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.
Filed Under: copyright, movies, public performance
Companies: mpaa, zediva
