If Remote DVRs Are Legal... What About Remote DVD Players?

from the pushing-the-boundaries dept

Fri, Mar 18th 2011 4:11am — Mike Masnick

Technology often demonstrates just how ridiculous our copyright laws are. We were just discussing the legality of remote DVRs, which have been found to be legal in the US and Singapore, but infringing in South Korea and Japan (Update: as pointed out in the comments, there are still some liability questions in the US, concerning whether or not a remote DVR provider could have secondary liability -- but I can't see how there would be secondary liability without direct infringement, and since time shifting for personal use is not infringement...). Of course, if a remote DVR is legal... then what about a remote DVD player. It seems like that should be legal as well. As TorrentFreak points out, that's exactly what the streaming movie service Zediva is testing. The company lets you stream movies online -- including movies that the studios haven't licensed for streaming. How? Because it's literally renting the DVD you want, putting it in a networked DVD player, and letting you (and only you) stream the results.

Of course, I imagine the studios will go ballistic (and legalistic) quickly on this one, but it's difficult to argue with the basic premise. After all, if both time-shifting and place-shifting are legal, then what wrong is being done here? Why should it require a separate streaming license? No matter how you think about it, the situation demonstrates that today's copyright laws are confused. After all, if it's perfectly legal for you to set up a DVD player in your own house, and then watch that remotely (e.g., via a Slingbox), why should it not be legal to have a company host the DVD player, and you just watch from home? There's no good reason why the two should be treated differently.

But, at the same time, Enigmax at TorrentFreak properly points out that from a technological perspective, this whole thing is stupid. It's purposely downgrading what the technology allows:

So while the system to get round the usual studio imposed release window nonsense is quite clever, it is also ridiculously old fashioned. It's 2011 and we�re relying on physical DVDs and DVD players? Getting messages that someone else has rented the movie needed already?

These problems were largely solved a decade ago and any torrent, streaming, or decent file-hosting site today can provide a better service than this in the blink of an eye.

Except Hollywood won't let them, legally at least.

In other words, if we can agree that the location of the DVD player is meaningless if you're watching the movie at home, can't we also agree that the physical medium on which the content is stored is meaningless? Is it really that different if you're sitting in your house watching a remote DVD of the movie... or content streaming from a remote hard drive? It seems to matter, deeply, to those in Hollywood, but from a technology standpoint, it seems completely nonsensical.

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Filed Under: copyright, legality, remote dvds, remote dvrs
Companies: zediva

71 Comments

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The eejit (profile), 18 Mar 2011 @ 3:53am

Hey, Mike, at least they're trying. Not like those whackjob execs at the MAFIAA.
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Capitalist Lion Tamer (profile), 18 Mar 2011 @ 4:58am

It's a ridiculous setup that's dependent on the ridiculousness of arbitrary release windows. I'm sure the response will be pressing the "Release the Lawyers" button, because the best response, "Remove the Gatekeeping" is completely unacceptable.

You'd think that the MPAA's vindictiveness would trigger the second response first. "Trying to make money by working around our complicated release scheme? Fine, we'll just start making everything available all the time."

It worked for Letterman. "If you try to blackmail me, I'll go public." It would work but I guess the industry is really more interested in power than money.
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Michael, 18 Mar 2011 @ 5:01am

Brilliant
It's a simple, brilliant solution. Not only is it going to self-generate advertising by creating a big legal battle with the entertainment industry, but it is such a technology mess that every techie on the internet is going to blog about how stupid it is that they have to do this.

It's a promotional gold mine. They should be selling ads on their "registration temporarily closed" page.

Hope they don't get sued out of existence before I get a chance to try it.
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John Doe, 18 Mar 2011 @ 5:10am

Netflix and others should be able to stream movies
If Netflix buys 10,000 DVDs, they should be able to copy them to a server and stream the movie up to 10,000 people at any given time. This is technically no different than renting the DVD itself. Having to ship the physical DVD back and forth is bass ackwards.
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Anonymous Coward, 18 Mar 2011 @ 5:25am

I am a Zediva user in the UK watching movies not yet released for the UK. We really enjoy the service.

While it does seem absurd to go back to physical media, it is often the low tech solutions that work, partly because no-one ever thought something that low tech would be deployed.

Do you think the legal angle would change if I actually owned the DVD player as well? I could pay Zediva a realistic price for a DVD player and they only use that player for me.

