1984 Case Shows Abuse Of Phrase 'Public Performance' Has A Long, Ugly History
from the sooner-or-later-you'll-be-paying-license-fees-just-to-touch-yourself dept
As Zediva faces an injunction for using an extra-long "cord," it has become clear that the various entities surrounding certain intellectual property are more than willing to beat the words "public performance" into any imaginable shape in order to add a few more dollars to their bottom line.In the Zediva case, "public performance" was half-nelsoned into this nonsensical phrase: "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." Anytime individuals performing certain actions start getting referred to as "the public," you know someone's just trying to collect yet another licensing fee.
This abuse of the phrase "public performance" goes way, way back. In 1984, a video rental business named Maxwell's found itself on the receiving end of a lawsuit from Columbia Pictures. The "offending" idea was simple: set up private viewing booths for rented movies. This was back before everyone and their grandmother had a VCR or two laying around the house, casually eating rented tapes while flashing a blank, who-me? look of "12:00." Since VCRs had yet to hit true affordability (Sears had one listed at $458.95) and not everyone could afford the rental fees for the store's machines, Maxwell's decided to help customers out by allowing them to watch movies in private booths on their premises. (The following legal description is taken from the above-linked filing):
[6] Each store contains a small showroom area in the front of the store, and a "showcase" or exhibition area in the rear. The front showroom contains video equipment and materials for sale or rent, as well as dispensing machines for popcorn and carbonated beverages. Movie posters are also displayed in this front area. In the rear "showcase" area, patrons may view any of an assortment of video cassettes in small, private booths with space for two to four people. There are a total of eighty-five booths in the two stores. Each booth or room is approximately four feet by six feet and is carpeted on the floor and walls. In the front there is a nineteen inch color television and an upholstered bench in the back.Seems simple enough: patrons pay the rental fee plus an added cost per head to enjoy watching movies they wouldn't have been able to otherwise. Of course, if this is a useful and innovative service that involves intellectual property, it needs to be shut down.
[7] The procedure followed by a patron wishing to utilize one of the viewing booths or rooms is the same at both facilities. The customer selects a film from a catalogue which contains the titles of available films. The fee charged by Maxwell's depends on the number of people in the viewing room, and the time of day. The price is $5.00 for one or two people before 6 p.m., and $6.00 for two people after 6 p.m. There is at all times a $1.00 surcharge for the third and fourth person. The fee also entitles patrons to help themselves to popcorn and soft drinks before entering their assigned rooms. Closing the door of the viewing room activates a signal in the counter area at the front of the store. An employee of Maxwell's then places the cassette of the motion picture chosen by the viewer into one of the video cassette machines in the front of the store and the picture is transmitted to the patron's viewing room. The viewer may adjust the light in the room, as well as the volume, brightness, and color levels on the television set.
[8] Access to each room is limited to the individuals who rent it as a group. Although no restriction is placed on the composition of a group, strangers are not grouped in order to fill a particular room to capacity. Maxwell's is open to any member of the public who wishes to utilize its facilities or services.
While the court found that Maxwell's was covered in every other instance of possible copyright infringement, it still had an issue with the "public performance." Great pains are taken in these rulings to determine that "the public" doesn't necessarily have anything to do with being "in public" and that, in fact, each individual is a "member of the public" and therefore, individuals watching or listening to movies or music are enjoying a "public performance."
"a performance made available by transmission to the public at large is `public' even though the recipients are not gathered in a single place. . . . The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms . . . ." House Report, supra, at 64-65, U.S.Code Cong. & Admin.News, p. 5678. Thus, the transmission of a performance to members of the public, even in private settings such as hotel rooms or Maxwell's viewing rooms, constitutes a public performance. As the statutory language and legislative history clearly indicate, the fact that members of the public view the performance at different times does not alter this legal consequence.So, there's no way around it. Anytime an individual enjoys intellectual property that someone else paid for (first-purchase), they need to pay a "public performance" fee. This has nothing to do with protecting intellectual property and everything to do with maximizing the amount of times a rights collection group can get paid for the same product.
