Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
from the the-insanity-of-copyright dept
A few months ago we wrote about the new online movie rental site, Zediva, noting how it demonstrated some of the ridiculous nature of copyright. That's because Zediva worked by setting up a single DVD player with the DVD of the movie the user wanted to rent being put into that player, and then streamed from that player. In other words, their argument (based on the Cablevision ruling), was that as long as they were doing the same basic thing that a customer was doing in their homes, but with the physical device in a central location, it should be legal. To put it more simply, the fundamental question is whether or not the length of the cable matters in determining whether something is infringing or not. If the cable is just a few feet from your DVD player to your TV, that's legal. But if the cable is much longer, as the DVD player lives in a data center, would it suddenly no longer be legal? The Cablevision ruling said no.However, the MPAA quickly sued and a judge wasted little time in agreeing to issue an injunction shutting down Zediva as infringing.
The whole setup of Zediva should show you how silly modern copyright law is. It's technically relatively easy to distribute movies online, but Zediva had to set up this convoluted and ridiculous process of reserving DVD players and DVDs for each customer in a (so far, failed) attempt to stay within the law. But the end result goes even further in showing how ridiculous copyright law is. Basically, the judge admits that the length of the wire defines copyright. That's insane when you think about it. If the wire between my DVD player and my TV is 10 feet... legal. If it's miles... infringement. How can people respect a law that leads to such results?
The judge's reasoning strikes me as equally twisted. For example, it claims that Zediva violates the "public performance" right under copyright law. Not surprisingly, the judge relies on the (similarly terribly decided) On Command Video Corp. v. Columbia Pictures, which ruled that a hotel similarly showing movies in rooms from a central system was "transmitting" the works, thus making them a public performance. But this has a little itty bitty problem: the "transmission" is over a wire, and under that definition, you're also transmitting if you play a DVD player in your own home. It's the same physical thing other than the length of the wire.
Now how the hell is viewing a DVD in the privacy of your own home a "public performance?" Again, the court's reasoning is twisted. You'll love this:
Customers watching one of Plaintiffs’ Copyrighted Works on their computer through Zediva’s system are not necessarily watching it in a “public place,” but those customers are nonetheless members of “the public.” .... The non-public nature of the place of the performance has no bearing on whether or not those who enjoy the performance constitute “the public” under the transmit clause.Yes, you read that right. Again, how can you take copyright law seriously when it's interpreted that way? Under that definition, pretty much anything is a public performance.
The court also brushes off the Cablevision decision in a footnote, claiming that that case was different because each person viewed a single digital copy, whereas in this case... since it's a DVD, it's now being transmitted to the public. I honestly read this section four times, and I have no idea how that distinction matters. At all. Even they seem to quote the Cablevision case, saying that they don't understand why there's a difference here, but there is.
Under the facts of that case, the Second Circuit found that the transmissions were not “to the public” because “each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber.” Id. at 138. (“Given that each RS-DVR transmission is made to a given subscriber using a copy made by that subscriber, we conclude that such a transmission is not ‘to the public.’”). In this case, unlike Cablevision, Defendants’ customers do not produce their own unique copy of Plaintiffs’ Copyrighted Works. Instead, like On Command and Red Horne, the same DVD is used over and over again to transmit performances of Plaintiffs’ Copyrighted Works. As the Second Circuit held in Cablevision, while “neither the Red Horne court nor Prof. Nimmer explicitly explains why the use of a distinct copy affects the transmit clause inquiry,” its “independent analysis confirms the soundness of their intuition: the use of a unique copy may limit the potential audience of a transmission and is therefore relevant to whether that transmission is made ‘to the public.’”But it seems to me that this pushes the weight in favor of Zediva, since it's only using a "single copy" as well -- a single copy of the DVD. That would suggest an even stronger argument that the transmission is not to the public -- only one subscriber can view each copy at one time at their single location. How can you twist that into claiming it's a "public performance"?
Honestly, the real issue here is the very nature of copyright law itself, which is patched up with duct tape each time some new technology hits the market. The internet has merged together a variety of these technologies into one, so different parts of the law are clashing, and out of it we're getting ridiculous decisions like this, which only serve to show how broken copyright law is. When the real result of a lawsuit depends entirely on the length of a cable, the law is fundamentally broken.
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Filed Under: copyright, movies, public performance
Companies: mpaa, zediva
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The further you stretch, the more you leave yourself open.
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> of the scope of the law but make it clear
> what their intentions were.
You keep saying stuff like this, which indicates that you seem to have this odd idea that if someone follows the law they can still be found to have broken it based on a finding of 'bad intentions'.
Let's make this clear so that even you can understand it:
If someone follows the law, their intentions ARE IRRELEVANT.
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It's not "trying to stay in the law", it's sitting right on the border of being illegal and hoping like hell that you don't get caught. They failed, thanks for playing.
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You're a tool, have a nice day.
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The wild west days of you people renting out copyrighted works without the copyright holder's permission are coming to and end. Enjoy it while you can because the law's coming for you.
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Umm, the copyright industry has already claimed that infringement funds people who strap bombs to themselves.
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The internet is not an actual, physical space. It's all west. Some parts are wild, some parts ain't, and that's the way it will always be.
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...
Oh wait. You're serious.
I'll laugh harder. HAHAHA!
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FTFY
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Next non-licensed Bandito to target: libraries
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Doesn't matter. If their actions aren't *actually* illegal, then what they're thinking is irrelevant.
> to try to live inside the loopholes
> and dead spots created over the years
> by court cases and judgements
That's a matter for Congress to address. If their actions abide by the law as written, then there's no violation.
> It's not "trying to stay in the law", it's
> sitting right on the border of being illegal
It doesn't matter how close they get to the border. If they're still on the legal side of it, then what they're doing is legal. That's why they call it a border. It separates what's legal from what's not. There's nothing on the legal side that's illegal *by definition*.
> and hoping like hell that you don't get caught.
Get caught doing what? Legal stuff? How does that work?
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Have the U.S. courts entirely forgotten that grants of monopoly are to be narrowly construed?
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Maybe it's ICE's definition of "border" ("This line right here, give or take 200 miles.") that's confusing the AC there.
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If the judge after the case comes to a conclusion finds based on precedents, and balance of probabilities that Yes it is infringing it still wont be illegal since illegal means criminal. It might at the most be an unlawful act but thats it. If the judge finds that no it hasn't infringed, then the respondent can then ask for costs and maybe damages for original cease order (though this is VERY rare)
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I'm sure you're very proud of your rhetorical skills, but ultimately your statement is full of emotion and empty of meaning. Zediva's intention was to continue to operate without breaking the law. If that means relying on "loopholes and dead spots", then that is what they must do to run their business legally. Whether or not they were behaving ethically is quite a different matter, but I dare you to point out how what they were doing is in any way unethical.
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Suddenly I feel the urge to buy a 4000 mile cable, connect to my dvd on the west coast of the US and watch a rented DVD at a TV on my apartment in the east coast playing from the west coast DVD. Me alone. But according to this judge I'm playing it to Barcelona fans all around the world. Along with all Chinese. And maybe the rest of the world.
