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.
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.
You probably could upload your own copy and have them stream it back to you; that's the essence of the "one user, one copy" distinction that Cablevision created, and in turn what cloud services like Amazon and Google's are relying on. As for your second example, your legal possession of the disc does not necessarily create a right for them to create a digital copy to stream to you. You'd probably have to create the copy yourself and stream it yourself, ala Cablevision.
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.
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.
Haha. Trust me, media companies are no fans of the first sale doctrine. Look up Vernor v. AutoDesk to see how they are trying to route around it nowadays with licensing restrictions. I wouldn't be surprised if the next big challenge to the FSD tries to expand Vernor's licensing mechanism into media other than software.
That gets into a whole 'nother nuanced area of copyright law [reproductions, retention of back-up copies when you divest the main copy, etc.], which I doubt Zediva would come out on top from, but I actually want to back up, because I think gave an incomplete explanation of what happened in Cablevision. IIRC [I haven't read the case in a while], there was three portions of the remote DVR system that were at issue: the buffer copies of programs during the recording process, the actual copies that then resided on the remote DVR, and the transmission to the Cablevision customer from the DVR. The buffer copies were considered too transient to be "fixed" under copyright law [meaning no violation of the reproduction by Cablevision occurred], the actual copies residing on the DVRs were fair use in the spirit of the Sony Betamax case [so again, no violation of the reproduction right], and because each customer created their own unique recordings only viewable by themselves, the streams were not considered public [so no violation of the public performance right]. Altogether, a very, very fact-specific set-up that Zediva will have a hard time analogizing itself to from a technical standpoint.
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.
No problem -- always glad to engage on this topic.
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.
Unfortunately, that wouldn't have made a difference. Whether you bought or rented the DVD from Zediva, that would only give you the right to retain and utilize a single physical copy of the media. You'd need the DVD in your hands. As soon as the DVD is converted to a digital signal and then streamed to you, however, it's being reproduced and performed by Zediva. Their only hope was to equate themselves to the Cablevision defendant, who was streaming DVR'd copies of programs and got a fair use defense, but the Cablevision decision hinged on each customer streaming a unique copy of the programs from a personal remote DVR. Here, Zediva was utilizing single copies of the works [DVDs] between multiple subsequent customers. That killed the analogousness.
To the courts, if you welcome any member of the public as a customer, you're open to the public, and you probably need licenses to then perform the works for them. Netflix's streaming service is only legal because they have licenses with the content owners to perform those works. Their rental service is legal because of the first sale doctrine. Zediva can rent all the DVDs by mail that they want, same as Netflix, because that business model falls under an exception to copyright law [the aforementioned first sale doctrine]. What they tried to do here is combine the first sale doctrine [giving them use of the physical DVDs] and the Cablevision decision [which provided a fair use exception for remote streaming] to essentially yield a first sale doctrine for public performances. The court here is nipping that in the bud by limiting the Cablevision decision to its facts, as I mentioned in my initial post.
The legal difference is that Netflix DVDs involve the distribution of physical copies of the media, which is allowed under the first sale doctrine of copyright law. The streaming of the same programs, however, involves the public performance right, to which there is no first sale doctrine exemption.
Yep. The construction of copyright law doesn't always hinge on the physical particularities of the conveyance. IIRC, the Redd Horne case mentioned by the court here had to do with a Blockbuster type store that allowed customers not only to rent movies, but also rent rooms within the store to then watch the movies in. The court held those were public performances, even though the viewing rooms were private and the customers weren't doing anything they couldn't do in their own homes. The fact that the rooms were open to the general public and on the premises of the store meant the store was, in the eyes of the law, performing the works to the public. From a common sense viewpoint, arguably quite stupid. But that's how the law has been constructed to prevent the individual rights of copyright law from bleeding together too much.
No. Resale of a physical copy of a copyrighted work is allowed under 17 USC 109, otherwise known as the first sale doctrine. Once a copy is sold with authorization of the copyright owner, the purchaser may legally resell or lease the copy. That has to do with the right of distribution under copyright law. Here, we're talking about public performances, which are a different right altogether. That's why Netflix can rent all the DVDs it wants to by mail order [physical distribution], but needs licenses to stream the same programs online [public performance]. There's no first sale doctrine for performances, only for distributions.
Basically, the Cablevision decision is being narrowly construed to mean that the fair use/VHS analogy only applies when it's one copy of a program to one user. No two users ever touched the same DVR recording of a TV program in Cablevision. Here, the same DVD was used multiple times for multiple users. That no two users could utilize one DVD simultaneously is not enough to get around how copyright jurisprudence has defined a public performance in this context. It's unfortunately one of those things that kind of makes sense in pure legalese once you've studied it enough, but still runs afoul of much common sense when you step back. But then again, copyright law isn't about common sense nowadays; it's about preserving markets, and they couldn't let Zediva's contortionist argument break the lines they've drawn between distribution rights [first sale doctrine] and performance rights.
Ah yes, I see Fox is applying the standard trademark test of "moron in a hurry to buy nonexistent offshoot merchandise from non-traditional retail outlets while saddled with the cognitive inability to discern the first letter in a brand name or anything other than what's left of said brand name."
Also ban shooting ranges, paintball, and laser tag for starters. Eventually, we'll ban enough things to theoretically prevent even a single unhinged individual from ever committing an unpredictable atrocity ever again. Victory criteria: Established. Let's get to it!
It -can- go to a jury, but judges often deal with copyright infringement cases on motions to dismiss or through summary judgment to save everyone time, and if the verdict is particularly obvious, attorney fees and costs can be awarded under Section 505 of the Copyright Act. This seems like an excellent case to make such an award if the prerequisites for it are met.
I'm always surprised when music from the circles I traffic in make it to Techdirt, but happily so. Casey is a musical genius and ridiculously prolific. His newest release, The Color Spectrum, consists of nine different EPs released simultaneously, each one corresponding with a specific mood or musical tone. The deluxe version of the set is $80, on nine different color-coded vinyl discs in a snazzy box set. And I snatched one up immediately. Talk about RtB, right? [It also helps that the songs are amazing. I think I replayed the last song of the release four or five times when I first heard it.]
Exactly. It's all about expectations. If I walk into a restaurant, supermarket, or any obviously-licensed business, then yes, I expect them to comply with certain standards. But when I buy a cup of lemonade from a 12-year-old's collapsible table, I know what I'm getting myself into. At this rate, I'm waiting for the government to start regulating Halloween so only licensed households can dispense candy.
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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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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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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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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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