I am not suggesting this for real, just pondering the legal nuances.
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John Duncan Yoyo, 18 Mar 2011 @ 5:25am

Re: Netflix and others should be able to stream movies
Alternately they buy a ton of multidisc DVD players and load them up with movies. Popular ones will be on all the DVD players and on the smaller 5 disc or even 1 disc units while less popular stuff will be in the 300 and 400 disc units.

This way Sony will make some more money on the deal selling the big multidisc players.
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Michael, 18 Mar 2011 @ 5:29am

Re: Re: Netflix and others should be able to stream movies
That appears to be what Zediva has done - basically to try to get around laws that say it is different to play a DVD than it is to rip that DVD and play it from a hard drive.

Now, I wonder if you played the entire movie into an extremely long buffer and kept the buffer for playback...
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Anonymous Coward, 18 Mar 2011 @ 5:32am

And this is why...
...torrents are so wonderfully popular. If the MPAA had any sense (which it does not) or intelligence (which it does not) or clue (which it does not) it would be selling non-DRM'd hi-def movies online for $1.99. Which is where book, music and movie prices are inevitably headed, and nobody can stop it.
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Mike C. (profile), 18 Mar 2011 @ 5:36am

Re:
I really don't think they're interested in power as much as making sure they don't miss a single "penny of opportunity". In other words, if there is revenue to be earned in any way possible from a movie (or song in the case of the RIAA), then only they should be allowed to do so and they should get every potential penny available.

It is pure unadulterated greed driven by an irrational fear of their shareholders rather than stepping back and looking at the needs of their customers. Many corporations have fallen into the trap of believing that the shareholders and the company stock price determine the health of the company instead of their products/services and the customers that buy them. I keep hoping they'll wake up, but so far very few have shown signs of stirring.
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Michael, 18 Mar 2011 @ 5:37am

Re:
"Do you think the legal angle would change if I actually owned the DVD player as well? I could pay Zediva a realistic price for a DVD player and they only use that player for me."

Interesting. That would be another place to have the line, but remote DVR services don't need the customers to own the equipment. You may have to further define what you mean by DVD player - do you need to own a DVD drive, the drive and the computer that plays the movie, the webserver responsible for streaming it...?

"I am a Zediva user in the UK watching movies not yet released for the UK"

Wow - another can of worms with this service. They have allowed you to circumvent the regional settings on the DVD. That should be another mess for them to deal with soon...
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Matt, 18 Mar 2011 @ 5:43am

Re: And this is why...
I agree that the market wants to push prices down....(especially ebook pricing which is retarded) but why in the world did you pick $1.99, and for each of the three products? Thats every bit of a made up number as any other price out there.
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Bengie, 18 Mar 2011 @ 5:47am

Both are remote
One could argue that a local DvD streams data over a connection just like a remote DvD, so what's the difference?

One DvD, one person.
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hobo, 18 Mar 2011 @ 6:14am

Re: Re:
I think a more accurate statement would be something along the lines of, "I really don't think they're interested in power as much as making sure they don't miss a single penny of assumed opportunity on each viewing."

If they really wanted to bring in more cash, they'd look at what e-book sellers are doing. Much lower price multiplied by much much higher volume equals more profit. While the basics would need to be tweaked to account for differences in medium (file size and server load to stream a movie versus download a e-book, for example), it is still a model that might be worth exploring.

Instead, the studios and MPAA form a cabal and set prices because it is more important that 5 people over pay rather than having 10 or 20 or 50 see the movie at a reasonable price. Do the math on the potential word of mouth there.
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surfer, 18 Mar 2011 @ 6:21am

well..
well, being as the studio has already regained massive profits from the box office, that paid for the movie, and created profit. Any additional sales are gravy that are typically not subsidized into the budget projections for the movie to begin with. Once there were no DVD/VHS sales, were those lost profits prior to invention? I bet if you as the MAFIAA, they would conclude 'yes, emphatically yes!'. So the ancillary market should be priced as low as possible to attract as many customers as possible, Economics 101.

There is no such thing as 'lost profits', there is however 'missed opportunities' to sell your product, and that is not the customers' fault, its' the MAFIAA's.
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Rekrul, 18 Mar 2011 @ 6:33am

But, at the same time, Enigmax at TorrentFreak properly points out that from a technological perspective, this whole thing is stupid. It's purposely downgrading what the technology allows:

Exactly the point I've made before. Technology keeps improving and enabling things that were never possible before, but at every step of the way, it has to be intentionally hobbled to please the entertainment industry.