My grandma can see there's no difference in watching the DVD at your player or at an internet connection that acts as the cable between the player and your tv... And she's almost 90.
You are a brainless troll sonny, you need serious brain transplant before you start posting anything useful here.
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Not any more, it seems.
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No, you seem to be confused. The hook-up is only available to the person renting it. It's not like once someone, somewhere has paid for it that it then becomes "available to any member of the public". At least not by Zediva. If the person renting it then further makes it available to the public, then that's a separate issue and something the renter may be liable for. Or at least that's the way it used to be.
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Plainly their intention WAS to follow the law. If not they wouldn't have gone to all that trouble.
What they didn't want to follow is your idea of what you would like the law to be.
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And thus Tax agents and civil litigators were born....
Welcome to the real world.. Everyone stretches the civil (and criminal) laws as much as they can, its human nature, but does NOT mean it is wrong or unethical or even illegal/unlawful.
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So now the police will give you a ticket for doing 29 in a 30mph zone - because clearly you intended to break the limit and you made your intentions clear by going so close to the limit.
That is your argument - do you now realise how stupid it is?
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Typical freetard. Face it, if you were _caught_ doing 29 in a 30, then you were probably drifting over 30 every now and then and deserve a ticket.
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Dammit, arrest everyone who owns (or has ever owned) a car for 'probably' having the potential for breaking the law.
OR
Yes they probably have drifted over 30, in a 50 limit area for instance?
Does this AC REALLY think that coming close to breaking the law is the same as actually breaking the law?
If you're in a shop, you select some items, you stand in line at the register while the person in front gets served, are you breaking the law because you could probably (but don't) walk out of the door without paying?
What if you walk into a bank, I mean, potentially everyone that goes in there could attempt a robbery, best that we arrest all of those too. In fact, lets arrest everyone for potentially being able to break every law, that makes perfect sense...
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If we are going to start passing judgment on entities based solely on their intentions, I vote that the MPAA and the RIAA should step up to be judged first, k?
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Re: The further they go to try to skirt the law....
The further you stretch, the more you leave yourself open."
What? The twisted their business model to fit INSIDE of the law not skirt it. Are you being sarcastic?
Their business model was simple. If you want to watch a movie, you rent one or their DVD players and you rent a DVD. They put the DVD in the DVD player for you and hit play. You then watch the rented DVD on your screen. What law were they trying to skirt?
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Really??
This makes me want to go out and buy a giant industrial spool of cable to put between my DVD player and TV just out of spite for the ignorance on display that is supposed to be the justice system in this country.
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The simple answer is they don't. And history has shown time and time again that people don't just ignore a bad/unfair part of a law when they deem it so, they ignore the law altogether or become so paralyzed by it that they fail to risk any trespass upon it.
So now we're coming to the point where people are either not producing content out of fear of litigation or suit, or they are completely ignoring copyright altogether - even the good parts of it.
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yeah the holes
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It's why the IP industry as it stands is being very reactive, and scared out of its wits. Instead of being proactive and working with the shift.
You can only fine so many people, shut down so many sites, and make so many laws until apathy and actual civil disobedience make it an exercise in futility.
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I don't think they're scared at all. They're predators and they're dancing with glee over all the new prey they're finding.
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Are *all* DVD rentals now illegal public performances?
This ruling seems to be the kind where the judge does whatever it takes to create a ruling that agrees with the interests of large media holders...
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Re: Are *all* DVD rentals now illegal public performances?
Like other copyright industry loving judges, this one seems to have started with the conclusion he wanted and worked backwards from there.
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Re: Re: Are *all* DVD rentals now illegal public performances?
I don't necessarily believe the judge made the right decision, but courts have an interest in making laws easily definable and applicable. Sometimes a precedent is made simply to be struck down in a different way later. Keep in mind this is an appellate court, which implies that someone had an issue with the court proceedings in the original lawsuit. Rarely are appellate court decisions handed out based on "I didn't like the outcome".
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Respect
Answer is: they don't. No one respects copyright law. they either use it and twist it into a vague characature of itself to protect their rents, or like the pirates, ignore it completely because it doesn't make any damn sense.
Not even judges respect the law. Here we have a judge that doesn't like how creatively Zediva set up their model to be in compliance, so he twisted it back around and made stuff up. He doesn't like this loophole, so he rewrites copyright law to close it.
how can you take copyright law seriously when it's interpreted that way?
You can't. And no one does. Copyright is either something to ignore, or it's your hammer and the world is a nail.
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In this case they used the wire to broadcast unlicensed content to paying customers.
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No, that's a lie. They weren't broadcasting. They were directly streaming to individual customers.
Yes, copyright encourages creation. The creation of greedy liars. Abolish copyright.
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if i buy a dvd or blu ray, i can loan it to whomever i wish. i dont need your permission. and if i want to, i will take money from them for the favour.
good luck to you if you think otherwise.
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Boiled down: a "public performance" is any on a PUBLIC DVD player.
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Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.
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Similarly, how about watching a DVD while in a hotel room? That's a public DVD player (restricted to paying guests, in the same way that Zediva was restricted to paying subscribers).
The decision is sheer lunacy.
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Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.
So then would a DVD rental business be illegal?
I seem to remember that video rental stores used to rent DVD players and VHS players. Does that constitute a public performance?
It seems to me that it is only a public performance if a SINGLE player can be viewed by the entire public rather than a single household.
The DVD is licensed for household viewing and that is the kind of viewing that is happening from a single disk.
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FREE SEX FOR EVERYONE! Only, if it's in your bedroom, it's public and you'll be arrested for obscenity violations.
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Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.
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So you can't legally rent a DVD player? The frak?
This is yet another case of a judge deciding what the outcome should be and figuring out some convoluted reason to make it so.
The court should be required to declare how long the cable can be, exactly.
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Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.
You can rent a player, you just can't play a DVD in it (without a public performance license). How hard is that to understand?
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Apparently as hard as to understand how this could ever qualify as a "Public" perfomance.
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Businesses showing movies
That has been the case for a long time. Those are all genuine examples of a public performance, where showing a movie may require royalty payments to the copyright holder. Such showings in businesses are not included in your rights as a purchaser of a DVD. That is a separate issue from the Zediva case.
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You call bull shit, I call the law. Guess which one wins.
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Game, set, match! Back under the bridge until sundown troll!
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The people who ignore copyright law?
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If I use my DVD player to play someone else's movies, is my DVD player suddenly a "public DVD player"?
Likewise here, if they use their private DVD players to play movies that they are renting to other people, does that make it public? Does that mean anyone can just walk into their datacenter and use their players? It seems to me that the players are private, and they're just granting permission for some people to use them.
According to this ruling, no player that anyone owns is a 'private player'. They're all public players that are subject to infringement. Including players that aren't exclusively players.
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Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.
I used to rent VCRs along with VHS tapes in the 1980s before the players were affordable. This is exactly the same.
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You have exclusive possesion of both the DVD player and DVD Movie at the time of rental therefore creating a contract of property meaning it is YOUR property at that time meaning it is not, and can never be, public unless the leesee makes it public. Even if the leesee makes it a public performance it is not vicariously the responsibility of the leesor as long as they take reasonable steps to make it plain that public performances by the leesee are not allowed.
