You missed the second half of (2) -- it applies to any place specified in (1) or to the public in general "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 its services to customers with no restriction on who can be a customer, Zediva courted the public. That's where the statute gets them.
CrushU basically nailed it; laws are trying to accomplish diametrically opposed goals by being specific enough to not cast an unnecessarily wide net, but general enough to adapt to future developments in society and prevent loopholes from popping up between the specifications. To try and capture all the niceties of the law in a statute would be an impossible task, so the legislature gives the courts a blueprint, and the courts try to apply it as best they can. To paraphrase Churchill, it's the worst system out there except for all the others.
Indeed, they leased the copy, and were free to provide said copy [the physical DVD] to the end-user. What they did, however, is stream the DVD from its remote location to the end user, which prior case law has stated constitutes a performance. Everyone in this thread is right when they say that technologically, there is a great deal of equivalence between watching a movie through Zediva and watching it through your own entertainment console. But the courts want to preserve the distinction between a performance and a distribution; if a business wants to take advantage of the first sale doctrine, courts don't want them to then piggyback Cablevision on it to nullify a copyright owner's ability to control the public performance of a work as well -- at least, not unless the scenario fits Cablevision to a T. This court held it did not, and I don't foresee them changing their minds [especially in light of the aforementioned policy concerns]. I'm not saying this is "right," per se -- this whole area of the law is messy and has taken very tenuous evolutionary steps over the years. Cablevision is just the most recent manifestation of that, and we'll be trying to make all the other pieces of the puzzle fit with it for quite a while.
I'm not aware that all Zediva did was transcode, nor did I say that alone would be a performance. You say yourself that they transmitted the signal to the end user. That transmission, assuming it resulted in a ephemeral viewing of the work in question, sounds like a performance to me. Additionally, the transmissions are merely secondary to the use of the source DVDs, which are not confined to a single viewer's use. In Cablevision, there was no public performance because each source file was unique and its creation covered by fair use [ala the Betamax case]. Here, there is no precedent for a fair use creation of the transcoded, streamable version of the movie [because it was not created from a TV broadcast]. Each DVD is used multiple times to create those streamable versions and sent to multiple sequential users. You can certainly try and make an argument that this form of "one user, one copy" should also be allowed, but it does not fit neatly into the Cablevision facts without some alteration.
I'm saying that a distribution requires conveyance of a work in fixed form. If Zediva let you download a work to your hard drive [like a file-sharing program], it would be a distribution (followed by a performance when you played the file). But because Zediva merely streams the movie in real time, and does not replicate the file on your computer in any sufficiently fixed form (merely a partial buffer copy), it is a performance alone. 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.
A copy is essentially the work in sufficiently fixed form. This includes any form in which the work may be perceived with the aid of a machine, device, or other process. Therefore, an AVI file is as much a copy of a movie as the physical movie reel. The distribution of the work is the exchanging of that work in its fixed form, whether by physical hand-off or downloading to a hard drive. The performance of the work, conversely, is the rendering perceptible of a work. If you download a movie to your hard drive, it has been distributed to you. If you open that file, it has then been performed as well. If you stream a movie, you're performing it, but if the movie is not downloaded to your hard drive in a fixed form [and merely plays in fleeting, ephemeral form on your screen, each bit of data lost after it's shown], it is not being distributed. That is the distinction that the law has drawn.
You can frame it technically if you'd like, that won't change how it's framed legally. Distribution is the conveyance of the file in a sufficiently fixed form. Performance is the conveyance of the file in a fleeting, ephemeral display. If Zediva had downloaded the full movie file to the user's hard drive, it would be distribution. Merely streaming it through a buffer, without sufficient fixation of the full file on the viewer's hard drive, is a performance. Certainly, the customer may have been involved in rendering a performance, but that does not change the fact that the law states so did Zediva. I'm not "defending" anything -- I'm simply explaining what the state of the law is. You may find it suspect [given your "technical framing" of the issue], but that does not change the outcome.