Video tapes were region-limited by the TV standard that they used. DVDs offered a way around that, so the industry had them hobbled with region coding. HD equipment offers greatly improved image quality, so the industry had it hobbled with HDCP. Devices like the iPod offer a convenient way to take both audio and video with you, so the industry had it hobbled with DRM that forces you to go through hoops to "authorize" your content. Broadband internet offers a great way to deliver games to people, so they have to be hobbled with activation and remote server checks. The list goes on and on...
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Anonymous Coward, 18 Mar 2011 @ 6:51am

Actually, they are very likely to get in trouble because of the conversion process. They move it from DVD to "streaming", because they aren't providing the output that a dvd would normally generate. There is no simple way to transmit HDMI, Svideo, or "composite" video in it's original format. As soon as it moves to the digital realm, it is no longer a DVD player, it is just a streaming device.
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Anonymous Coward, 18 Mar 2011 @ 7:00am

We were just discussing the legality of remote DVRs, which have been found to be legal in the US and Singapore, but infringing in South Korea and Japan.

Mike--

I don't know why you always leave off the part of the Second Circuit's opinion where they said that remote DVRs opened Cablevision up to secondary infringement liability. The court didn't say they were "legal." They said remote DVRs didn't make Cablevision direct infringers. But then they said that it did make them secondary infringers. The plaintiffs hadn't pleaded secondary liability, so the court couldn't rule on it. They still went out of their way to point out how they would have ruled if the case had been pleaded differently.

THAT'S why the remote DVR thing never took off. Anyone thinking of getting into to the game only had to read the Second Circuit's opinion to understand what kind of liability they'd be opening themselves up to.

I can't help but think you are intentionally misrepresenting that case--as you do most things--to make it sound like it stands for something it does not. This sort of thing does not help your credibility. I've pointed out this error to you before, yet you continue to lie about what the Second Circuit said in the Cablevision case. Manipulate much?
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shmengie (profile), 18 Mar 2011 @ 7:07am

"Of course, I imagine the studios will go ballistic (and legalistic) quickly on this one..."

and this, mike, is the premise of your entire article. you imagine they will go ballistic, but so far, no one has. i'm generally on board with you, but today, i think, you're just spreading the fud.
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Anonymous Coward, 18 Mar 2011 @ 7:13am

Re:
Links, or it didn't happen.
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Anonymous Coward, 18 Mar 2011 @ 7:22am

Re: Re:
http://www.scribd.com/doc/4490651/cablevision-remote-dvr-2nd-circuit-ruling

Around page 21-22
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Anonymous Coward, 18 Mar 2011 @ 7:22am

Re: Re:
Mike embedded it here: http://www.techdirt.com/articles/20080804/1218551884.shtml
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Anonymous Coward, 18 Mar 2011 @ 7:33am

Re:
Mike imagines a lot of things. It's what keeps his site so amusing, because so many people think that what he imagines is true.
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Josh in CharlotteNC (profile), 18 Mar 2011 @ 7:38am

Re:
Actually, they are very likely to get in trouble because of the conversion process.

The same conversion process that my DVD player does between it and my TV? Wrong, that's legal.

They move it from DVD to "streaming", because they aren't providing the output that a dvd would normally generate. There is no simple way to transmit HDMI, Svideo, or "composite" video in it's original format.

They're taking the output that an actual DVD player does provide, and encapsulating it in IP packets. It is an incredibly simple process of which there are hundreds of legal solutions.

As soon as it moves to the digital realm, it is no longer a DVD player, it is just a streaming device.

What's DVD stand for again? Oh, that's right. Digital Video Disc. It was digital before it left the DVD manufacturer.

The length of the wire transmitting the data, or the protocol used to transfer the data doesn't make something illegal if everything on both sides of the wire is legal.
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Anonymous Coward, 18 Mar 2011 @ 7:38am

In other words, if we can agree that the location of the DVD player is meaningless if you're watching the movie at home, can't we also agree that the physical medium on which the content is stored is meaningless?

You are asking two questions without asking the important third question: Can we allow a third party to do all that work for us, and be certain that the third party isn't breaking the law?

When you think about it, all they are doing is "redigitizing" every request. Would it be any different if they just digitized the movie once and then let people download the copy, digitized, when they wanted, say using a torrent format to avoid making it heavy on their networks?