Once the leesee watches, or stops the lease/rental then vacant possesion of the property occurs and then it goes back to being a public DVD player. Actually even then it doesn't since it is not used unless under a rental contract.
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What is the answer to this broken copyright stuff? Is there any way it's going to get reformed and improved?
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Historically, when Monopoly abuses have gotten out of hand, the courts and legislators have eventually been moved to act for the publicke weale.
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That's a fair query, to which I have no good answer. Here are some early beginnings of some notes:
The abuses in the reign of Elizabeth I, were not set immediately aright in the Case of Monopolies (ca. 1600). It required the Statute of Monopolies (1624) in the reign of James I.
One point to remember is that in the 1600s, the press was still under strict state control by Star Chamber.
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Abolish copyright. It's the only way.
Is there any way it's going to get reformed and improved?
That's kind of like asking if there's any way to reform and improve slavery. The only real solution is abolition.
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Does this also mean that if I were to stream legally obtained movies through a connection I own from a computer that I own, that I'm also infringing?
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The madness never ends when corporate America is running the country.
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Exactly how many public performance licenses have you obtained?
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The Queen?
- prisoners? (but I think the copyright notice excludes showing in prisons and oil rigs)
- the Queen in the UK? (there are some special rules as to what she can/can't do)
Seems a bit odd for Hollywood to be churning out all those DVDs when the only person allowed to watch them is the Queen.
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We don't need to actually show that you do, we can just assume that you make these public performances. It is up to you to provide evidence (ie proper recordings of every time you have showered) in order to avoid these fees.
-- ASCAP
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I refuse to pay for oral performances!
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I would be they would find a reason for the answer to be no. What if I bought the movie, they made the digital copy for me, so i can stream it, and then mailed me the disc?
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Like Netfiix. If Netflix used a separate DVD for each customer, it would be in the clear. But it doesn't. It reuses the same DVD over and over, denying the copyright holder additional income, and that's what makes it's rental business an illegal public performance. It's only a matter of time before the law catches up to them.
/s
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That is kind of dumb. No rental business purchases a new item every time someone rents it.
Could you imagine Avis having to purchase a new vehicle for every customer?
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I imagine that might make some car dealers quite happy. Maybe they'll take a cue from the movie industry and start pushing for that.
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But couldn't you make the argument that distribution of a DVD to another party constitutes a public performance? Is a physical medium all that is required to constitute the difference between renting and a public performance?
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Copyright law is set up to distinguish between the physical distribution of a copy of an audiovisual work and the actual conversion of that work into a perceptible form. Under the law, a copyright owner generally has the exclusive right to exercise any of the five general rights of copyright [reproduction, adaptation, distribution, public performance, and public display]. Distribution involves disseminating copies of the work to the public without actually playing them. Generally, only a copyright owner would be allowed to do this, but under a particular exception [the first sale doctrine], distribution is allowed by people other than the copyright owners so long as they've legally purchased each copy of the work they're disseminating [like Netflix with its rental by mail]. Assisting the perceptible rendering of those copies to the customers beyond furnishing the physical copy of the work, however, crosses over from mere distribution to performance, and the first sale doctrine that allowed for the distribution does not also cover the performance. Therefore, the copyright owners are back in control and must authorize the performances. They've done so with Netflix through a licensing deal. Zediva had no such deal, and so their performances were infringing.
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Would the following be crossing the line:
- lending 3d glasses along with a the DVD?
- going home with a handicapped customer and pressing play on their DVD player for them?
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I've never heard this before: that the mere act of transcoding violates the "public performance" right. If anything, it might violate the "derivative works" right, but that's kind of a stretch.
Also, they were not doing the same as Netflix' streaming service. The only transcoding that took place was between Zendiva's DVD player and the user, and that was just to compress the signal enough to transmit it over the wire. It was still one user = one copy.
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"You say yourself that they transmitted the signal to the end user."
So does my Xbox, PS3, Wii, laptop DVD drive, my DVR... the only difference is that those items happen to be in the same room as the TV (most of the time).
In fact, I'm quite capable of streaming my own DVD from my living room media centre to my laptop upstairs if I wish to watch a movie in bed. I can do this remotely if I'm at work and want to watch a file on my home PC. Strange how this setup suddenly becomes illegal if I don't happen to own both pieces of equipment.
"Additionally, the transmissions are merely secondary to the use of the source DVDs, which are not confined to a single viewer's use. "
DVDs are never confined to a single user's use (e.g. lending to friends, flatmates watching your copy, etc.)
"Each DVD is used multiple times to create those streamable versions and sent to multiple sequential users."
...but only one user can access it at any one time. So, it's a one-to-one broadcast, not a one-to-many.
There's probably quite easy legal explanations for all of these points. But, this is really the sticking point - where the law has to examine minutiae to determine whether something is infringing, even though similar setups are legal, there's something rather wrong IMHO.
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All those things that you own [DVR, XBox, etc.] are streaming to you and you alone; the performances they render are not open to the public, so there's no infringement there [since the copyright owners only control public performances, not private ones]. Problems arise when works are offered to other members of the public for streaming, "whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." By offering the streams of the DVD to the public as they do, Zediva implicates the public performance right, regardless of the fact that only one user can receive it at a time. In fact, the copyright statutes explicitly render that a moot distinction ("same time or different times").
The way you explain a DVD's non-confinement to a single user implicates its physical hand-off from person to person -- otherwise known as distribution, which is allowed under the first sale doctrine [reselling, leasing, loaning, etc.]. The public performance right (implicated in the streaming), however, has no such blanket exception. In light of that fact, Zediva was aiming for the case law exception enunciated in Cablevision, but couldn't fit the necessary fact pattern [which requires unique recordings streamed to each member of the public, ones created through fair use]. Here, the reproductions of the works aren't fair use under the Betamax case because they weren't TV broadcasts, and the copies aren't unique because each DVD is used multiple times [again, the fact that only one person uses it at a time is irrelevant given the language of the statute]. Thus, in the eyes of the court, they do not fit Cablevision, do not benefit from its exemption, and thus continue to infringe the public performance right absent licenses from the copyright holders on the DVDs.
All of this insanity stems from the fact that copyright is focused on five rights of owners' that have increasingly bled together in the digital age, and courts must carve increasingly nuanced lines out in order to maintain the viability of those rights. And as outfits like Zediva seek to strain those boundaries further, the courts will be hard-pressed to keep copyright from unraveling even further.
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I would still say that this is the sticking point that confuses about this issue:
"All those things that you own [DVR, XBox, etc.] are streaming to you and you alone"
That's the thing, they don't. I can stream to multiple people in the same house, or even neighbours. I can stream to work, and thus to all my colleagues if I wished. The only real differences between this and what Zediva was doing is my personal relationship to those people, and the fact that I didn't charge for the rental.
Maybe it's that commercial vs. non-commercial thing that's the real problem, but then you're really just paying someone to do something for you that you could do yourself legally? Maybe my actions are infringing but not worth going after to begin with - in which case those rules are pointless.