The court then goes on to point out that the "right of the first sale" can be tossed out because the tapes never left the store:
In essence, the defendants' "first sale" argument is merely another aspect of their argument that their activities are not public performances. For the defendants' argument to succeed, we would have to adopt their characterization of the "showcasing" transaction or activity as an "in-store rental." The facts do not permit such a finding or conclusion. The record clearly demonstrates that showcasing a video cassette at Maxwell's is a significantly different transaction than leasing a tape for home use. Maxwell's never disposed of the tapes in its showcasing operations, nor did the tapes ever leave the store. At all times, Maxwell's maintained physical dominion and control over the tapes. Its employees actually played the cassettes on its machines. The charges or fees received for viewing the cassettes at Maxwell's facilities are analytically indistinguishable from admission fees paid by patrons to gain admission to any public theater. Plainly, in their showcasing operation, the appellants do not sell, rent, or otherwise dispose of the video cassette. On the facts presented, Maxwell's "showcasing" operation is a public performance, which, as a matter of law, constitutes a copyright infringement.Now we're right back to an argument about the "length of the cord," only this time framed as "the length of the transit." In essence, because the videotapes were rented and watched in the same location, it is now an issue of copyright infringement. What would have happened if Maxwell's had rented the tapes in one store and allowed the playback in another store? If it had two connecting strip mall storefronts, the tapes would never have left the premises but it could be safely argued that they weren't being viewed at the same address. No doubt the court still would have found that this was a violation as well, despite any other twists like different addresses and business names. The fact that anyone even needs to consider these sorts of possible loopholes indicates how truly screwed up the "public performance" aspect of copyright actually is.
Once the phrase "intellectual property" gets thrown into the mix, it seems all conventional wisdom goes right out the window. This was simply a matter of a business filling a need (video viewing for those without prohibitively expensive VCRs) and copyright was used yet again as a one-size-fits-all legal blunt force object, operated by an industry known for its greed and shortsightedness. This Columbia Pictures vs. Maxwell's case is being tossed around by pro-copyright writers as precedent in the Zediva case. Of course, adding up two wrong decisions doesn't actually make anyone right, it just makes it easier for the next innovative service to be shut down under ever-shifting determinations of what actually consitutes a "public performance."
God forbid anyone enjoy art forms like movies and music "in public." It seems as if the guardians of intellectual property would like nothing better than for their "products," which are hyped extensively and which apparently need millions of purchases in order to recoup their "investments," to be enjoyed as solitary, lifeless experiences, preferably purchased at full retail by everyone at all times. And as for the commenters that infer constantly that the writers and readers of this site must "hate" artists because of our collective antipathy towards copyright... well, have you ever considered how much certain art-related industries must truly hate their customers? How many other businesses could achieve this sort of success while actively limiting the options available to the public? How many could honestly consider a single person (in the case of streaming music and videos) to be the "public" in the phrase "public performance?" The answer is zero. What we have today are soulless husks on the edge of extinction, wafting through the courtrooms and congressional offices of the US, propping themselves up on overreaching legislation and endless fees, constantly striving towards an endgame where everyone pays for everything every time they use it and that buying movies or music means never truly owning them.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, public performance
Companies: columbia pictures, maxwell, zediva
Reader Comments
Subscribe: RSS
View by: Time | Thread
Nice post, but you didn't make the case for abuse, you made more the case of ignorant business models.
[ link to this | view in chronology ]
Re:
In both cases, the tape and VCR were tied up and could not be used at the same time by separate parties. If Party 1 was already watching a tape and party 2 wanted to watch the same, they would have to wait until party 1 was done (in the case of no more than one tape) or rent a second tape and VCR (in the case of multiple copies)
This is one of those cases where the "public", people watching content, have a very different interpretation of legal language than the lawyers.
Copyright law was meant to benefit the public. Unfortunately, as this site and many others like it have shown, it has been mutated and malformed by content producers to do the exact opposite of that function.