There is also the question of liablity in distribution of content outside it's permitted area. Example, if they take a Zone 1 movie, and allow a user in Zone 5 to view it. Maybe a movie that hasn't been released yet in the UK, but is already on DVD in the US - if they let a UK viewer watch that movie, have they broken the law? My guess is that they have, because they are distributing in the UK without permission.
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Josh in CharlotteNC (profile), 18 Mar 2011 @ 7:43am

Re:
Would it be any different if they just digitized the movie once and then let people download the copy, digitized, when they wanted, say using a torrent format to avoid making it heavy on their networks?

Are you accusing Zediva of torrenting movies?

I would say the evidence doesn't back you up on that.

But when do you care about evidence?
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Anonymous Coward, 18 Mar 2011 @ 7:58am

Re:
you're just spreading the fud

Winner, winner, chicken dinner!

Whenever Mike talks about subjects I know about, I see all the things he's left out and how he's twisted it to support his agenda. This leads me to ASSUME that he's doing the same thing with subjects I don't know much about. Why wouldn't he be doing the same thing?

Whether the misrepresentations and FUD are the product of intent or ignorance is left as an exercise for the reader.
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Anonymous Coward, 18 Mar 2011 @ 8:03am

Re: Re:
No, I am not accusing them of torrenting movies at all. What I am saying is that it is a couple of very short hops from "here" to "there". What would happen if it turned out that the DVD players were just a front, and that the vast majority of users were being served from pre-digitized movies? Is it a very long step between there and just pushing it out as torrents instead?

Does the format they use for the digitization allow the movies to be captured and recorded locally, and in turn used as the basis for torrent files? Are they just making it more easy for people to obtain digital copies to spread?

Does the service buy a physical DVD player for each user, put their name on it, and allow only them to use it? Or it is a shared device?
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RD, 18 Mar 2011 @ 8:03am

Re:
"Example, if they take a Zone 1 movie, and allow a user in Zone 5 to view it. Maybe a movie that hasn't been released yet in the UK, but is already on DVD in the US - if they let a UK viewer watch that movie, have they broken the law? My guess is that they have, because they are distributing in the UK without permission."

Not certain about the UK, but in the US the answer is "NO"

Lets be clear for those in the cheap seats, those people that think no matter what Hollywood does, it must be right or correct:

REGION CODING IS NOT A LAW. It is an invented restriction created by hollywood to restrict content in different regions of the world. There is no "region coding" law on the books, therefore there is no law being broken. It's a licensing scheme that at worst is a breaking of some kind of contract, but there is no law about it directly.
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Mike C. (profile), 18 Mar 2011 @ 8:10am

Re: Re: Re:
See... you added logic to the mix. They don't do that.

From my standpoint, I see it as an executive saying "We got at least one person to pay the higher price which means the product should cost the higher price to everyone. Otherwise, we're losing money."

They don't bother to look at a common price vs volume comparison because it's all about maximizing PER UNIT net profit. Most people who have seen consumer behavior in the face of a sale price vs regular priced item understand that you can drastically increase overall net profit by reducing the per item net profit. Entertainment execs don't seem to think that way.

Maybe it's because they don't buy anything on sale or actually go to the stores themselves? Yeah, yeah, that's it... they're too busy scooping up cash for themselves that they don't bother shopping with the unwashed masses... lol.
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Hephaestus (profile), 18 Mar 2011 @ 8:11am

Re:
"DVDs offered a way around that, so the industry had them hobbled with region coding."

If the company goes cross regional. I wonder if the movie studios are going to use the region code issue to try and squash this.
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lnr, 18 Mar 2011 @ 8:24am

brilliant
your idea is brilliant. ( no sarcasm ). LOL.
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Atkray (profile), 18 Mar 2011 @ 8:46am

Re: And this is why...
If a studio was to put their entire catalog online for instant streaming for a monthly fee of $9.99 their only problem would be where to stack all the money.
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BigKeithO (profile), 18 Mar 2011 @ 8:52am

Re: Re: Re:
A better question is why would this be illegal at all?! I don't get why the rights holders are so against making money. Is it because they don't think its enough money? Or they just hate the idea of people getting movies any other way but through discs?
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The eejit (profile), 18 Mar 2011 @ 8:54am

Re: Re:
Correction - it was Digital Versatile Disc before the MAFIAA got involved.
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Jay (profile), 18 Mar 2011 @ 8:59am

Re: Re: Re: Re:
And I'm sure that people realize that nowadays, making a DVD doesn't cost all that much.

I hate to say it, but this is why the porn industry flourishes. Make it cheap, sell it cheap.