"The way you explain a DVD's non-confinement to a single user implicates its physical hand-off from person to person"
...but if Zediva only allows one access at a time to the DVD and its player, it's also doing a physical hand-off. Just not in the same location as the person it's handing off to. It's only the matter of physical location that makes this any different to, say, Netflix's physical distribution.
"And as outfits like Zediva seek to strain those boundaries further, the courts will be hard-pressed to keep copyright from unraveling even further."
Hopefully you're correct. The law as it stands is a mess, and doesn't take into account the realities of what's really happening. We need change, and soon. I fear there will be a lot more blood shed in the battle for the law to join the reality of the 21st century, and that's a shame.
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While you can stream to others in your house, work, neighbors, etc., it takes more than to make those transmissions "public performances." You need to transmit to public places or to members of the public [including any substantial gathering of people outside one's normal circle of friends and family], which Zediva did in its commercial offering that accepts any paying customer [i.e. member of the public.] So yeah, the relationships actually do matter [as well as the locations].
Don't confuse limited access to the work with a hand-off; "distributions" and "public performances" under copyright law have specific meanings and requirements. A distribution is conveying an actual copy of the work to someone [whether physically or electronically] so that they possess the copy. A performance allows someone to experience the work without actually possessing the copy. If Zediva allows the person to download the work, it would be a distribution. A stream, however, is a performance, because no fixed copy of the work ends up in the viewer's possession. When the performance ends, the work is gone [unless the viewer has recorded it, but that's on him, not the performance provider]. The location distinction is arguably incidental.
I'm not denying that, in practice, Zediva's offering is equivalent to renting you a DVD and skipping the hassle of shipment. Unfortunately, working around that hassle changes their offering from a distribution [which doesn't require a license if Zediva legally purchased each DVD it sends out] to a public performance [which requires a license]. That's just how the law is set up. It's arguably a stupid outcome from a technical perspective, but as long as statutory law dictates it [which it does, since the specific rights of copyright and the limitations of the first sale doctrine are enumerated in the United States Code], the courts are not in a great position to do much about it. They're bound by Congress.
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I for one appreciate you explaining the law and case precedents in a clear way. Especially not having too much knowledge of American law, being from the UK.
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The Cablevision ruling goes into great detail about what constitutes the "public:"
In Cablevision, there was no public performance because each source file was unique and its creation covered by fair use [ala the Betamax case].
Whether such copies were "fair use" was not a consideration as to the "public performance" aspect (discussed in Part III of the ruling). That was used solely in determining whether Cablevision would be directly liable for infringement (discussed in Part II).
However, the fact that each file was a distinct copy probably did push the determination in favor of non-infringement. The Cablevision case discusses Columbia v. Redd Horne:
However, let's look at the Redd Horne case in more detail:
By those criteria, the Redd Horne case would not apply in this case. Unlike Maxwell's, Zediva is nothing like "a conventional movie theater." Zediva does not have a "store," or any location, where it "showcases" movies. So, within the meaning of section 101, the relevant "place" should be private in-home use, which is not considered public.
Combine the inapplicability of Redd Horne, with Cablevision's "only one subscriber is capable of receiving" clause, and it should have been decided in Zediva's favor.
Perhaps it will be when the case is actually decided. Who can tell?
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Without commenting on the merits of your argument, I will note that you are only considering one of the two definitions of "publicly" under 17 USC 101. The definition is divided into two clauses: a public place clause and a transmit clause. The clause is disjunctive, meaning that either clause can constitute a "public" performance. Your argument goes only to the first clause, not the second (the court in Redd Horne found it unnecessary to consider the second clause after finding the defendants liable under the first). The "public" analysis for each is different.
The court explains the distinction well in On Command Video and even cites Redd Horne:
This is nearly identical to what the judge wrote in the Zediva case:
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That's exactly what they were doing: leasing the copy. While one DVD was playing for one customer, it could not be playing for another customer.
Essentially, they are no different than Blockbuster, except without the shipping charges.
That this would be considered a "public performance" is a really terrible ruling. Of course, this is a preliminary injunction, not a final ruling, so Zediva might yet prevail.
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Netflix:
Has physical DVD, shipped via mail, put into users DVD player, streamed via cable to users TV.
Zediva:
Has physical DVD, shipped locally via loader, put into Zediva owned player, streamed via longer cable to users TV.
Where in there is the part that makes it illegal? the word longer? apparently so. :(
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If so, how is Netflix considered legal, but this is not?
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When you say "limiting the Cablevision decision to its facts". For a short time, it could have been interpreted the same way Zediva interpreted it, the only thing that changed from then and now is how this particular court interpreted it.
Would Zediva be able to challenge this decision?
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IIRC, the Cablevision court intoned that its decision in the case already was a narrow one, a very factually-specific one. Basically, because each Cablevision customer was streaming a unique copy of whatever they asked the remote DVR to record, the works weren't being offered to the general public; only the specific customer who authorized the individual recording. This created the notion that streaming unique and dedicated copies of works to each customer didn't constitute a public performance, and it's why the cloud music services we see cropping up [like with Amazon and Google] require each customer to upload his music rather than let all customers stream from a central database of files. It's technologically inefficient and redundant, requiring excessive remote storage, but it keeps the services within the confines of what Cablevision seemed to allow. But with Zediva, a single batch of DVDs was offered to the general public to stream, and presumably each DVD is used multiple times for subsequent customers. That places it outside what Cablevision deemed not to be public performance. Zediva's challenge is to convince the court that Cablevision should be expanded based largely on what Mike has argued -- that the differences between the two services are purely a physical nuance, and that it's ridiculous for copyright law to make such a distinction. My guess is the courts will disagree, because they're not looking for things to make physical sense; they just want to preserve the market distinction between a distribution and a performance.
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I wouldn't call that an exception to copyright law, but a limitation, a boundary. Nitpicking maybe, but first sale isn't like fair use, where you're allowed to make an otherwise infringing copy for particular uses. When exercizing the right of first sale, you're not making any copies at all. It just states that the copyright holder doesn't have any say in how you dispose of the copy you already have.
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I see, so if you have sex in a rented hotel room, then you are having sex in a public place.
Abolish copyright.
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So are Netflix DVD's. No difference.
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I don't know why you think it didn't, but that happened in this case as well. Physical copies were distributed to the DVD players.
The streaming of the same programs, however, involves the public performance right, to which there is no first sale doctrine exemption.
Previously, a streaming public performance would have been thought by most to involve the streaming of a performance to the public. This judge has now ruled that private streaming to an individual is also a public performance.
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That's not the legal definition of a distribution under copyright.
Previously, a streaming public performance would have been thought by most to involve the streaming of a performance to the public. This judge has now ruled that private streaming to an individual is also a public performance.
If you read the prior jurisprudence on public performance [many of the cases are cited in this court's order], you'll see that private streaming can be a public performance if such a stream is generally offered to members of the public, whether they are viewing it at the same time or different times, and in the same place or different places. The Zediva court isn't making any large doctrinal shifts, merely adhering to how previous cases have construed public performances.
