Disney Fixes Its Sketchy DVD Rental License, Wins Injunction Against Redbox Over Digital Downloads

from the copyright-as-blocking-innovation dept

Earlier this year we wrote about Disney's silly lawsuit against Redbox. If you don't recall, Redbox, whose main business was renting DVDs out of kiosks started also offering digital download codes that could be purchased at their kiosks. What Redbox did, was it would buy Disney "combo packs" (that came with both a DVD and a download code) and would offer up just the slip of paper with the code out of its kiosks. This seems like perfectly reasonable first sale rights. A legitimate code was purchased, and then resold.

When we wrote about the case back in February, it involved the court smacking down Disney, and even saying that the company was engaged in "copyright misuse" in overclaiming what copyright allowed the company to do. Later in that ruling, the court also rejected Disney's claim that Redbox was in breach of a contract by saying that the text Disney prints on the box (at the time: "codes are not for sale or transfer") was not actually a contract. Of course, as we noted at the time, the court's language made it clear that slightly different language could fix this. From the ruling:

The phrase “Codes are not for sale or transfer” cannot constitute a shrink wrap contract because, like the box at issue in Norcia, Disney’s Combo Pack box makes no suggestion that opening the box constitutes acceptance of any further license restrictions.... Although Disney seeks to analogize its Combo Pack packaging and language to the packaging and terms in Lexmark, the comparison is inapt. The thorough boxtop license language in Lexmark not only provided consumers with specific notice of the existence of a license and explicitly stated that opening the package would constitute acceptance, but also set forth the full terms of the agreement, including the nature of the consideration provided, and described a post-purchase mechanism for rejecting the license. Here, in contrast, Disney relies solely upon the phrase “Codes are not for sale or transfer” to carry all of that weight. Unlike the box-top language in Lexmark, Disney’s phrase does not identify the existence of a license offer in the first instance, let alone identify the nature of any consideration, specify any means of acceptance, or indicate that the consumer’s decision to open the box will constitute assent. In the absence of any such indications that an offer was being made, Redbox’s silence cannot reasonably be interpreted as assent to a restrictive license.

So my prediction following that was: "this almost certainly means that Disney is quickly reprinting the packaging on all its Combo Pack DVDs to make this language more legalistic to match the Lexmark standard."

And... bingo. That's exactly what happened. In a new ruling, the court has now granted a preliminary injunction against Redbox all because of the new "contract" language Disney has put on its DVDs (though amusingly, in a footnote, the court notes "Disney does not concede that the changes were necessary.")

Disney subsequently changed the language on its Combo Pack boxes, changed the download sites’ Terms of Use, and amended its Complaint. Disney’s Combo Pack packaging for the movie Black Panther is the first to reflect changes implemented after this Court’s denial of Disney’s first motion for a preliminary injunction. The front of Black Panther Combo Pack boxes indicates that the Combo Packs include a “Digital Code.” The back of the boxes state, in some of the largest print displayed, “Digital Code Included*[.]” The asterisk directs the reader to a discrete text box at the bottom of the package, which states, in smaller, allcapitalized text, “Digital code redemption requires prior acceptance of licence terms and conditions. Codes only for personal use by recipient of this combination package or family member. Digital movie code . . . subject to expiration after May 15, 2023.” Smaller type in a more central, fine print-type section of the packaging reads, “The digital code contained in this package may not be sold separately and may be redeemed only by the recipient of this combination package or a family member. Visit MoviesAnywhere.com, RedeemDigitalMovie.com, and disneytermsofuse.com for code redemption and other applicable terms and conditions.” The paper Code insert within the Combo Pack contains a similar statement and also reads, “This digital code is part of a combination package and may not be sold separately,” and “Digital code redemption is subject to prior acceptance of license terms and conditions.”