Don't discount the ones that are trying to sue all over the place. What's amazing is the networks that flourish in the sex industry as a whole and how so many stars profit from it.
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The eejit (profile), 18 Mar 2011 @ 9:01am

Re:
No, it said that they could be liable for secondary infringement; on page 20 of the official ruling, it also states that Cavblevision were not liable on account of the transitory nature of the recording.

The ruling says that, under the strictest interpretation of the laws (as mentioned in the plaiuntiffs' amici briefs, they would be liable for direct infringement; however, the caselaw presented meant that this would be a massive contortion of copyright.

Good try, but bad trolling.
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Anonymous Coward, 18 Mar 2011 @ 9:03am

Re: Re: Re: Re:
They aren't against making money, they are for making money. What you saying is that they should step over a dollar to pick up a penny, because the penny is there.

Windowed released (aka, the limited pre-releases before the actual retail release) are there to make money. They provide the public with various price points and timing options. You want to see it at the theater, in the pre-retail "theater only" scarcity? You pay for it. $10 each.

You want to see it on the pre-release PPV channel? No problem, that is $5 price point, as many people as you can put in front of the TV. That comes about 60 days after the other pre-release to theaters.

Rental? Buy a copy? Each has it's time and it's price.

It is all about scarcity and people willing to buy the scarcity.

This service (as one poster mentioned) shortcuts the line, making things available to people who should not be able to get it, and potentially out of window. That isn't profitable at all.
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Anonymous Coward, 18 Mar 2011 @ 9:05am

Re: Re:
RD, if movie isn't licensed for retail in a country, importing it and making it available would be violating copyright, as the rights holder would lose their rights.

Region coding in itself isn't in the law - it doesn't have to be.

(I notice more upper case too... perhaps an extra dose before bedtime tonight?)
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The eejit (profile), 18 Mar 2011 @ 9:10am

Re: Re:
Says the Anonymous Coward who repeatedly refuses to clarify.
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The eejit (profile), 18 Mar 2011 @ 9:12am

Re: Re: Re: Re: Re:
So why not give a film, say, two weeks before releasing the DVD/BD, instead of the bullshitery that is three months?

Oh wait, it's ALL about the pennies.
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The eejit (profile), 18 Mar 2011 @ 9:14am

Re: Re: Re:
So it's illegal for region coding to even exist. Good to know.
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RD, 18 Mar 2011 @ 9:54am

Re: Re: Re:
"RD, if movie isn't licensed for retail in a country, importing it and making it available would be violating copyright, as the rights holder would lose their rights.

Region coding in itself isn't in the law - it doesn't have to be."

Completely and utterly wrong. What a bunch of shill-serving hogwash you just wrote. Licensing is a CONTRACT (and fuck yes, I am going to capitalize for emphasis, because some people need to be hit in the face with a 2x4 to get it through their thick skulls). A contract between two parties has ZERO to do with the underlying copyright on the item being licensed.

And your implication that region coding is already implicit in the "law" because of this just serves to further show how clueless you are about laws, contracts and licensing.
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btr1701 (profile), 18 Mar 2011 @ 9:55am

Re: Probability
> you imagine they will go ballistic, but
> so far, no one has

While very little is certain in this world, if you watch the sun rise every day in the east for years, you can be fairly certain in predicting where it will rise tomorrow.
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btr1701 (profile), 18 Mar 2011 @ 9:59am

Re: Re: Re:
> if movie isn't licensed for retail in
> a country, importing it and making it
> available would be violating copyright,
> as the rights holder would lose their rights.

Not if the person bought all the physical copies legitimately. The rights holder made their money off that sale. That's all they're legally entitled to. The person who bought them now owns the physical discs and can resell them at his whim. Just like I can sell all my old laserdiscs or vinyl albums at a garage sale if I want. No law being broken.
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Anonymous Coward, 18 Mar 2011 @ 10:16am

Re:
THAT'S why the remote DVR thing never took off.