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You're wrong, distributing DVDs is distribution under copyright law. This is a well settled area of copyright law. Again, I don't know why you'd think otherwise.
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Well, it seems to be indicative of your understanding, or lack thereof, of copyright law.
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By "players" I meant those playing the DVDs, not the machines themselves. Are you saying that Zediva is not a member of the public?
Also, I'm not sure why you feel the need to personally attack my knowledge [or perceived lack thereof] when all I want is to have an interesting, constructive discussion on the issues.
I apologize if it seemed like an attack.
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Really? So, electronic distribution doesn't count? There sure are a lot of file sharers out there that are off the hook then.
If Zediva let you download a work to your hard drive [like a file-sharing program], it would be a distribution...
Okay, that contradicts what you said just before that. If you're going to keep contradicting yourself like that then you're going to loose all credibility.
Oh, and by the way, the streams *can* be captured to a "hard drive". (As if the type of storage device really makes a fundamental difference. What, are some storage device legal and others illegal? Where's that list?)
(followed by a performance when you played the file)
Ahh, so then the customers are guilty of public performance after all. I suppose the MPAA might be suing them next?
But because Zediva merely streams the movie in real time,
Oh, so now you're saying that it's the speed of the transfer that makes the difference. I don't recall the judge saying that, but maybe I missed it. I'm sure you wouldn't be making that up.
and does not replicate the file on your computer in any sufficiently fixed form (merely a partial buffer copy), it is a performance alone.
I don't think Zediva does *anything* on your computer, do they? That's up to the customer. And you seem to think there's more theoretical distinction to a buffer than there really is. I've got plenty of buffer on my computer to hold complete movies.
And no worries -- I'm no industry shill, merely a law student who has spent enough time reading about copyright law that I feel I can hopefully help shed some light on the courts' reasoning.
I didn't really think you were. The problem is that you're trying to make technical distinctions that strictly don't exist. You seem to have a lack of appreciation of what you don't know about the subject and are more than willing to begin making stuff up. And that's the problem. (I suggest you go spend a few years of *rigorous* study of information theory and engineering if you want to begin to really understand it.) A judge may rule that 1+1=3, and it may then be "legally" so, but that doesn't really make it so. The law does not define the truth. That's something that those in the legal profession sometimes lose sight of.
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[1] Never said electronic distribution doesn't count. When the file hits your hard drive and can be reproduced from it, it's considered fixed. [2] You fail to explain how I allegedly contradicted myself. [3] The fact that a stream can be captured doesn't change the fact that the action of streaming is a performance rather than a distribution. [4] As for the customers, I said performance; not public performance. You added the public part. It's a private performance if they play it for themselves, which is not infringing. [5] If you read the Cablevision decision, you will see the judge make the distinction that a buffer copy of a program in a device such as a DVR is fixed for an insufficient amount of time (about 1.8 seconds in that case, IIRC) to constitute a copy of the work as defined by copyright law. You're welcome to pretend there's no distinction between a buffer copy and an actual copy, but the courts have contradicted you.
Whatever you think you know about the "reality" of technology is irrelevant to these discussions about what the law actually says. You may have compelling policy reasons to disagree with the courts and legislature, and I may even sympathize with them, but none of that invalidates my factual summary and analysis as to what those courts and that legislature have dictated up until now. I never argued that these distinctions are "right" from either an ethical or technological perspective. Merely a legal one. Yet you continue to attack me with unsubstantiated accusations and innuendos. Until you can actually proffer some contrary evidence to invalidate my claims, you will only perpetuate your own impotence in this discussion.
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Lets see, "I'm saying that a distribution requires conveyance of a work in fixed form." Was that not you or is there another DandonTRJ posting here?
[2] You fail to explain how I allegedly contradicted myself.
First you claim that "distribution requires conveyance of a work in fixed form", and then you claim that electronic downloads (which are not conveyed in a fixed form) are distribution. If you can't see the contradiction there then you're beyond my ability to explain it to you.
[3] The fact that a stream can be captured doesn't change the fact that the action of streaming is a performance rather than a distribution.
It highlights your lack of understanding of the situation. You seem to think that there's some magical difference that exists that doesn't. The same stream can either be captured to a storage device or not. THE SAME STREAM. Whether or not it is is up to the customer. Or are you arguing that Zediva is responsible for the actions of the customers? From what you've stated, it then follows that is was the customers failure to capture the streams that made them public performances. How is that Zediva's fault?
[4]As for the customers, I said performance; not public performance. You added the public part.
Excuse me, I thought we we talking about Zediva being accused of public performances. I didn't realize that I added the "public" angle. What story did you believe you were commenting on if not this one?
It's a private performance if they play it for themselves, which is not infringing.
I think you need to go read what the judge said again.
[5] If you read the Cablevision decision, you will see the judge make the distinction that a buffer copy of a program in a device such as a DVR is fixed for an insufficient amount of time (about 1.8 seconds in that case, IIRC) to constitute a copy of the work as defined by copyright law.
Ahh, so 1.8 seconds would not infringe, but 2 seconds might? See, that's a problem. There was noting in the written law about 1.8 seconds before that. What we have here is judges making up law after the fact.
You're welcome to pretend there's no distinction between a buffer copy and an actual copy, but the courts have contradicted you.
Scientifically, I can see no reason that 1.8 seconds isn't an arbitrary and irrelevant number with no distinguishing feature other than being picked out of the air by a judge. You're free to pretend that there *is* a real distinction, but science contradicts you.
Whatever you think you know about the "reality" of technology is irrelevant to these discussions about what the law actually says.
That's kind of the point, that the law is out of touch with reality.
You may have compelling policy reasons to disagree with the courts and legislature, and I may even sympathize with them, but none of that invalidates my factual summary and analysis as to what those courts and that legislature have dictated up until now.
I'm just looking at the situation from a scientific perspective. The physical world doesn't care if you sympathize or agree with it or not. And it doesn't care what is morally right or wrong. It is the same regardless. Of course, like courts once ruled against Galileo and decreed that the Sun circled the Earth, science and the legal profession often disagree.
I never argued that these distinctions are "right" from either an ethical or technological perspective. Merely a legal one.
I'm just pointing out the logical inconsistencies of the law as you presented it and the technological mistakes you used to support it. It has nothing to do the ethics of the law, only the truth.
Until you can actually proffer some contrary evidence to invalidate my claims, you will only perpetuate your own impotence in this discussion.
I think I pretty much did on the technological points. On the legal points, I just pointed out logical absurdities. Sorry if that bothers you.
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I really want to reiterate that I have no quarrel with your arguments as to why the courts, in deciding the laws as they have, have been silly, arbitrary, capricious, or just stupid. All I have done in this thread is provide THE COURTS' reasoning, not my own. You seem to be operating under the false belief that I'm advocating for a certain understanding of technology in the law. I'm not. I just want to make sure that people know what precedent and law this decision was actually based on. I would appreciate if you could understand that and not bite my head off for doing so.