It actually goes on from there. Basically, in response to the earlier ruling, Disney slapped legal warnings and language basically everywhere possible. Some of us would suggest that this -- again -- represents clear copyright abuse, trying to use copyright in restraint of first sale, but the court notes that under the Lexmark standard, it's all groovy. The court does still seem a bit perturbed at Disney's actions, and has a somewhat fascinating discussion on the differences between shrinkwrap, clickwrap, and other types of agreements (while arguing that Disney is arguing things that are not accurate about what constitutes a contract), but does conclude that with Disney pasting legalese everywhere, Redbox is on notice:

At this stage, the court need not make a determination whether Combo Pack purchasers enter into a shrinkwrap, clickwrap, or other type of agreement, nor precisely delineate the terms of any such agreement. It appears from the record currently before the court that neither Redbox nor any other Combo Pack purchaser could (or did) reasonably believe that, notwithstanding the Black Panther licensing language on the box itself, the Combo Pack included unrestricted ownership rights to any digital content.... Because Redbox did not obtain an ownership right to any digital content when it purchased Combo Packs, Disney has adequately shown that it is likely to succeed on its claim that Redbox encouraged Redbox customers to infringe Disney’s copyrights by redeeming Codes in violation of the license terms set forth on the redemption sites.

As in the earlier ruling, the court is not impressed by Redbox's First Sale argument, noting that it was basically killed off due to the awful ReDigi ruling that killed off reselling MP3s.

This is, of course, silly. Everyone recognizes that Redbox has every right to buy physical DVDs and then resell them. In what world does it make sense that it can't also buy up a piece of paper with a download code and resell that as well? Apparently, the one we live in. I've seen some copyright extremists online cheering on this ruling, which is not surprising, but ridiculous. Cheering on a ruling like this is cheering on monopolistic practices that limit innovation and the spread of culture.


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  • identicon
    Anonymous Coward, 31 Aug 2018 @ 2:02pm

    'Cheering on a ruling like this is cheering on monopolistic practices that limit innovation and the spread of culture.'

    Thanks again to the bought and paid for courts for this crap! Had those conerned been more interested with the outcome than lining of pockets, more interested in seeing how the few were going to control not just the USA but basically the Planet as far as who could do what, copy what, sell and resell what, we wouldnt have this ridiculous, restricted market at all!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2018 @ 9:43pm

      Re:

      Had those conerned been more interested with the outcome than lining of pockets, more interested in seeing how the few were going to control not just the USA but basically the Planet as far as who could do what, copy what, sell and resell what, we wouldnt have this ridiculous, restricted market at all!

      The outcome was lining of pockets. They admit they cannot fully control copying nor is it their goal. They just want to milk as much money out of society as possible using any means necessary. As such this market will continue to exist until those who's greed cannot be quenched are eliminated from the equation.

      I've said it before and I'll say it again: "If you cannot handle the idea that you may not be compensated for the work you produce, then DO NOT PUBLISH THE WORK. Society is better off without your contribution."

      reply to this | link to this | view in chronology ]

      • icon
        ralph_the_bus_driver (profile), 1 Sep 2018 @ 6:38am

        Re: Re:

        "If you cannot handle the idea that you may not be compensated for the work you produce, then DO NOT PUBLISH THE WORK. Society is better off without your contribution."

        I, and most people, expect to be paid for our work. I used to do professional photography. Ya, taking photos for a living. Chasing people to get paid for my work is why I quit. Seeing my work republished without attribution or compensation is infuriating and expensive to chase.

        If you don't think society is better with me, and many others, producing our work then you really should come out of your mother's basement. Disney produced their movies in the expectation of selling them so they could make a profit. You have no right to my work and you have no right to Disney's work. At the same time, I have no right to your paycheck.

        If you insist on taking my paycheck then I'll want to have yours in return.

        reply to this | link to this | view in chronology ]

        • icon
          John Snape (profile), 2 Sep 2018 @ 8:45am

          Re: Re: Re:

          You have no right to my work and you have no right to Disney's work.

          We should have access to your (and Disney's) work after fourteen or twenty-eight years, but we don't.

          Return copyright to its original length of time. Why should you be able to monetize your work for decades after you die?

          reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 4 Sep 2018 @ 10:00am

          Re: Re: Re:

          Did you pay royalties to the hundred million other people who used that "mother's basement" line before you?

          reply to this | link to this | view in chronology ]

  • icon
    ShadowNinja (profile), 31 Aug 2018 @ 2:12pm

    I honestly can't believe that Redbox is even still in business. Netflix and other web streaming companies have basically already replaced them.

    The fact that Disney can't just directly sell the same thing online and render these lawsuits moot is really stupid.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 31 Aug 2018 @ 2:24pm

      Re:

      ?"The fact that Disney can't just directly sell the same thing online..."

      Well they can, maybe even do, but I haven't heard about it. Redbox is in the malls, directly in consumers eyes. No need to get them to search the net for anything. However, I don't disagree with your disbelief that Redbox is still in business.