Looking around the internet, I see that Cablevision has recently launched "DVR Plus" which is this same basic remote DVR idea. What's unclear to me is if they are testing the legal waters or if they've cut deals with the content providers to avoid the legal issues. I'd be very surprised if they were pushing their luck after that ruling in the Second Circuit.
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Adam, 18 Mar 2011 @ 10:19am

About 30 years ago the university where I taught bought AutoCAD "seats" for its engineering server. A seat was equivalent to one live user and the server would only load up to the number of seats to students logged in then posted a message that all seats were in use. That was 30 years ago. Now the studios don't want to go even that far.
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Anonymous Coward, 18 Mar 2011 @ 10:21am

Re: Re: Re: Re: Re: Re:
It used to be years, then a year then 9 months, then 6 months, now 3 months, in some cases it's 2 months. Just give it time and soon they'll be living in the present with the rest of us.
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charliebrown (profile), 18 Mar 2011 @ 10:42am

Re: Re: And this is why...
Heck, I'd pay triple that price to access content like that! Assuming it includes TV as well as movies, that is....
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charliebrown (profile), 18 Mar 2011 @ 10:46am

Video On Demand (again)
Look, seriously, everything is in place except the green light. The infrastructure exists to have all TV and movies and musical content online (you could say it already exists online but I digress), the market is there, the market is willing to pay a reasonable price, the profits are there to be made between subscription fees and advertising, so what's stopping it?

Seriously, what is stopping it from happening?
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Mike Masnick (profile), 18 Mar 2011 @ 10:53am

Re:
I don't know why you always leave off the part of the Second Circuit's opinion where they said that remote DVRs opened Cablevision up to secondary infringement liability.

You're right. To be honest, I forgot that point of the ruling, because it was done as an aside, and not as central to the ruling. I will clarify.

They still went out of their way to point out how they would have ruled if the case had been pleaded differently.

Now that's where I disagree. They say that it would open up Cablevision to that charge, but they do not make an actual ruling on it (nor did Cablevision have a chance to present a defense).

THAT'S why the remote DVR thing never took off. Anyone thinking of getting into to the game only had to read the Second Circuit's opinion to understand what kind of liability they'd be opening themselves up to.

http://www.fierceiptv.com/story/cablevision-preps-rs-dvr-pc-tv-offerings/2010-03-01

I can't help but think you are intentionally misrepresenting that case

Because you love to jump to conclusions. It was an honest oversight, on what I still believe to be a sidenote on the case.
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Christopher (profile), 18 Mar 2011 @ 10:54am

Re: Re:
Coward, you are being stupid here. Usually what Mike imagines DOES turn out to be true sooner or later.
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Christopher (profile), 18 Mar 2011 @ 10:57am

Re: Re: Re: Re: Re: Re: Re:
We are goddamned tired of 'giving it time'. These idiots are going to have to realize that they are being left behind by technology and either:

1. Stop fight it.
2. GO OUT OF BUSINESS!

Those are the only two choices here for them.
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Mike Masnick (profile), 18 Mar 2011 @ 10:58am

Re:
and this, mike, is the premise of your entire article. you imagine they will go ballistic, but so far, no one has. i'm generally on board with you, but today, i think, you're just spreading the fud

Yes, it's an opinion. I always state my opinion on the site. That's not FUD. Some of the reports on this service have already quoted the MPAA as not believing this is legal. When have you ever seen the MPAA not follow through on a lawsuit?

The *only* way I could see them bailing out, is if the lawyers convince them that the potential of losing this case would set a precedent they don't want. But they're not really known for thinking those things through.

We'll see. It's entirely possible they won't go legal, but I don't think anything in my statement was "FUD" given how they've reacted in the past.
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Christopher (profile), 18 Mar 2011 @ 11:00am

Re: Video On Demand (again)
Bastards in the music, movie and game industry who don't want to get with the times and realize that the time is coming to an end where you can repeatedly charge people for the same thing OVER AND OVER AND OVER AND OVER (ad. infinitum).
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Anonymous Coward, 18 Mar 2011 @ 11:02am

Re: Re:
You're right. To be honest, I forgot that point of the ruling, because it was done as an aside, and not as central to the ruling. I will clarify.

The ruling was that it's not direct infringement. The dicta is that it's likely to be contributory infringement.

Now that's where I disagree. They say that it would open up Cablevision to that charge, but they do not make an actual ruling on it (nor did Cablevision have a chance to present a defense).

Nor could they make an actual ruling on the issue because the issue was not before the court. Still, the dicta makes it clear what the court thinks of it.

http://www.fierceiptv.com/story/cablevision-preps-rs-dvr-pc-tv-offerings/2010-03-01

Right, I noted this as well. What's unclear is whether they are just doing it in spite of the Second Circuit's dicta, or have they gotten the permissions in place at this point. Do you know either way?

Because you love to jump to conclusions. It was an honest oversight, on what I still believe to be a sidenote on the case.

I think it was either willful ignorance or just plain ignorance on your part. Either way, I'm giving you a pass on thinking it to be deliberately evil. :)
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Josh in CharlotteNC (profile), 18 Mar 2011 @ 12:26pm

Re: Re: Re:
What I am saying is that it is a couple of very short hops from "here" to "there".

