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Zediva Fights Back Against MPAA 112

Posted by Soulskill
from the alleged-mistreatment-of-electrons dept.
MoldySpore writes "When Zediva burst onto the streaming scene earlier this year, they managed to do something nobody else was doing. Navigating around the copyright law, they found a way to stream rental movies not currently available on other services, because they were still inside the DVD sales window, and filled a role not currently part of the competitions' services. The service grants a 'rental' of the physical movie to the user, who is then able to stream it over the internet, usually with the option to re-rent after being played. By having it be a rental service, they were able to avoid some of the legalese associated with streaming movies outside of that sales window. Needless to say the MPAA was not pleased. But instead of making nice with the MPAA, Zediva has decided to fight back in the form of expensive legal heavy-hitters from 'elite San Francisco law firm Durie Tangri,' which has forced the MPAA to hire their own team of expensive legal ninjas. Zediva argues what most technologically informed people would when looking at this service: that they are essentially a rental service who are renting physical media, and providing the DVD player and a very long cable to the renter's TV."
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Zediva Fights Back Against MPAA

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  • by elucido (870205) * on Friday May 13, 2011 @04:59PM (#36122646)

    The MPAA wants to control the entertainment sphere of the world. They don't want competition from newer more modern companies, so they use the law to guarantee no competition can exist. They don't want the "customer" to have control, they want it so they can maximize profits for themselves.

    They just don't care about us the consumer. And they hate the competition. So they win by using the law because they can't win in the market place.

    • Re: (Score:3, Insightful)

      by brit74 (831798)
      (Sigh) As much as I hate defending the MPAA because they do want to extend copyright as far as they can, it doesn't mean they're guilty of everything.

      The MPAA wants to control the entertainment sphere of the world.
      No, they're fighting to control the content they created. No need to exaggerate.

      They don't want competition from newer more modern companies, so they use the law to guarantee no competition can exist.
      No company wants competition to exist, but what's going on here has nothing to do with
      • by elucido (870205) *

        The RIAA hasn't created a damn thing. Artists create, RIAA pimps artists on a massive scale.
        They own the rights to the creations, but they don't create a damn thing.

      • by Eskarel (565631)

        The movie rental industry is based on a very simple arrangement actually.

        I agree to sell you a copy of a movie which I own(this is still legal for movies even if you can't do it for all media). As part of the terms of sale I agree to buy the movie back from you at a set price within a set period of time given certain constraints.

        The movie companies back in those days weren't quite as arrogant as they are today and decided if you can't beat em join em, so they sold movies to the rental places at extremely hi

      • by Khyber (864651)

        "No, they're fighting to control the content they created. No need to exaggerate. "

        This is why they have 'emergency funds' for those artists whose copyright they 'accidentally' infringe for nothing, then? Yea, I don't think so. Witness Canada's version, which recently got busted doing exactly that.

        "Anyone can create a movie production company."

        Assuming they have the money. You forget how hard Hollywood worked (and violated many patents while dong so) to become what they are today. They set a rather high bar

  • Good ol' MPAA (Score:4, Informative)

    by ackthpt (218170) on Friday May 13, 2011 @05:00PM (#36122652) Homepage Journal

    Someone sneaks around behind all their dirty little tricks and they don't like it.

    Comes with the territory, boys.

  • There Is No Cat... (Score:5, Informative)

    by NotSanguine (1917456) on Friday May 13, 2011 @05:04PM (#36122680) Journal
    You see, wire telegraph is a kind of a very, very long cat. You pull his tail in New York and his head is meowing in Los Angeles. Do you understand this? And radio operates exactly the same way: you send signals here, they receive them there. The only difference is that there is no cat.
    --Albert Einstein, when asked to describe radio.
  • Glad to hear they're fighting back. In my opinion, they have a good chance of winning, even taking into account existing precedence.

    ...Pardon the shameless plug, but I wrote up a good summary of the issues, existing case law, and how Zediva differs on my blog here:

    http://appleguru.org/blog/2011/04/05/zediva-movie-studios-and-copyright/ [appleguru.org]

    • by Anonymous Coward

      That's not a plug, it's blatant advertising aimed at drawing readers away from here, to your blog.

      If you wanted to add to the conversation, you would have summarized your blog here for all of us instead of just saying "hey go to my blog for my thoughts". Then at the end you could have said "To read the unsummarized text: blogURLhere". That's a plug.

      Sorry for the ARRRGness of my post...