[ link to this | view in chronology ]
Re: Re:
The difference that the court saw was that Maxwell's didn't "rent someone a tape" since the tape never left Maxwell's possession. In the court's eye's they were basically selling tickets to a show. It's pure speculation at this point, but I'd be willing to bet that if Maxwell's had actually handed over the tape and let the customer enter the room & push play on their own, then Maxwell's would have been within the law. Yes, it sucks since they were only trying to offer the customer a better experience. But unfortunately that little bit of extra service provided is what crossed the line between "renting out a tape & a vcr" and "selling a ticket to a movie". The only real difference between Maxwell's service and any other movie theater is that Maxwell's customer got to choose when the show started (by shutting the door).
While I agree that there have been some really poor interpretations of "Public Performance", on careful review I don't believe that this was one of them.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
It does benefit the public (the public being entertainment execs)
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Ah-ha!
[ link to this | view in chronology ]
Re:
The "public" in the phrase "public performance" is not referring to people as members of the public, but rather a performance in a public place. A closed off back room accessible only to a private party is not public.
An example of a public performance is setting up a live concert in the middle of a city park.
[ link to this | view in chronology ]
Re: Re:
What happens if a movie theater allows only a single person into the theater at a time. Is that a public performance?
What about those nasty coin op booths in a porn book store, you know, one person per booth? Is that a public performance?
At the end of the day, they are all public performances.
See how it works?
[ link to this | view in chronology ]
Re: Re: Re:
See why that is stupid?
[ link to this | view in chronology ]
Re: Re: Re:
See how it works?
Now let's exercise our imaginations on the family scene. We are both sane individuals and we agree that if I rent a movie and watch at home with my friends it is NOT public performance, right? Now let us twist this. So now let us pretend I don't have a dvd/blu-ray/holocrom/[insert future tech here] because it's too expensive or I don't feel like buying.
Then I RENT the said equipment, including the television (sounds dumb but can be done right?) and watch the said rented movie with my friends. I know it's a tad complicated but I guess we can say it is NOT public performance. Right?
So let us twist it a little further: I come to the city to visit some friends and stay at a hotel room. Then (in agreement with the hotel staff and maybe some extra fee) I get those friends to my room and we watch a rented movie on the equipment that belongs to the hotel. I know your brain hurts but I think we have to agree that this is not public performance.
And then some devilish twist: some video rental store provides a physical location with a player and a TV where I can rent the said set up (room + equipment) and the movie and watch it with my friends. Ah now that's public performance for sure because it is completely different from all proposed scenarios. Keep having these delusions AC boy, keep having them. And find a psychiatrist while you are at it because you seem to need one.
As for the rest of the sane ppl that have ever read anything about the Zediva case it is clear that the Judge stretched the interpretation of the law to lunatic levels (or rather, greedy levels). And MAFIAA's greed is so damn huge that they are completely blind to the needs of their customers. Customers? Oh no, they are all filthy idiots that don't give all their money for MAFIAA. They are all potential lawsuit targets.
[ link to this | view in chronology ]
Re: Re: Re:
A room in my house, that contains my TV. Accessible only to me != public place.
If i allowed general access to the public at large to my living room, even if that was on the basis of one person at a time then you could possibly argue it is "a public place".
See how it works?
[ link to this | view in chronology ]
Re: Re: Re: Re:
Movie Theatre == privately owned business, ergo not a public place.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Actually, in a very real sense, no movie is a performance at all, but a playback. The performance was usually completed in Hollywood years earlier to the tune of 150 million bucks. Which would buy 10 new state of the art schools if anyone is counting ;)
[ link to this | view in chronology ]
Re: Re: Re:
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, 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.
This is from the definitions (sec 101) in Title 17. Are you implying that 2-4 people is a "substantial number of persons"?
[ link to this | view in chronology ]
Re: Re: Re: Re:
It's funny how the law says that groups of family and friends don't qualify as "public" and the court filing makes a point to say that it was only groups of family and/or friends.