So we're in agreement that they're doing something completely different than what the law says is illegal. You're not exactly building your case up, AJ.

What would happen if it turned out that the DVD players were just a front, and that the vast majority of users were being served from pre-digitized movies?

Again, I'll ask. Are you now accusing Zediva of doing that? All you seem to be able to do is make up wild hypothetical situations where things this company is NOT doing might be illegal (and I'd argue against "pre-digitizing a movie is illegal").

Does the format they use for the digitization allow the movies to be captured and recorded locally, and in turn used as the basis for torrent files?

By that logic the MPAA's solution they presented to the Library of Congress on how to camcord a TV screen so that films could be used in educational settings is also illegal.

Are they just making it more easy for people to obtain digital copies to spread?

That's a resounding "No." Capturing the stream, although not particularly difficult, is harder than searching Google for a torrent and then downloading it and sharing it. So under any definition, they are not making it easier to torrent the movie.

Does the service buy a physical DVD player for each user, put their name on it, and allow only them to use it? Or it is a shared device?

I'll use your favorite word from a couple days ago: Irrelevant. I imagine they'd have enough players to reasonably handle their peak load, while also minimizing needing someone to run around and swap discs constantly. So long as they're not copying the DVDs, what does it matter how many DVD players they have? They're renting out their legally purchased DVDs and legally purchased DVD players. What does it matter how many they have if they are all legal?
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Anonymous Coward, 18 Mar 2011 @ 12:40pm

Re: Re: Re: Re: Re: Re:
There is a point where the impending actual release (when it goes commercial on DVD) coudl get too close and actually harm the theater attendance. The time delay between A and B is in part what creates the scarcity (similar to the Techdirt Crystal Ball thing). Everyone knows the movie will be released on DVD, the question is if they are willing to wait in order to save money.

A couple of weeks is likely too short. The current shortest is about 2 months, and that is for movies that bomb out at the box office. Usually, you are looking at 3-4 months after the movie leaves the theater. It's not really a long time.
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Anonymous Coward, 18 Mar 2011 @ 12:48pm

Re: Re: Re: Re:
RD, it is always so amusing to try to explain things to you. I feel I should use short words and simple sentences.

A movie is made. It is copyright. The copyright holder grants a company in the US the rights to retail it in the US to US customers. They choose to sell it to a customer in the UK, they have violated their contract, and by doing so, have also violated copyright (because they distributed a copy in a manner they were not licensed to do).

It is the same at the other end. The buyer in the UK now has in their possession an unlicensed DVD. In purely technical terms, they have violated copyright as well, as they copy in their hands is not legal.

See, except for DVD and UK, you don't need capitals to make your point.
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Chosen Reject (profile), 18 Mar 2011 @ 1:02pm

Re:
They said remote DVRs didn't make Cablevision direct infringers.

This is true.

But then they said that it did make them secondary infringers.

Absolutely false. They did not say it made them secondary infringers. They were emphasizing that their ruling is only that Cablevision is not guilty of direct infringement and that they may be open to other charges. They absolutely do NOT state that Cablevision is guilty of secondary or contributory infringement.

They still went out of their way to point out how they would have ruled if the case had been pleaded differently.

Also not true. They went out of their way to offer some things they would look at if they were considering secondary liability. They did not say which way they would rule. It's impossible for them to do so as there wasn't a trial for those charges, and thus no defense.

And as a side note, the court mentions that "...Cablevision would then face, at most, secondary liability, a theory of liability expressly disavowed by plaintiffs." So not only does the court only say that Cablevision could face a charge (not that they are guilty of that charge) of secondary liability, it also states that the plaintiffs don't even support such a charge.

As for the lack of remote DVR services, it's not surprising people are hesitant to go into such a business venture with the entertainment industry always looking to sue any new entrant.