      • Heh, karma is going to burn for this... Pardon me for not having the time to write and in depth summary of my summary (from my iPhone...). When you've actually read what I have to say feel free to come back and hate. Ps, my post did exactly what you suggested: I stated my opinion of this development (good for zediva for fighting back!), summarized my blog post ("a summary of the issues, existing case law, and how Zediva differs"), and provides a link to read the details. No one is forcing you to click the l

        • by Khyber (864651)

          "When you've actually read what I have to say feel free to come back and hate."

          No, we'll hate because you are detracting from the purpose of this site. Keep the fucking discussion here or get the fuck back inside your reality distortion field and stay quiet.

          You're exhibiting the same thieving mentality of Jobs. It isn't welcome here.

          Fuck yes I burned my moderation in this thread just to respond. People like you are a blight.

    • by fusiongyro (55524)

      Can you actually name a case in recent history in which some programmer managed to skirt a legal restriction by being clever, and actually got away with it? Because none come to mind for me.

      The legal system does not work like we think it does. It's not about logic. It's not about unambiguity. It does not work like programming. Our proof is just not the way legal reasoning works.

    • I, for one, don't mind your shameless plug as it is at least somewhat informative.

      I'm curious, however, as to one of your arguments:

      The consumer is the one pressing play. Therefore, the one âoeperformingâ the work is the end user, and not Zediva (in the Redd Horne case, the store clerks were pushing play). In Zedivaâ(TM)s case, the consumer is the one playing a movie that they have rented, on a player that they have rented, to a display in their own homes.

      If Zediva is renting out both the DV

      • From a copyright perspective does it matter who loaded the disc (Machine, human, Zediva employee, trained monkey or otherwise)? The law in question gives specific exclusive rights to copyright holders for public performances. If blockbuster wanted to rent you DVD players with the discs already in them I don't see any laws that would prevent it.

        Regarding your point about avoiding the "legal definition of streaming," they aren't. There are no laws preventing streaming media. The applicable copyright law is ag

        • by mattack2 (1165421)

          Oh, bummer.. I thought you did get special features. (I heard this discussed on the HDTV & Home Theatre podcast recently.)

          That would be a benefit to me, especially if they have the 'real' DVDs, and Netflix (voluntarily) often has the rental versions of DVDs with no extras.

      • by bhtooefr (649901)

        Alternately, manually load the DVDs into the players, no autoloading needed - if you want to watch a certain movie, you're rented the player that has that DVD in it.

  • Define "Streaming"? (Score:5, Interesting)

    by DigiShaman (671371) on Friday May 13, 2011 @05:09PM (#36122726) Homepage

    I'm not taking the MPAA side here. However...

    One could argue that it's streaming if you're transferring data over the wire from a location outside your legal ownership. For example, over a DVI cable would be ok because both the source and destination are usually found in one room. They're found in separate rooms for high-end setups however. Even between two homes that you own might be acceptable (two houses you own on one plot of land). But... the MPAA could argue that if the source is from another building and company rendering services not under your direct ownership, the data is being "Streamed".

    Steamed being defined as receiving sourced material from a non-tangable source not in your direct and immediate possession.

    • by gman003 (1693318) on Friday May 13, 2011 @05:31PM (#36122870)
      Or - bear with me for a moment - we could abolish the ridiculous concept that media is somehow different depending on how you access it (and should thus priced, released and controlled differently) and realize that it's the same legal object, whether it's played in a theater, bought on DVD, bought on pay-per-view, watched on broadcast TV, downloaded, or streamed.

      Seriously, when you think about it, the entire concept is ridiculous. The whole system is preposterous. Staggered release by region. Staggered release by medium. Street dates. Pre-screenings. No-resale clauses. It's all patently absurd.
      • Unfortunately (fortunately?) it is not the job of lawyers or judges to legislate. Their job is to interpret the existing law correctly.

        They sometimes (often) deviate from that into declaring new laws, but that is NOT their job, and we are better off when they dont.

        • They sometimes (often) deviate from that into declaring new laws, but that is NOT their job, and we are better off when they dont.

          You really should learn something about how the legal system works before opening your mouth. Case law is, and has been for roughly 1000 years (essentially since the Norman Conquest of England), a fundamental feature of our judicial system. In the absence of applicable statutes and case law judges extend existing statutes and case law to create new case law. Case law can be overridden by statute, and has some weird jurisdiction issues, but is otherwise binding law in any common law system (the US and the

          • IANAL, but AFAIK "case law" and "precedent" is supposed to simply be either A) interpreting and clarifying existing law, or B) abolishing existing law on reasons (ie, for constitutionality reasons).