      But, you're expecting innovation from Disney? The folks that made so much money from taking from the public domain. You expect them to innovate? To what do you attribute such a reversal in entrenched behavior?

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 31 Aug 2018 @ 2:45pm

      Re:

      I honestly can't believe that Redbox is even still in business. Netflix and other web streaming companies have basically already replaced them.

      That depends a lot on what you're looking for.

      Netflix's movie selection has really been squeezed over the past few years; it has nothing like the selection that it used to.

      If you just want to watch any old movie and it doesn't matter what, or, even moreso, if you want to watch a TV show, then Netflix and other streaming sites have got you covered.

      If you want to watch a recently-released movie, though, you may have a much better chance of finding it in a Redbox.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 31 Aug 2018 @ 3:09pm

      Re:

      I honestly can't believe that Redbox is even still in business.

      Redbox customer here! Netflix's movie selection has been cut back pretty significantly... and also if you don't really have that much time to watch movies and just do so on occasion, the Redbox setup is quite handy.

      reply to this | link to this | view in chronology ]

      • icon
        lucidrenegade (profile), 4 Sep 2018 @ 4:39am

        Re: Re:

        I still have a Netflix DVD account because of that exact reason. It sucks even more now that most studios force Netflix to wait 30 days after the release of a DVD/Bluray, instead of day and date like it used to be.

        reply to this | link to this | view in chronology ]

    • identicon
      Christenson, 31 Aug 2018 @ 3:23pm

      Re: Why is Redbox still in business???

      There's another reason:
      Crappy Broadband if you aren't downtown!

      And, Redboxes have very low overhead.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 31 Aug 2018 @ 4:35pm

        Re: Re: Why is Redbox still in business???

        It is possible that:

        1, the videos he wants to watch are not available on Netflix. Ask the MAFFIA why.

        2. Handing your credit card information to some sketchy website might not be a good idea. Then there are the quality and bandwidth restriction considerations, that should not exist.

        3. The cause of Netflix reduction in video availability is solely due to the various gatekeepers fearing direct competition. They receive income from Netflix, but they get more from direct streaming. I don't do this, so I don't know how well it works...but I have heard many stories.

        4. Mike travels. Why should he not expect the same quality of service from wherever he is?

        Now I know you know the answers to these questions Christenson, but they are, and probably more, part of the equation.

        reply to this | link to this | view in chronology ]

        • identicon
          Christenson, 31 Aug 2018 @ 5:01pm

          Re: Re: Re: Why is Redbox still in business???

          Obviously, one and only one of these things, and no other one keeps Redbox in business, and MPAA silliness isn’t all over the commentary already! Lol

          reply to this | link to this | view in chronology ]

          • icon
            Anonymous Anonymous Coward (profile), 31 Aug 2018 @ 5:17pm

            Re: Re: Re: Re: Why is Redbox still in business???

            Well, the MPAA's revocation of licenses to Netflix...because...hasn't been highlighted. I thought it should be.

            It's funny, the MPAA wants money, but they deny Netflix the ability to give it money. They want the ability to get more money from their own sites. Non silo'ed sights that many cannot find, or care to find. They pay for Netflix and expect...

            The MPAA turns down money. Not only shocking, but more humorous than anything the MPAA members produce.

            Then there are the less impactful, but relevant reasons.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2018 @ 4:17pm

      Re: Redbox in business

      In addition to the other points, I also use Redbox to try out new games! for 2 or 3 dollars a day I can rent a game that retails for 60.

      reply to this | link to this | view in chronology ]

    • icon
      AEIO_ (profile), 2 Sep 2018 @ 12:43pm

      Re: Can't believe they're still in business.

      I'm just glad that we're not all completely web-connected and techno-current. A friend of mine goes once a week to rent one (well, as a side trip.)

      I can think of 6 RB locations right off the top of my head, half are "double-units" which I assume are a connected extra bay and not an independent unit.

      If you're busy and only watch 4-8 movies a month that'd cost like $8 w/no internet fee. I could easily see how busy people could do that as a supplement to TV (OTA/Cable) if you only care about watching anything that's available.

      reply to this | link to this | view in chronology ]

  • identicon
    rasz_pl, 31 Aug 2018 @ 2:33pm

    Redbox just needs a small modification to its DVD Kiosks. Sell whole Combo Pack, offer immediate disk buyback with a slot loader DVD right next to the display.