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Technically, the difference is in what the customer is doing after receiving them, i.e. whether or not they are keeping them. To make Zediva responsible for that is to make them responsible for the actions of the customer. There may be a legal fiction that says the bits are different, but that doesn't make it so. I really don't know how to make that any simpler for *you*.
[3] There -is- a legal difference between streaming and distributing. Your insistence otherwise carries no weight.
I didn't claim there was no *legal* difference and your claim that I did is itself a false claim. You seem to be having a hard time accepting that your precious legalities may differ from the physical realities of the real world.
If the user records a non-downloadable stream of his own accord, Zediva is not responsible for a distribution because that was not the nature of their transmission.
You're just full of contradictions, legal fictions and technical ignorance. If a stream is truly "non-downloadable", then the "user" would not be able to "record" it, now would they? However, you first you posit a stream that can't possibly be downloaded, then you talk about someone doing it. Wow. And the really funny part is, it seems that you can't even see the logical contradiction there. But then, I suppose anything is possible in the imaginary world of "the law".
Then, you go on to further contradict yourself. You previously stated that if the the stream is downloaded, then Zediva is distributing. Now you say that in such a case "Zediva is not responsible for a distribution". You even go so far as to invoke the name of "nature" in order to support that position while continuing to ignore the very laws of nature. Laws of man trump laws of nature, eh?
[4] I was trying to explain what actions constitute performances, including when performances are actionable. For example, the viewing by the user can be private even when the stream by Zediva is considered public [which is what you seemed confused about].
Legally, I agree anything is possible. It all just depends on what someone with legal "authority" wants to make up. I'm not arguing that. I'm just continuing to point out that legal fictions do not reality make.
Copyright law is complicated.
Copyright law is contorted.
It would reflect better on you if you didn't automatically accuse me of lying just because a point is nuanced.
I never used that word. But you repeated false technical (not legal) claims, despite having the falsity of such claims pointed out to you. I'll let that speak for itself.
[5] A case decided after Cablevision seemed to indicate [arguably in dicta] that it would take a few minutes of sitting on a computer for a file to be considered fixed. 1.8 seconds happened to be the amount of time the DVR at issue in the case held the video in its buffer. I never framed 1.8 as a hard-and-fast rule. You should probably stop assuming so much.
Backpedal much? Why am I not surprised. I suspect that if pressed, you could tell me what the exact limit is, could you? That's the kind of thinking that wants to define a "limited time" in copyright law as "forever minus a day".
I really want to reiterate that I have no quarrel with your arguments as to why the courts, in deciding the laws as they have, have been silly, arbitrary, capricious, or just stupid.
But then you go on a quarrel with them. Contradiction much?
All I have done in this thread is provide THE COURTS' reasoning, not my own.
No, you made technical statements that the court didn't make. I think that makes them yours.
You seem to be operating under the false belief that I'm advocating for a certain understanding of technology in the law. I'm not.
I'm just going by what you wrote.
I just want to make sure that people know what precedent and law this decision was actually based on.
Thank you, and I appreciate that. I truly do.
I would appreciate if you could understand that and not bite my head off for doing so.
Where you went of the rails is when you deviated from just *presenting* the legal arguments and began to try to twist physical reality (either intentionally or not) to make it fit the law. Stick to arguing stuff that you actually know about and you'll be much more credible. If you want to argue the technical stuff, go learn it first. There are lawyers that have degrees in specialized fields such as medicine and engineering in addition to their law degrees. There's a reason for that.
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Dispending with my alleged contradictions: This is not about "truly" downloadable or not, it's about what the nature of the service is. YouTube offers broadcasts of works [public performance], even though it's technically possible to download them [distribution]. If Zediva does not offer a way to download its movies, it is arguably not guilty of distribution, even if someone figures out a way to turn the stream into a fixed copy of the work on their hard drive. This is not my novel interpretation of technology, only my report on how copyright cases has often treated such technology up until now. Maybe those interpretations are "false," as you say. But since that's how the courts have ruled, I and the rest of this nation are saddled with them until the courts change course.
And finally, I did not backpedal on the duration a work must be contained in a buffer to be considered a fixed copy. I gave you more information on what courts have speculated that threshold would be after telling you about a duration one court considered too fleeting. You keep trying to persistently impugn my intellectual integrity when all I've done is try to explain the case law in this area, not advocate for its correctness. You keep thinking I've gone beyond the law and started folding in my own technical explanations. I haven't. It's all been the courts.
With that, I bid you good day.
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You have indeed.
It's all been the courts.
And all those citations are strangely missing.
With that, I bid you good day.
Good day to you as well.
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Zediva makes a copy of a movie stored on a DVD using a DVD player and streams it to one customer. I know it has to be a copy because the DVD stays with Zediva. Later they make another copy and stream it to another customer. I know it's a new copy because the DVD player doesn't store anything.
Cablevision makes a copy of a movie stored on a hard drive using a computer and streams it to a customer. Later they make another copy of the same movie and stream it to another customer.
How are these different, again?
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If there's a streaming right involved, it's violated by the end-user renting the equipment and playing back the DVD, not by the company that rented out the equipment.
However, it's perfectly legal to make backups of your DVDs onto a media server and stream them to your TV, just like it's legal to make backups of your CDs on your iPod. So, effectively, the end-users aren't breaking the law either.
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I don't believe that is legal. The DMCA made it illegal to circumvent the access protection (CSS) on any DVD, even in fair use situations.
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Besides, there's no way of knowing if Zediva hacked around CSS or actually streamed everything to the end-user, including the encryption. Given the lengths they've gone to to stay within the law, I'd say the latter is very likely.
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I know. I was just pointing out that making backups of your DVD's isn't all that legal.
Besides, there's no way of knowing if Zediva hacked around CSS or actually streamed everything to the end-user, including the encryption. Given the lengths they've gone to to stay within the law, I'd say the latter is very likely.
Yeah, I'd agree with you that.
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First, yes, there's a way of knowing. The obvious way of actually investigating their operations to see how their DVD players and servers are setup.
Second, the DVD player does the decrypting, and these appear to be standard DVD players with a valid license to decrypt CSS. Once the content comes out the output port of the DVD player, it is no longer encrypted.
There's no DMCA anti-circumvention case here, otherwise you can bet that would've been the argument.
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Yes, but isn't it fun to make stuff up anyway?
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Except that the public performance right doesn't only include making a performance, but authorizing a performance as well. So by furnishing the means, you authorize the infringement. At least, that's how I recall cases like Redd Horne resolving the issue.
However, it's perfectly legal to make backups of your DVDs onto a media server and stream them to your TV, just like it's legal to make backups of your CDs on your iPod. So, effectively, the end-users aren't breaking the law either.
If the user created the copy himself and streamed a dedicated version of it only accessible to himself, he'd fit into the Cablevision exception. Here, Zediva didn't technically adhere to the "one user, one copy" formula of Cablevision because each DVD was set up to be used multiple times. The legal formulations for this issue are ridiculously specific and fact-dependent -- like Mike said, it's copyright law desperately trying to adapt to new technically and arguably failing.
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Indeed, by like I said, there may not be any infringement by the users in the first place.