            It is NOT (again, AFAIK, IIRC, IANAL) supposed to be about creating new law-- that is what we call legislation, and that is what we have legislators for. There is a reason we have 3 branches in our government, and it wasnt to consolidate 2 roles of the government into the Judicial branch.

      • by Darinbob (1142669)

        Yes some may sound absurd but it's legal because of copyright. The copyright owner controls the ability of others to make copies. That means that your local TV station can not just buy one copy of the DVD and then broadcast it that night to a thousand viewers.

        In that sense the manner of viewing is indeed vital. Each copy needs to be granted. Sometimes it's a blanket grant, such as allowing a broadcaster to broadcast after they pay a fee which is based upon the size of the expected viewing audience. Som

      • by iluvcapra (782887)

        Or - bear with me for a moment - we could abolish the ridiculous concept that media is somehow different depending on how you access it

        We could do that, but of course there are tremendous distinctions between the different modes of delivery (if it were "all the same" we wouldn't really have an argument, would we?). Treating them as "all the same" doesn't really empower consumers as much as it empowers middlemen producers and hardware device makers: upstarts like these Zediva people would like nothing more t

        • by Legion303 (97901)

          Call me a cold-hearted bastard, but I can't seem to summon up any sympathy for the poor, downtrodden movie industry on this one.

      • No it's not.

        Why should you be allowed to, essentially, distribute a copy of a work when you don't have the permission to do so? Lets say I buy a movie. Do I, rather, *should* I, have the right to stream it to my friend, paying or not? Lets say I did have the right to do that. Well, what about illegal downloading like torrents? Those would become legal too, as there's little difference between streaming something you own and sending a copy to someone else.

        It sounds like a straw man, but it isn't. The reality

        • by gman003 (1693318)
          I wasn't saying that "distributing without permission" should be legal. I was saying that MAFIAA needs to realize that they're only hurting themselves by insisting on spreading their content as thin as possible by restricting everything. They need to switch to a single, unified release - when a movie comes out, it comes out everywhere, in every way. That would reduce piracy (half the movies I've pirated was just because I didn't want to spend a fortune at the theater to watch it, but couldn't get it otherwi
        • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Friday May 13, 2011 @07:52PM (#36123768) Journal

          Why should you be allowed to, essentially, distribute a copy of a work when you don't have the permission to do so?

          Why not? Why should anyone need any permission to do that? We can borrow recordings from public libraries. We can invite our friends over to watch. Why shouldn't we be able to do the same thing over the Internet?

          we have to have some control over the media we create

          No, we don't.

          else the term "profit" will mean almost nothing.

          Of course I knew that's what you were getting at. There are ways to profit from artistic endeavor without copyright, without any control whatsoever over what people do with works of art. The way you talk, you'd think copyright is the only way anyone can make art without starving. Not so!

          And there's really no choice. We'll have to move to a different business model. Neither legal nor technical methods can enforce restrictions on the ability to make copies. Declaring that everyone may be a pirate, and suing us by the thousands, has been an abysmal failure. DRM is a stupid joke.

          You ought to be thankful the universe doesn't work the way the entertainment cartels evidently wish it to, for if it did, we'd all be much poorer.

          • by mattack2 (1165421)

            Why should anyone need any permission to do that? We can borrow recordings from public libraries.

            You can do that *because* of the First Sale doctrine. That is the (legal) permission being given.

          • Of course I knew that's what you were getting at. There are ways to profit from artistic endeavor without copyright, without any control whatsoever over what people do with works of art. The way you talk, you'd think copyright is the only way anyone can make art without starving. Not so!

            I'm tired of this.
            Prove your point! Make a company and start earning money with copyright free (copy left) art work, be it movies, music or other art.
            Go on ... show me that you make 10,000 artists earning their living via yo

            • I'm tired of it too. Tired of this accusation that we're just a bunch of freeloaders, and tired of these cheesy challenges of the sort you just made. If someone did what you say, would you really be convinced? I doubt it. Because it is already being done with software development, and you are overlooking it. As just one example, there's a company called Red Hat that is earning money with copyleft software. They employ quite a few software developers. There's also the Humble Indie Bundle. I bought th

              • As just one example, there's a company called Red Hat that is earning money with copyleft software.

                I knew you would come up with this ;D
                And if you would know what red hat is doing, you would know it does not support your point.
                They make money from someone elses work. Because someone else made it copy left. And exactly that would happen to every artist if there was no copyright.

