Without doing any additional research on the matter, I assume it's because we extend copyright protection to foreign works as a result of our adherence to the Berne Convention and TRIPS. So just because a work wasn't created under our Title doesn't necessarily mean it lacks copyright protection under the same.
The way the copyright holders see it, the music is added value to the business, value created through use of their copyrighted works. They would rather be compensated for that use than forego license fees and hope the "advertising" somehow makes up for it. Like it or not, public performances are part and parcel of the copyright bundle; the fact that businesses continue to play copyrighted music when they don't have licenses [triggering BMI/ASCAP action] shows an implicit recognition that the real value of the performance is to the business rather than the artists they're "advertising" for. Like you said, the businesses could easily find other music to play, and they're welcome to do that. But if they want to play in the copyright owner's yard, they need to abide by the owner's rules.
As a litigation greenhorn, I'm always a little nervous to insert language in my briefs that goes beyond basic persuasive technique, even when it's just my supervisor at the firm law suggesting certain colorful turns-of-phrase. But damned if filings like this don't make me want to try and flex my wit a bit more in the pleadings.
Actually, I think my sarcasm was too subtle. I was trying to mock the attitude that copyright is always the most important thing about a work. Probably should have fleshed that out a little more, I can see how it might be read dickishly. My bad.
There's no distribution unless he gave out copies. He definitely performed it for the faculty members; the question would be if that performance was a "public" one under the law. But that's only an issue if the school doesn't own the copyright to the tape. If they do, they can perform the tape however they wish -- you know, aside from the fact that it's probably child porn. But that's obviously a less important issue than the copyright one.
I'm done responding to this thread after this comment, because you've made this dialogue incredibly unpleasant with your snark, misreading of my statements/intents, and hostile assessments of my personal intellectual character. I have not offered any "original" interpretations of the technology at issue in this case. I have been offering technological interpretations that THE COURTS have been using. Maybe they're completely incorrect according to a technologist such as yourself, and I welcome you to somehow correct the judges. Until you can do that, as a law student, I'm forced to labor under the interpretations that the courts have adopted.
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.
It's a public performance on Zediva's part if they offer their services to members of the public, even if those customers' viewings are done in private. Or at least, that's how copyright law is currently structured. You can see my short explanation of the multiple "performances" involved with any given broadcast here.
Re: DVD in the privacy of your own home a "public performance?
Not exactly. With any given broadcast of a work, there are multiple "performances" involved under copyright. The broadcaster "performs" it by sending out the signal. Secondary transmitters who bounce the broadcast around also "perform" it. And the recipient machine "performs" the work to whoever is around it. In this case, there are at least two performances: Zediva's in sending the movie and the recipient customer in playing it. The recipient customer's performance, if in his own home, is a private one and non-infringing. But Zediva's performances, by merit of being offered to any member of the public at large, are considered public performances -- even if all the recipients are viewing it in private. That's where I think lay observers of this case are confused about what the court has done.
Thanks for the kudos -- I'm glad I could help explain [or at least try to help explain] how the courts have handled this area of copyright law up until now. People taking my explanations as supporting said handling (which I by no means am) have made the effort a little exhausting, but I'm hoping it at least helps shed a little light on why this court's ruling is not as aberrant as some seem to think it is.
That's not what I said or meant, but I'm happy to reexplain: When you buy and watch a DVD, you are performing it. This is not a problem so long as you are not PUBLICLY performing it [which has set definitions]. When you give me the DVD, you are distributing. This is not a problem due to the first sale doctrine, which allows for the divesting of a legally purchased copy of a work. When I watch it, I don't need to pay for public performance rights unless I'm, well, publicly performing it [which, again, has set definitions].
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.
It's not just the judge in this case who's made that interpretation [which is not quite as broad as you've intimated], but a good chunk of the case law leading up to it. I'm not advocating that this is a good or bad interpretation of what constitutes "the public" -- I'm just saying that's what the courts have done for a while now, so the judge in this case is not totally off the rails.
Cablevision allowed users to make real-time copies of publicly offered TV broadcasts they already had the ability to view [a time-shifting activity in line with SCOTUS-validated fair use], each copy unique to the broadcast signal the customer was allowed to receive. Zediva did not create copies of broadcasts, but private property DVDs that were used repeatedly. The split between camps in this argument is whether or not Zediva's creation of streaming copies from the DVDs is equivalent to Cablevision's streaming copies from the broadcasts, and there's an argument to be made that it is, but that argument does require an expansion of Cablevision rather than a mere adherence to its facts.
[1/2] Electronic downloads are considered fixed under copyright law. Electronic streams are not. I really don't know how to make that any simpler for you. If the file sits on your hard drive rather than disappearing after a small period of time in a buffer, it's a fixed copy. [3] There -is- a legal difference between streaming and distributing. Your insistence otherwise carries no weight. If Zediva streams the video, it's a public performance. If they merely send the file without any simultaneous playback, it's a distribution. If they send a transmission that both downloads and simultaneously plays, it's both. 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. [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]. Copyright law is complicated. It would reflect better on you if you didn't automatically accuse me of lying just because a point is nuanced. [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.
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.
Glad to have such a discussion. Honestly, I agree with the prevailing Techdirt community sentiment in the overwhelming majority of news items, so it's a little disheartening to see some users personally attacking me not for trollish behavior or invective [which I've tried very hard to avoid], but simply for trying to explain the existing law to those confused by the court's arguable logical lapses.
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.
Pardon, I misspoke re: uploading. That doesn't change anything else about what I said, however. Additionally, you're incorrect about the performance: Zediva is the one publicly performing to the public by transmitting the video to its customers (members of the public) -- this analysis is built directly into the copyright statutes. The customer, conversely, only publicly performs the video if he allows the public to watch the transmission [whether in person or by bouncing the transmission elsewhere].
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.
I'm just going to quickly knock all your points down.
[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.
Oh, don't get me wrong, the law is totally messed up in the level of detail and minutia it requires one pay attention to. I'll see if I can quickly walk through it, though. [I have to be up for a law conference in five hours; kinda regretting I signed up at the moment, hah.]
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.
But it isn't. If you read the On Command case that Mike linked to in his original post, you'll see that it involved a hotel's movie watching system creating unauthorized transmissions even though the viewer was in control of the device that did so [through the hotel room's TV remote]. The hotel still possessed the instrumentality that created the transmission, regardless of who triggered its use. Mike calls On Command a terribly decided case, and it may well be. But that doesn't change the fact that it's the precedent the court has to work with.
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On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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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.
On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
Re: WTF? Judge should be dis-barred
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Re: DVD in the privacy of your own home a "public performance?
On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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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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On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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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.
On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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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.
On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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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.
On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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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.
On the post: Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing
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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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