Madison also has some interesting comments on the case.