                They all seemed to be hoping some rich idiot with more money than sense would come along and scoop up their precious painting or scu

        • by Thing 1 (178996)
          I think your signature has some issues with your post.
        • by mattack2 (1165421)

          What this company is doing is obviously infringement

          Why is this "obviously" infringement? I think they've taken a clever approach to the problem. They are literally renting you a DVD player *and* a DVD.. nobody else is using that player or DVD while you are watching it (and from previous discussions of it, I think you actually have a very long time to watch the movie).

          It is being "copied" when being streamed to you, but you could argue that the cable between your DVD player and TV is making a copy too.

          It

      • by Nyder (754090)

        .... It's all patently absurd.

        They own the patent on it?

        figures

      • You mean copyrightly absurd.
    • by Anonymous Coward

      Yes it is being streamed, no doubt about it. 'Streamed' as in transferred over a cable, or a set of wires, or wireless. But isn't that what a HDMI cable does? This is not broadcasting. It is the per-view rental of the content, exactly as a video store would do. Only the delivery method has changed.

      • If you re-read what I said, I've already covered that using DVI as an example. HDMI is pretty much DVI with the exception that it also passes audio too. My point being in an inverted manor would be this. Even if it was possible (which it's not), you could run a direct HDMI link from Zediva to your house and it might constitute as "Streaming". However, run that cable 100 miles between two homes you own, and it would not.

        Simple put, I'm making the point about location and ownership that defines whether or not

    • by Darinbob (1142669)

      "Streamed" an old word with a new meaning here. There is no legal definition of this "streaming" in this context. If there's some sort of contract Zediva signed in order to get the rights to rent the movies and that contract that forbids "streaming" then I would hope that the meaning of "streaming" is defined in the contract.

      Where the MPAA will have a firm legal ground is if Zediva purchased rights to rent one copy of a movie and then ended up "renting" to multiple customers simultaneously. Ie, if you go

      • It is. From people who have used the service : when you "rent" a movie from them, you see the output of an actual DVD player in a warehouse somewhere, connected via some type of standard output cable to a server that digitizes the stream and compresses and sends it to you. The player app allows you to send remote commands to this player just like pressing a remote control. You can't skip the commercials at the beginning or FBI warnings.

        Zediva is doing the best they can to provide their service in a way t

    • The people using this service "Own" the DVD player (renting it), they own (rented) the disk, and they own (rent) the wires delivering the picture to their tv. There is no difference between what they are doing and driving to the movie rental place (with a tv in your motor-home but no dvd player) and plugging their player into their wall plug then running the cable out the window to your tv (in the rv). At no time does the signal leave your (rented) property.
    • One could argue that it's streaming if you're transferring data over the wire from a location outside your legal ownership.

      You can play a rented DVD on a rented DVD player connected to a rented television in a rented apartment. Taken to the extreme it would be "streaming" for Amazon to transfer data to you in the form of a plastic disc, unless you want the government to start deciding which methods of wired (and wireless) communications count for the purposes of streaming. Given the wave/particle duali
  • by AEton (654737) on Friday May 13, 2011 @05:19PM (#36122810)

    Hey, guys, for a good time, have a look at On Command Video Corp. v. Columbia Pictures Industries, 777 F. Supp. 787 (N.D. Cal. 1991) [mit.edu].

    On Command was doing literally this exact thing, but 20 years ago and (1) with VCRs instead of DVD players; (2) with the VCRs at the hotel front desk and you in your hotel room, instead of with the DVD players in California and you anywhere on the Internet.

    Things did not work out well for On Command. However, the legal landscape has changed somewhat in more recent years -- a more relevant ruling might be the 2008 Cablevision DVR case (see discussion e.g. at http://arstechnica.com/business/news/2008/08/cablevision-wins-on-appeal-remote-dvr-lawful-after-all.ars [arstechnica.com].

    • by fermion (181285)
      Interesting read. One thing I noticed is that a key issue was the relationship between the viewer and hotel, which made it a transmission to the public, which requires an explicit license. I wonder if something that was set up like a co-op, with a buying, a stake, and a monthly fee would change this relation so transmission would be allowed. That would be like a neighborhood buying DVDs and them sharing them amongst themselves.

      At the basis is an attempt to minimize third party profit on movie products.

      • by BillX (307153)

        So basically, the entire issue lives or dies according to some small linguistic / legal hack?