[ link to this | view in chronology ]
Re: Re: Re: Re:
This is the problem right here. You don't have to meet any of the conditions of part 1 if the performance is for 'the public.' Problem is the statue doesn't explain what 'the public' means so the court interpreted it to mean 'any member(s) of the public.' Personally I think it's obvious that they're referring to broadcast type performances where any member of the public could tune in given the right equipment but on the other hand you don't have to squint very hard to see how the judge could make the situation with rental booths fit this statute. It's really all a very clear example of how precise a law has to be, if there's any room for interpretation at all it will be exploited by someone.
[ link to this | view in chronology ]
Re: Re: Re:
Actually, no. The whole point of the "public performace" thing is to prevent someone using one copy of a movie to show it to many people at once. If the theater only allows one person at a time, then you are essentially renting the movie for your own private enjoyment.
In a normal movie theater, anyone can watch so long as they pay for a ticket. In the VCR movie rental place, only the people renting the movie can watch, and the business can't tell the people they have to let someone else in because they want to watch the movie too.
If a performance is public because it is seen by one member of the public, then what exactly is a private performance? Can I watch the video at my apartment? Is that somehow different because I'm renting the room for a year instead of a few hours?
[ link to this | view in chronology ]
Re: Re:
Granted this is frustratingly circular, what with the way it defines "public" by reference to the "public". But as the court points out, Congress's definition specifically does include a closed off back room accessible to a succession of private parties, even if only a single party at a time has access. So contrary to what you wrote (which does make perfect English sense), the law defines a public place by reference to people as members of the public.
Mind you, I'm not defending the language of the statute, just pointing out that the court's decision is much more reasonable in the context of interpreting that statute�which was intentionally made broad enough to include hotel rooms as public places.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
So if an employee of Maxwell's had a short conversation and got acquainted with everyone before watched the movies they would have been fine? Or I guess he could marry them, then divorce them on the way out
[ link to this | view in chronology ]
Re: Re: Re:
/rant on
That can apply to all types of streaming or transmission. It can even be arguably applied to renting a DVD. It's that kind of ridiculous legal doublespeak that has guaranteed I will never respect copyright law.
/rant off
[ link to this | view in chronology ]
Re: Idiot reasoning
Nice post, but you didn't make the case for abuse, you made more the case of ignorant business models."
So, explain how this is ANY different than someone renting the video and watching it at a friends house... or... if you want to stay commercial... taking it back to their hotel room and watching it... or... if you REALLY want to get nuts... how is it any different than renting the video and then... renting a vcr (dvd, or whatever) and then watching it in their RV in the PARKING LOT of the rental store?
The article is 100% correct. Mention intellectual property and common sense goes out the door and IQ's drop to slightly above chimpanze....
BA-NA-NA?
[ link to this | view in chronology ]
Library
I can go to that pirate mecca--the "Public Library"--and free of charge (*gasp*) get a movie with my library card. Usually if I feel like it I can watch the movie in the library, too.
Since the library is funded by donations and taxes rather than a commercial operation... never mind, I figured it out. There's no money to be gain from suing a library.
[ link to this | view in chronology ]
Re: Library
[ link to this | view in chronology ]
Re: Re: Library
[ link to this | view in chronology ]
Re: Library
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
We have to take note of the morons who sued Zediva. We could be next for making a public performance for ourselves.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I c wut u did thur.
[ link to this | view in chronology ]
Separate Transactions
Transaction 1 - Movie rented with right to leave store with it and keep it for the normal rental period.
Transaction 2 - Rent room with TV and VCR (in room), not behind counter. Customer rent's room for specific period of time, and can watch rented tape or tape they acquired elsewhere, or sit and twiddle thumbs for that mater during the time frame.
If customer elects to rent tape, rent room, watch tape, and then return tape without leaving, so be it.
