This post is a collaborative work by David Hansen and Kevin Smith.<\/p>\n
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.\u00a0 While it is not directly related to scholarly<\/em> communications, a recent court case<\/a> 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.<\/p>\n As explained by Wired.com<\/a>, the system works as follows:<\/p>\n 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\u2019t 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\u2019s 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\u2019t 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.<\/p><\/blockquote>\n One article<\/a> calls Zediva a business relying on a \u201cloophole.\u201d But these \u201cloopholes\u201d are key to figuring out how copyright law applies in the digital age, and whether we will allow terminology routed in the mid-20th<\/sup> century to restrain innovation in the 21st<\/sup>. 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\u2019s to temporarily halt operations was his holding that the service likely \u201ctransmits\u201d the DVD content to \u201cthe public,\u201d thus violating the rights holders\u2019 exclusive right to control public performances of the work (17 U.S.C. \u00a7 106(5)<\/a>).<\/p>\n 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 \u201cto transmit<\/em> or otherwise communicate a performance or display of the work . . . to the public<\/em>, 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.\u201d The terms \u201ctransmit\u201d and \u201cthe public\u201d 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.<\/p>\n First, what does \u201ctransmit\u201d mean? The copyright statute states that \u201cto \u2018transmit\u2019 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.\u201d The judge in the Zediva case concluded that the service \u201cclearly transmits plaintiffs copyrighted works\u201d because the service \u201ccommunicates\u201d images and sounds beyond the place from which they are sent. But this raises the question\u2014who communicates to whom? The Zediva judge held that \u201cthe fact that Zediva\u2019s customers initiate the transmission by turning on their computers and choosing which of Plaintiff\u2019’s copyrighted works they wish to view is immaterial.\u201d\u00a0 Transmission, under this theory, is omnipresent. While this construction is plausible based on the bare definition, it leads to absurd results. Can I really \u201ctransmit\u201d or \u201ccommunicate\u201d 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 \u201ctransmission.\u201d Of course, even under this expansive definition of \u201ctransmission,\u201d there is still no infringement unless those \u201ctransmissions\u201d are \u201cto the public.\u201d<\/p>\n So this raises the question, what does \u201cthe public\u201d mean? \u00a0 There is no definition of \u201cthe public\u201d in the act, but it does specific that \u201cthe public\u201d need not receive the transmission \u201cat the same place . . . [or] at the same time.\u201d\u00a0 But can a transmission really be public if it is initiated and received by the same person?\u00a0 The Zediva judge interprets it this way, based on the relationship between Zediva as a corporate entity and its users as \u201cthe public at large.\u201d\u00a0 But it is not at all clear that this is the sense that \u201cthe public\u201d should have when interpreting the copyright act, where public is intentionally contrasted with \u201cprivate.\u201d<\/p>\n As with the judge\u2019s treatment of \u201ctransmission,\u201d this approach to \u201cthe public\u201d leads to absurd results.\u00a0 I am a user of Dropbox, which is a commercial service.\u00a0 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?\u00a0 The judge does try to distinguish personal copies from those retained by the Zediva service, but his use of \u201cthe public\u201d does not seem to provide any principled ground for this distinction.<\/p>\n 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.\u00a0 Does the mere fact of transmission make that risk any greater?\u00a0 If not, how do we justify restricting the transmitted performance more than the \u201cphysical\u201d one?\u00a0 As this TechDirt column<\/a> suggests, this approach seems to mean that copyright compliance depends on the length of the cable between the DVD player and the recipient\u2019s TV.<\/p>\n 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.\u00a0 These \u201cloopholes\u201d actually are central to figuring out how the law will accommodate new technologies and where, potentially, the law itself must change.<\/p>\n","protected":false},"excerpt":{"rendered":" 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.\u00a0 While it is not directly related to scholarly communications, … Continue reading Am I really “the public”?<\/span>