Am I really “the public”?

This post is a collaborative work by David Hansen and Kevin Smith.

One of the consistent themes in this space has been the increasingly poor fit between the copyright law as it stands and new technological options for communication that seem to be developing so quickly.  While it is not directly related to scholarly communications, a recent court case about remote DVD players serves as a nice illustration of the tensions that arise when we tried to pour the new wine of technology into the old wineskin of our 1976 copyright act.

As explained by, the system works as follows:

The company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the remote control. Unlike the other streaming movie services, Zediva doesn’t turn a movie into a file on its servers that it can serve to as many users as care to see it at once. Instead, Zediva’s servers have DVD drives and actual DVDs. So when you rent a movie, that disc goes out of circulation until you release it back to the company, just like in one of those increasingly rare real-world video stores. And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.

One article calls Zediva a business relying on a “loophole.” But these “loopholes” are key to figuring out how copyright law applies in the digital age, and whether we will allow terminology routed in the mid-20th century to restrain innovation in the 21st. The judge presiding over the Zediva case viewed its conduct as outside the law, and ordered the service to halt operations. Central to the his order forcing Zediva’s to temporarily halt operations was his holding that the service likely “transmits” the DVD content to “the public,” thus violating the rights holders’ exclusive right to control public performances of the work (17 U.S.C. § 106(5)).

Copyright law defines the public performance right as exclusive control over either performance or display of a work to a group outside a normal circle of family or social acquaintances, and “to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, 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.” The terms “transmit” and “the public” are italicized because it is the definition of these two terms that determines both the case and the way copyright law responds to new cloud-based, personalized services like Zediva.

First, what does “transmit” mean? The copyright statute states that “to ‘transmit’ a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” The judge in the Zediva case concluded that the service “clearly transmits plaintiffs copyrighted works” because the service “communicates” images and sounds beyond the place from which they are sent. But this raises the question—who communicates to whom? The Zediva judge held that “the fact that Zediva’s customers initiate the transmission by turning on their computers and choosing which of Plaintiff’’s copyrighted works they wish to view is immaterial.”  Transmission, under this theory, is omnipresent. While this construction is plausible based on the bare definition, it leads to absurd results. Can I really “transmit” or “communicate” with myself? Those rather existential questions aside, under this view every personal act to receive copyrighted works that are stored in a remote location is therefore a “transmission.” Of course, even under this expansive definition of “transmission,” there is still no infringement unless those “transmissions” are “to the public.”

So this raises the question, what does “the public” mean?   There is no definition of “the public” in the act, but it does specific that “the public” need not receive the transmission “at the same place . . . [or] at the same time.”  But can a transmission really be public if it is initiated and received by the same person?  The Zediva judge interprets it this way, based on the relationship between Zediva as a corporate entity and its users as “the public at large.”  But it is not at all clear that this is the sense that “the public” should have when interpreting the copyright act, where public is intentionally contrasted with “private.”

As with the judge’s treatment of “transmission,” this approach to “the public” leads to absurd results.  I am a user of Dropbox, which is a commercial service.  If I save a copyrighted article, of which I have made an authorized copy, to my Dropbox folder, then download it to my iPad (as I often do), have I really transmitted that article to the public?  The judge does try to distinguish personal copies from those retained by the Zediva service, but his use of “the public” does not seem to provide any principled ground for this distinction.

Of course it is possible that the Zediva customer will have thrown open his doors and invited the masses to see the rented video stream, but that is just as possible if the DVD of the copyright work is on site as well.  Does the mere fact of transmission make that risk any greater?  If not, how do we justify restricting the transmitted performance more than the “physical” one?  As this TechDirt column suggests, this approach seems to mean that copyright compliance depends on the length of the cable between the DVD player and the recipient’s TV.

This whole case serves as a reminder of how important it is for us to examine carefully those words in the law that seem obvious, vague or even unimportant.  These “loopholes” actually are central to figuring out how the law will accommodate new technologies and where, potentially, the law itself must change.