[ link to this | view in chronology ]
Re: Separate Transactions
[ link to this | view in chronology ]
Re: Re: Separate Transactions
[ link to this | view in chronology ]
Indefinitely repeatable performances is what gives value to recordings...
So as usual, I'd attack the problem from outside and with a sledgehammer: LIMIT profits on ANY and EVERY bit of "content" to, say, twice its production costs. AFTER THAT point, it /loses copyright/, though they can still sell it with "extras", I guess.
Sure, there are problems with kiting costs and bookkeeping. But they already do the bookkeeping, so it's not a big burden. Producers would of course scream that they can't make money at it, but that's not the purpose of society, and if they don't find a doubling of money worthwhile, then they're not forced to risk it. -- I think that many new people would then be able to enter the biz if the big ones were limited. -- But the current system of unlimited profits -- and unlimited personal incomes -- is ruining the country. It's ridiculous to have a few big stars and big productions drive the rest of us into an effective police state over what is only /entertainment/.
[ link to this | view in chronology ]
Re: Indefinitely repeatable performances is what gives value to recordings...
I agree in part. Twice the amount spent is problematic. A life span should be more accurate but it should be at most of 5 years. Limiting to twice the money spent has several problems but one of them is a 10k budget movie that makes 500k. It's clear now that for the masses has a limit and that niche products can generate quite decent revenues.
Maybe along with the life span the copyrights should have the person of the middleman well described. I.e.: the profits from a said movie should be split, let's say, at most 30% to the middleman (ie: hollywood) and the other 70% should be distributed to the participants (except for dead weights aka: executive producers). I mean, copiright must NOT be held by MAFIAA.
But the current system of unlimited profits -- and unlimited personal incomes -- is ruining the country. It's ridiculous to have a few big stars and big productions drive the rest of us into an effective police state over what is only /entertainment/.
And that sir, was one wonderful line.
[ link to this | view in chronology ]
Private Membership !
I think the context of public vs private areas should use bathrooms as the example area from now on.
[ link to this | view in chronology ]
Um...
http://www.openaircinema.us/
These backyard movie screens clearly have only one purpose: copyright infringement. After all, the neighbors (and other invited guests who have not paid an appropriate license fee) might see!
[ link to this | view in chronology ]
Different time, different place?
Right? After all, it doesn't matter "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." It is, apparently, the same performance.
Movie theaters could save a ton!
[ link to this | view in chronology ]
So....
you can not impeach....
If the cable is too long....
It's just like stealing a song...
The length of the cord, according to some
has an impact on the law, which is just dumb
from here to there, or there to here
does it really matter how far or how near?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Isn't everyone part of the public?
Lets examine it. So, I buy a DVD, but, I am part of the "public", even in a private setting, so would that not constitute the store selling me the DVD as "Public display"?
I download a movie after purchasing it form Amazon or Roxio or some other service. Now, we have a few problems. I am on a "public" service, the internet, so aren't they distributing via public channels? I am a member of the public, so aren't they also encouraging public performance? When I watch it, since I am part of the public, doesn't that mean that they have now engaged in public performance? Especially someone like Netflix, who is not even giving me the digital copy, but is instead streaming (cord length).
I could keep going on (Movie theater, VCD, rentals, etc.), but I think my main point is this. At times, it seems like our expected behavior is that everyone goes theaters and gives them money to not watch the movie so they do not give public performances. Everyone buys the DVD but is not allowed to watch it because it is a public performance. Everyone buys the digital copy, but then does not download it because it would be a public performance on a public system. And last, everyone rents the movie but does not watch it because we are the public, and you are not allowed to give public performance.
So basically, they want every single person to give them money for every single step and not bother actually consuming what they paid for.
Well, I am wondering, does that mean I can make a stick figure movie, and because people need to pay me but are not actually allowed to view what they paid for in any area, they will never know how bad my stick figure theater is, therefore I will get rich simply for making it? Just seems like a series of logical steps based on everything I have picked up. Feel free to correct me if I am wrong.
[ link to this | view in chronology ]
Public performance
[ link to this | view in chronology ]