About Redd Horne, as far as I can tell the crucial difference is that they were not renting out the tapes and VCRs, they were doing on-demand performances in the back of the shop. That's not the case with Zediva.
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First of all, a public performance is defined like this in US law:
Given (2), Zediva must sound pretty guilty. But, right before this bit, there's an explicit exception:
In contrast to the Redd Horne case ("Unlike a sale or rental, Maxwell's remained in physical control of the videotape at all time", which is why they were found to be doing performances and were not protected by first sale), Zediva stressed repeatedly that it was renting the DVD and player to each user. Their T&C should confirm this -- when the disc is in the drive and spinning, the user is legally in possession of that disc.
It is not a performance. IMO the judge was wrong.
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The customer's control of the device is the whole point, not some side issue. It may be housed at Zediva's premises, but the customer is renting and controlling it. They aren't tuning into a broadcast.
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Yes, it's simply another legal fiction.
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Not at all because, if you'll notice, (2) only applies "a place specified by clause (1)". Or, at least it used to. The judge is this case has essentially decided that the limitation of places as described in (1) no longer applies and that a public place is any place with a human being in it. That's what's so jaw dropping about it.
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Nope, didn't miss it, it didn't apply. Unless, of course, you redefine the general public as being any human being, which is what the judge here, and now you, seem to have done. Then anything viewed by any human being becomes a public performance and everyone needs a public performance license for everything. Woo hoo, lawsuits, here we come!
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Hang on... Can we define 'physical copies'? Obviously, a DVD is a physical copy. Is a book containing the entire bytecode a physical copy? What about a flash drive containing the movie? If this is then true, then one could argue that the bytecode itself is the physical copy. Thus, giving the bytecode to someone is Distribution, no? Why does it matter whether the stream of bytes is on plastic, paper, silicon, or over wires?
Unless I'm mistaken in my understanding, the distribution is not straight to someone's TV? There's a box on the other end? The 'performance' right covers projection of the material, as say via movie theater.
To put it succinctly, why is streamed bytes, over long distances, a Performance, while streamed bytes, over short distances, a Distribution? There exists no physical difference, there is still a distribution of a physical copy of the work in both instances. Is it true that if you were to withhold the length of the cable, one could not determine if the use were a Distribution or a Performance?
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You seem to lack a technical understanding of how this worked, so let me break it down for you.
1. DVD's contain digital files.
2. When Zediva conveyed the movies, they were conveying digital files.
3. Zediva didn't render the files visually perceptible.
4. The files were rendered visually perceptible only by the customer.
So, by what you stated above, Zediva was involved in distribution and not a public performance. If anyone was creating a public performance, then it was the customers in their "public" homes, so they should have been the one sued if that counts as a public performance.
That's why this ruling is so wacky. I see that you've been trying to defend it here, but even you wind up arguing against yourself.
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Zediva was uploading, not downloading. The customer was doing the downloading. You got it completely backwards, no wonder you're so confused.
Performance is the conveyance of the file in a fleeting, ephemeral display.
Which was performed by the customer after receiving it from Zediva.
Merely streaming it through a buffer, without sufficient fixation of the full file on the viewer's hard drive, is a performance.
Huh? Downloading less than a full file doesn't count as a download? Really? Do you have a citation for that assertion? Because it certainly flies in the face of many other court cases.
Certainly, the customer may have been involved in rendering a performance...
Yes, but actually holding people responsible for public performances for playing DVDs wouldn't be good for DVD sales, would it? Better pin it on someone else then.
...but that does not change the fact that the law states so did Zediva.
Ahh, the someone else. Despite the fact that they didn't, let's just say that they did. That, my friend, is what is known as a legal fiction. It is, however, a fiction nonetheless. And no amount of judicial hand waving can change that truth.
I'm not "defending" anything -- I'm simply explaining what the state of the law is.
This judge, and you, may be trying to "interpret" things a certain way, but the truth remains the truth.
You may find it suspect [given your "technical framing" of the issue], but that does not change the outcome.
True, the outcome is in the hands of those with the power to enforce it. I don't think anyone is arguing that. Still, that doesn't change what they're trying to do or make their imaginary reasoning that they trying to use to disguise it any more truthful. All I'm doing is taking apart their cover story.
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As for downloading less than the full file, that's not what I meant; I meant that if the work isn't being transferred for aggregate fixation and is only on one's hard drive for a fleeting amount of time, the portions that pass through the user's hard drive are not considered to be a copy of the work. Read the Cablevision case, where the buffer copy was not saved for more than a couple of seconds at a time and the judge thus ruled that it was not a copy of the work under the requirements of copyright.
As for the respective performances, this is not an issue of misplaced liability [like chasing after ISPs for user's alleged misconduct] -- under the delineations of copyright law, Zediva performs the work by transmission, and the user performs the work through his machine. The difference is that the user's performance isn't necessarily public (he could be watching it alone in his home), while Zediva's business structure necessarily makes its performance public (by offering the streams to any member of the public, as I've discussed throughout these threads). Call it a legal fiction if you wish -- it is the law. Again, I'm not saying I necessarily support these interpretations/fictions/what-have-you. I'm just letting you know that they exist, and that's why the courts are ruling as they do.
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Also, it seems to me from what DandonTRJ was saying, is that the definition of distribution lies with the physical object (DVD/DVDPlayer) leaving your possession and off the premises.
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Are you "a member of the public"? If so, then apparently so.
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That seems like a lot of work just to satisfy the terms of the Cablevision precedent.
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This can't be said often enough or loudly enough. Thank you.
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You really think that 'kind of' makes sense?
I got a Bridge in Brooklyn that I'm not really using any more, how would you like to purchase it so you can go jump off and get sued for a public performance of jumping?
So basically what you are saying is that you are fine when big corporations twist and interpret laws in ways they were not intended, that's just fine and part of doing business, but when it's a small company designing a business model that appears to comply with the existing laws, only to have a Judge 'reinterpret' the laws, they are doing something illegal?
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And let me reiterate for the nth time in this thread that I'm not rooting for one side or the other in this fight. I think Zediva's theory is novel and am interested to see if they prevail. I have no interest in preserving the business models of legacy entertainment companies. I'm just saying that the law has, up until now, been interpreted in a certain way, and Zediva's argument may require a reinterpretation of that law in order to survive.
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Length
I'm not so sure about that, Mike. I think the legal limit might be closer to 6 feet. That's why you see so many 6 foot cables for sale. Many stores don't want to possibly get in trouble for contributory copyright infringement by selling longer cables.
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Is this stealing?
I guess I'm confised as to what cooralation could be drawn between this and the mantra that piracy is stealing. As has been pointed out numerous times, copying a digital work is not the same as stealing a physical object (car, paper, bike, dog, wife, etc.) But when a company tries to use the physical object and allow one person in their home to veiw it (agreeing with mike on the very convuluted way they define "public veiwing") that is also not ok. I guess the only way that I can watch any of these companies content is to go to pre-approved veiwing locations (which of course will be as inconvienient for as many people as possible), ensure that I have the required pre-screening forms filled out in triplicate to prove that I am who I say I am prior to being authorized entry. Then, after paying the application for pre-screening fee, the entrance fee, the veiwing fee, the seat fee, the entertainment fee, and the parking fee, I can finally enjoy some of Hollywood's recycled movie from 1930.
