Working around the rules to give you movies on demand

Please note that this post is from 2011. Evaluate with care and in light of later events.

David Pogue writes about a new startup that’s trying to work around the limitations media companies have placed on movie providers like Netflix and Redbox:

At its California data center, Zediva has set up hundreds of DVD players. They’re automated, jukebox-style. You’re not just renting a movie; you’re actually taking control of the player that contains the movie you want. The DVD is simply sending you the audio and video signals, as if it were connected to your home with a really, really long cable.

via A Clever End Run Around the Movie-Streaming Gremlins – NYTimes.com.

Zediva seems pretty sure all this is OK under copyright law (“We’re confident that the law allows you to watch a DVD that you’ve rented,” said a company representative), but I thought I’d look a little deeper into the law. After all, the plan seems remarkably similar to an attempt by a hotel to do something similar for use of its guests. In On Command Video Corp. v. Columbia Pictures, 777 F. Supp. 787 (Dist. Court, ND California 1991), a federal court found that using a system of VCRs to play movies for guests violates copyright as a “public performance.” The hotel room itself is not a “public place,” but the transmission is to the public–and therefore infringing under 17 U.S.C. § 101.

On the other hand, in Columbia Pictures Industries, Inc. v. Professional Real Estate Inv., Inc., 866 F. 2d 278 (Court of Appeals, 9th Circuit 1989), the Court of Appeals held that renting videotapes in a hotel to guests to watch in their rooms is not a violation of copyright.

Similar to On Command, in Columbia Pictures Industries v. Redd Horne, 749 F. 2d 154 (Court of Appeals, 3rd Circuit 1984), the 3rd Circuit held that showing videotapes played on centrally located VCRs to patrons in private booths was a “public performance” because the booths were generally open to the public and was thus also infringing under 17 U.S.C. § 101.

Zediva’s system sends materials to private homes, not to a “public place.” This likely gets it out of the Redd Horne fact pattern. Nonetheless, Zediva does transmit to the public. Unfortunately, this does make it sound rather like On Command, so I would be very interested to hear details as to how Zediva’s situation is distinguishable, or why they should not fall under the same logic used in On Command.

Related articles

• Zediva’s Movie Rentals Are 50% Cheaper Than iTunes (techland.time.com)
• Crazy Zediva exploits copyright loophole to stream movies you can’t get online elsewhere (news.cnet.com)
• Is Zediva’s New-Release Movie Streaming Service Legal? (wired.com)