        True story: A local artist / hackerspace group in my town has a significant contingent of folks who homebrew beer, and decided to throw an event where the folks who brewed would each bring some in to sample & share - the brewers would donate a batch, and the non-brewers who wanted to sample some would toss in a few bucks at the door to cover the venue and everything. Long story short, the lawyers told 'em they c

  • by lyinhart (1352173) on Friday May 13, 2011 @05:33PM (#36122890)
    Fools. If anything, the movie industry should welcome services like Zediva to buy DVDs in bulk since consumer sales of DVDs are down. Or at least compete by offering "official" streaming at lower prices.
    • by Sepodati (746220)

      If Zediva is indeed buying physical copies and controlling the rentals such that the amount out available for streaming matches their physical count, I don't see how they could be in violation. I didn't RTFA, obviously, and once lawyers are involved, all common sense is out the window, though...

      • by MoonBuggy (611105)

        Technically and logically speaking, they aren't in violation. Legally speaking, who knows.

    • Sigh, no. (Score:5, Interesting)

      by alexander_686 (957440) on Friday May 13, 2011 @05:47PM (#36122986)

      Netflix and Red Box have blown a hole in DVD sales. It used to be that people would spring ~$15 for a new release to build up their DVD Library. Instead of buying 2 DVD a month they can rent 10 to 30 instead. This is a seachange. Zediva should be able to get away with even fewer DVDs because their turnover is going to be much faster. They won't have to wait for people to mail their CDs back or drop it off. As soon as somebody is done watching they can roll it over to the next.

      Streaming, by the way, is not going to make up for lost DVD sales. The studies gets about 80 cents per steam vs a few dollars on a DVD.

      • by h4rr4r (612664)

        Either way sounds like too much money.

        Welcome to capitalism, charge what the market will bear or STFU.

      • by MoonBuggy (611105)

        Streaming, by the way, is not going to make up for lost DVD sales. The studies gets about 80 cents per steam vs a few dollars on a DVD.

        [Mythbusters]Well there's your problem![/Mythbusters]

        Seriously, there's no difference between renting a DVD and paying for time-limited stream access. If the prices are different, then the prices are wrong, simple as that.

        • Really? No difference? One can run on nearly all types of DVD hardware, requires a physical store, and lets renters walk around and browse (at least the old model did). Streaming and DVD rentals are two different markets with different demographics. Even though the end product is the same, there's a huge difference with the whole experience.
  • Home recording and non-commercial copying of video tapes is legal. The MPAA *has* to fight this, or they forfeit whatever tenuous claims they had against people sharing anything that Zediva has ever stocked.
    • by MoonBuggy (611105)

      How? The client computer isn't making a copy any more than your TV makes a copy of what the DVD player sends it. The 'really long HDMI cable' argument is extremely apt.

  • by Anonymous Coward on Friday May 13, 2011 @05:50PM (#36123010)

    Who'd heard of Zediva before this. So, what's cost saving by getting the word out by being sued by MPAA rather than the traditional advertising approach?

    • by rahvin112 (446269)

      I can almost guarantee that they could run a 1st rate national campaign of prime time commercials where a commercial runs every commercial break for more than a year and still not get close to what this case is going to cost in legal fees. They've hired probably the most expensive IP firm in the US to defend a case that the MPAA is probably likely to appeal all the way to the supreme court if they lose. I wouldn't be surprised if legal fees top 100 million if it goes all the way to the supreme court.

      On the

    • Who'd heard of Zediva before this.

      People that read the NY Times, for example.

      http://www.nytimes.com/2011/03/17/technology/personaltech/17pogue.html [nytimes.com]

  • Good Team (Score:5, Interesting)

    by speedplane (552872) on Friday May 13, 2011 @06:19PM (#36123236) Homepage
    Durie Tangri has Mark Lemley on board, probably the most renowned IP scholar currently practicing. He helped put together the google books settlement. This case will definitely be something to watch.
  • [http://www.imdb.com/title/tt0041267/] "... Dr. Ordway (Warner Baxter) attempts to solve a murder in a highly interesting place: a sort of call-in jukebox where bar customers may request a particular record to be played ..." Wow, I guess this concept has precedent. Anyone old enough to remember those services actually existing? Muzak on demand.
    • by mattack2 (1165421)

      interesting.. and one of the reviews of the movie talks about a similar service being used in a previous Doris Day movie.

  • Subject line says it all. Rental is the way to go. And everyone will go that way soon. Great loophole.

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