I'll leave you with this
I can't help but think you are intentionally misrepresenting that case--as you do most things--to make it sound like it stands for something it does not. This sort of thing does not help your credibility.
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Anonymous Coward, 18 Mar 2011 @ 1:17pm

Re: Re:
I did speak too broadly at first, and my subsequent posts fix this error. Nevertheless, a proper reading of the case should leave the reader with plenty of doubt as to the legality of remote DVRs. To say that the court declared them "legal" is to ignore that the court's clear dicta to the contrary.
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Chosen Reject (profile), 18 Mar 2011 @ 1:35pm

Re: Re: Re:
I read most of it, starting with page 20. It left me with a clear indication that the court was deciding solely on direct infringement and that they wouldn't get into the secondary liability issue except to say that the court will not rule on that issue as it is far more nuanced and would need another whole trial to decide.
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Anonymous Coward, 18 Mar 2011 @ 1:47pm

How is this not a public performance? Is this really distinguishable from Columbia v. Redd Horne?
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Josh in CharlotteNC (profile), 18 Mar 2011 @ 7:47pm

Re: Re: Re: Re: Re:
They choose to sell it to a customer in the UK, they have violated their contract

Who is "they"?

Walmart buys a DVD from the studio. I buy the DVD from Walmart. I go to the UK and sell the DVD to someone. I have broken no laws or contracts (assuming I have paid import/VAT/other taxes).

I have not signed any contract saying I would only sell my legally purchased DVD in the US, therefore I cannot violate any contract.

If I'm renting the DVD, it is no different.

But of course you knew that and were being deliberately misleading by implying otherwise.
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monkyyy, 18 Mar 2011 @ 8:14pm

Re: Re: Re: Netflix and others should be able to stream movies
"Now, I wonder if you played the entire movie into an extremely long buffer and kept the buffer for playback..."

every day it gets more and more clear that the lawmakers dont know tech, w/ the amount of grey area out of abusive laws
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shmengie (profile), 19 Mar 2011 @ 9:01am

Re: Re:
i know, and i agree that if the lawyers get involved, it will surprise no one. and their track record has certainly led us to believe that that will be the case.

it's more the tone of the article that prompted my reply: it comes across as having been written after the mpaa had already filed a suit. you seem to be lambasting already, for something they haven't done. YET.

perhaps a cautionary tone for now; followed by a well-deserved bashing after the fact.
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Anonymous Coward, 19 Mar 2011 @ 6:39pm

Doesn't Japan have more important things to worry about than remote DVRs?
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Anonymous Coward, 19 Mar 2011 @ 8:37pm

Re: Re: Re: Re: Re: Re:
Josh, no, private resales are not an issue. The question would be Wal-Mart US selling direct to UK customers (outside of their contracted zone).

Also, the consumer buying the video in the UK might by in a bit of a pickle, depending on how they use it. The rights granted would be in a weird sort of legal limbo, because while they were originally written to match US law, you have now sold it in the UK. There is potential that there is no actual license for them to purchase, making their owning it a bit of a no-no.
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Dan, 20 Mar 2011 @ 9:39am

DVR
This sort of setup actually existed back in the 30's and 40's for jukeboxes. In many towns, there was a central dj and there were speakers in different restaurants. A person at a restaurant would order up a particular song and the dj from the central location would play the record across the wire to that restaurant. Kind of like a human jukebox. They owned the records and infrastructure and rented out the song. I believe wurlitzer and rockola had them.
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Dan, 20 Mar 2011 @ 9:43am

Re:
This was done in the 30's and 40's with records. A restaurant could subscribe to a service where patrons could order up a song from a DJ at a central location and that person would play that record over the wire (usually an extra phone connection) to the speakers at that restaurant. Either wurlitzer or rockola did it. You would have to look up the history of jukeboxes.
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Anonymous Coward, 21 Mar 2011 @ 4:37pm

Re: Brilliant
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Joe Romine, 11 May 2011 @ 10:14am

Two Months Later For Zediva
Its been almost two months since the Gainesville Sunran the NY Times story on Zediva.com. After reading the original article on March 17th I assumed, as most readers did, that out of the box Zediva's days were numbered. Legally and technical Zediva looked to be sunk. Lawyers claimed that Zediva was in violation of the rules and regulations set forth by the Motion Picture Association of America (MPAA) and Internet latency plus the lack of DVD availability was killing its customer base.

Unfortunately things haven't changed for the better in the last two months. This weeks headlined out of India read "Hollywood sues Indian American for selling films online" and customers are lighting up facebook like it's a pinball machine. "All the people waiting for your Zediva, don't be too bothered. I got to register couple of weeks ago, and I'm disappointed with the way this is working. Nothing is ever available when you want it. Kind of like going to the old video store."

Personally I want Zediva to successfully challenge and change the MPAA rules on streaming movies. Eventually all content will be on the Internet. Why fight it? Lawyers are more expensive than Software Engineers and getting to the marketplace early is the key. Isn't that right Borders?

Joe Romine
Difficulty9.com
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