To be fair, the difference in your example is that your personal hook-up is available to you and only you, making it a private performance. Zediva's hook-up is available to any member of the public, making it a public performance in the eyes of the law [regardless of the fact that the actual performances are ultimately to private audiences].
It really is sad when a body of law is so ill-equipped for the modern age that its continued viability rests on most of the daily violations never being prosecuted.
Pretty sure individual positions are not protectable by copyright, but a sufficiently creative sequence of positions might be under the "selection and arrangement" test. I think that's how certain famous yoga instructors have gained copyright for their workout routines, actually. [Choreography is one of the categories of works protectable under the Copyright Act, and I would love to see a porn company try and take a claim like that to court.]
You're quite welcome; I wish I had time to engage in these sorts of discussions more often, but the law student ramble is a restless one. I'm always reading, though!
Super glad I could do that! I love Techdirt and Mike's analysis of these issues, especially when it comes from an economic perspective [which is woefully absent from most law students' education, I think]; I don't always agree with it, but I definitely see both sides of the coin and think it's really important to have all voices in the debate heard. That's why I strive to explain the legal issues as impartially as possible, if only so those outside the profession have a better idea of why courts are acting in a certain way.
Haha, you probably wouldn't have anything to worry about even if SStB wasn't freed of copyright; "user" in that construction more accurately means point of receipt, and you're not publicly performing the work yourself unless you're watching it in a place open to the public or the 25 people consists of those outside the typical friends-and-family circle [i.e. strangers plucked off the street].
If new disc images were created for each performance, that would probably be a violation of the reproduction right of copyright. The Cablevision court stated that the reproduction right is not violated unless the reproduction is "fixed" for more than a transient period of time; the "buffer copy" in a stream [like a remote DVR], existing for only a few seconds at a time, doesn't count, so that probably covered Zediva insofar as the digital conversion was concerned. But the rental of the DVD only covered distribution [the ability to possess and utilize the DVD], not public performance [streaming the then-rented DVD]. Mike's right when he says the courts have essentially ignored the technological equivalence at issue and are looking more at the origination of the performance. If you put the DVD in yourself and view it locally, no problem. If you authorize a fair use reproduction in the cloud and stream it back to yourself [i.e. remote DVRs in Cablevision], no problem. Problem is, Zediva was neither in the court's view: the DVDs and players were in Zediva's physical possession and they did not adhere to the combo of fair use reproduction and unique-copy playback that made Cablevision kosher. It's definitely a lot of work to meet the Cablevision standard, and in many ways a redundant pain in the ass for legitimate offerings like Amazon's cloud music service, but that's what you get with a field of law as strained and convoluted as copyright.
No, DVD rentals by themselves are distributions, not performances. Distribution is conveying a copy of a work, like a DVD or a digital file. Performance is actually rendering that copy visually perceptible by, for example, projecting it on a wall or streaming it on a monitor. It's not the renting that's a problem, it's that instead of sending you the copy to play yourself, they're playing it for you and retaining possession of the copy [even if they say it's been rented and is legally yours].
I'm actually not sure how you're applying that second excerpt, because publication is not an issue in this case [in fact, publication hasn't really that important to copyright law since 1978, other than for certain things like deposit and registration]. Zediva can stress that it is renting the DVD and player [much like Redd Horne could have, as it rented the tape to the customer before placing it in the VHS to stream], but aren't they still in physical control of the DVD and player on their premises, the customer's ability to interact with the device from afar not withstanding?
Except not. Distribution involves making works available to members of the public. DVD players are not members of the public, so they cannot be recipients of a distribution. You seem to be using the term in a colloquial sense rather than in the specific context of copyright. 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.
3D glasses don't actually create or alter the performance as it's rendered, only your personal physical perception. As for your second example, I think I actually recall a hypothetical like that in my casebook when I took copyright law, but it was one of those useless hypotheticals that doesn't actually provide an answer. I'm inclined to say no, but thanks to the ridiculous complexities of the law, I'd have to give it some thought first.
Also moot, because distribution is not what dinged Zediva in this case, it's the subsequent digital transmission of the DVD contents that constituted a performance.
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