All kidding aside, it is a sad world that we live in that what the consumer wants and how the consumer wants to veiw content is blocked by the companies that create (loosely applied) content.
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These rulings just happen to take place at the special olympics.
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Your honor, for clarification, using your own definition that any member of "the public" watching a performance in a private place constitutes public performance, can you also define "private performance" without using the words "hermit" or "castaway"?
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I wonder...
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So how many people make it public?
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How long is the cable?
If I have the DVD in my living room but the TV in my garage, is that OK? What if the garage is detached?
If I put a DVD onto my home computer, drive to my dad's house, and stream the DVD over the Internet, is that a public performance? What if I just bring the DVD with me and play it on his player instead? The same two people are watching the same damned movie.
If my being a "member of the public" means that watching a DVD (by myself) that has been digitally recorded and stored remotely is a public performance, and if my playing a DVD in a bar (with other people) is a public performance, why isn't watching a DVD (by myself) in my home a public performance? I'm still just as much a "member of the public" for one as for the other, aren't I?
Maybe it's an ownership thing. How about if the equipment belongs to somebody else? If my daughter uses her school-provided laptop to store and play a movie, is that in violation? How about if we leave the computer at home and drive to my dad's house and stream the DVD? Is it different because we're borrowing or leasing the computer storage?
How about if I lease remote storage and store the movie there?
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Yes, both of those would be public performances. That's why responsible schools and businesses remove the media players from their computers. Otherwise they would need to buy public performance licenses to cover any media played on them.
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At first I was thinking it could be the maximum cable length before a repeater or regeneration of the signal was needed. but that doesn't work since I have used signal boosters to have a duplicate image on a screen in a other room. I am sure that is considered a public performance too.
I think the only way it would work is if the signal originated outside of premises that are under your immediate control. So if your dvd player is in somebody else's appt it is public. if the dvd player is in your appt then private.
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The problem with that is that's not the law. You're just making stuff up.
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PLEASE try reading DCL's words next time...
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Cablevision is unique because the end user remains in total control. Cablevision provides only a blank service that the end user controlled, nothing more.
The length of the cable is only a discussion in how it distances you from direct control.
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And in this case the renter still controlled playback. Still, this decision wasn't based on that.
Cablevision is unique because the end user remains in total control. Cablevision provides only a blank service that the end user controlled, nothing more.
The playback and display in this case was still under the renter's control. Are you trying to ssay otherwise?
The length of the cable is only a discussion in how it distances you from direct control.
You seem to be laboring under the false belief that control can only be executed through short cables. That is incorrect.
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Who gets the disc and puts it in the machine? Does the end user to do it? Nope. It is someone else. Therefore, that is outside of the user's control. Right away, there is a third party in the transaction.
You said: "You seem to be laboring under the false belief that control can only be executed through short cables. That is incorrect."
Me: my point exactly. The length of cable argument is nothing, except that the longer the cable gets, the more it seems likely a third party will have to get involved to do the work. Third party involvement is what really kills this one, and that only happens because the playback machine is at the end of a really long cable, too far for the user to completely control.
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Nor are they in "full" control of the experience when they playback the DVD at home. I suppose you've never heard of the "playback control restriction" scheme included in licensed players to make you watch commercials, "FBI Warning"s or whatever before watching the movie. If that makes it a public performance, then there sure are a lot of unlicensed public performances going on.
Who gets the disc and puts it in the machine? Does the end user to do it? Nope. It is someone else. Therefore, that is outside of the user's control. Right away, there is a third party in the transaction.
Third parties are almost always involved in playing back DVDs, unless you designed and built your own player from scratch all by yourself. I don't think anyone has ever done that. Those third parties, such as the MPEG Licensing Authority, determine what your player will and will not do (such as decrypting the disc) in response to your requests.
Me: my point exactly. The length of cable argument is nothing...
OK.
except that the longer the cable gets, the more it seems likely a third party will have to get involved to do the work.
Wait, didn't you just say that the length of the cable is nothing? Except, when it is, huh? Sigh.
Third party involvement is what really kills this one, and that only happens because the playback machine is at the end of a really long cable, too far for the user to completely control.
Third parties are always involved. Fail.
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So, when I go to my mom's house and pop a DVD into the player for her, that makes it a public performance? Interesting legal theory you have there, but I can't help but think that it's one that you're just making up.
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Corrupt judicial system?
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It easy to do, too. You just start with the conclusion that you want and work backwards from there. You can just paper over the cracks with "intuition".
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Internet is Illegal
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DVD
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Re: DVD
A single DVD, in a single player is rented to a single subscriber to be played within that subscriber's home.
Just like when blockbuster rents you a DVD and a player device.
When the renter's rental period is up, the DVD and player may then be rented to another renter.
Seems clear to me.
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Torrent away
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Ever wonder what it was like to live during the decline of the roman empire?
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There are two main bodies of law: Statutory law and case law. Statutory law is written by the legislature. Case law is written by judges. And since case law defines statutory law to mean whatever the judges say it means, judges trump the legislature.
Corrupt/ignorant judges have WAY too much power and can create and take away rights at their own whim (as the supreme court has shown us by continually ignoring the 1st/4th/etc amendments as they see fit)
The law is whatever the judges say it is and they can be pretty creative sometimes.
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As an aside...
Truly appreciated - thank you!
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One word
No sane judge can come up with a reasoning like that without an incentive.
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confused ( no shit eh?)
I have a new business Idea.................
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Law has to be in legalese because the English language is imprecise. Thus, you must craft definitions and use them carefully, creating legalese.
I know this as a Computer Science graduate, trying to write specifications for programs. You have to end up writing mathematical formulae for the most part.
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The joys of copyright law and big media
Sorry about your luck if something happens to the disc and your kid decides to ruin it. Guess you get to buy another one.
And that's what it's all about. Buying more copies. They'd have you buying a new license for every device if they could.
This is the stupidity we live with in dealing with Hollywood content.
It is what drives many to find a way to rip the DVD anyway while waving a middle digit at the industry. No you aren't getting another $35 from me to buy a digital copy of Mad Men to watch on my iPad. Nevermind it's for personal use.
Which does beg a question too on public performance. Watching a DVD on a player you bring on an airplane flight would be a performance and you'd be breaking the law there too, heck probably have been.
They really have no idea how to interact or work with their customers other than treating them as criminals right from the start. And the more of these restrictions and demands they get made into law the more often they can claim damages for us not paying them every time we watch a movie.
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WTF? Judge should be dis-barred
So, if a member of the "public" aka, everyone, watches/listens to something, it is a public performance.
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Re: WTF? Judge should be dis-barred
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Zediva =/= Cablevision
So, there you go, an airtight proof that the two cases are not _identical_. Just don't ask me to further prove that the difference is really meaningful to anyone except someone looking for an excuse to claim that they're "different".
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DVD in the privacy of your own home a "public performance?
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Customers?
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