    -User enters CC
    -Selects Combo Pack
    -Combo Pack ejects from the machine
    -user clicks "Yes, I would like a rebate for returning DVD"
    -user unpacks the Combo Pack
    -user inserts DVD into DVD slot
    -Kiosk verifies DVD disk in the drive
    -Kiosk charges CC for the digital download code only
    -CC ejects

    reply to this | link to this | view in chronology ]

    • icon
      Wyrm (profile), 31 Aug 2018 @ 4:27pm

      Re:

      Nice potential exploit there:
      you can't resell the code separately from the DVD...
      but can you resell the DVD separately from the code?

      If that works, expect Disney amend the T&C in order to try to also prevent the reselling of the DVD without violating first sale doctrine.
      I'm not wishing you luck with this one, Disney.

      reply to this | link to this | view in chronology ]

  • identicon
    Rico R, 31 Aug 2018 @ 4:29pm

    The end of first sale is just the tip of the iceberg!

    Disney's actions are so troubling that it will only be a matter of time before they extend the "license terms" to DVD and Blu-ray Discs themselves. That could easily be done to prevent first sale of those items, but why stop there? It's not beyond the realm of possibility that they could make movies like software by licensing and not selling discs. The license terms could prevent asserting fair use rights (DRM/DMCA 1201 claims notwithstanding), first sale rights, or even the right to make personal backups! In the eyes of the law, thanks to this ruling, they could easily do that and no one could stop them. Apparently copyright misuse is allowed when it's in a license agreement's clothing.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 31 Aug 2018 @ 4:44pm

      Re: The end of first sale is just the tip of the iceberg!

      I wouldn't put it past them. On the other hand, this is only one court, and not an appellate court. What happens down the road is what we need to watch.

      The right of first sale impacts a lot of things. The ability to repair, customize, edit, fair use rights. One hopes that the right overcomes the anal right of control for the seller, after sale.

      The right to, for example, customize ones car is very long standing. Changing it now would subvert a lot of history. Not that the companies that want the change care, but courts are a different story.

      The real question then becomes, will the attorneys who file the suit ask the right questions, or in another way make the right arguments.

      reply to this | link to this | view in chronology ]

      • identicon
        carlb, 31 Aug 2018 @ 10:14pm

        Re: Re: The end of first sale is just the tip of the iceberg!

        If there were no right of first sale, there would be no public libraries and there would have been no video rental stores. Those weren't created out of the goodness of publishers' hearts, but out of rights which the law gave the original buyers of the item.

        reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 31 Aug 2018 @ 5:19pm

    Just more reason why I never buy anything of Disney's.

    reply to this | link to this | view in chronology ]

  • identicon
    Smartassicus the Roman, 31 Aug 2018 @ 6:56pm

    Wait

    Someone is paying to watch Disney movies?
    Wow.

    reply to this | link to this | view in chronology ]

    • identicon
      ryuugami, 31 Aug 2018 @ 7:24pm

      Re: Wait

      Are you thinking of Mickey Mouse, Lion King, Aladdin...? Kids tend to like those, so parents tend to buy them. And don't forget that ultra-popular stuff like Star Wars and Avengers is also Disney. They're kind of difficult to avoid, what with all the mergers and acquisitions.

      About to get much, much more difficult to avoid as well; their acquisition of 21st Century Fox was approved about a month ago. That means that movies like Titanic, Independence Day, and Avatar, are soon going to be Disney movies.

      reply to this | link to this | view in chronology ]

  • identicon
    Max, 2 Sep 2018 @ 6:41am

    DVD's

    Is Disney still making DVD's? Also, I can't have Disney have all the movies and TV shows from 20th Century Fox. Just some, like the Marvel stuff, Avatar, Alien, Star Wars, you name it.

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 2 Sep 2018 @ 12:19pm

    Stockholm syndrome?

    When you create fantasy for income for a living, after a prolonged period, you loose you're grasp of reality (Hollywood comes to mind as well)

    reply to this | link to this | view in chronology ]

  • identicon
    SteamboatWillie, 2 Sep 2018 @ 6:59pm

    Here you go RedBox, easy-fix..

    Give the codes away for free.
    Just have them pay a separate processing and handling fee.

    :)

    Works for K-tel right?

    reply to this | link to this | view in chronology ]

  • identicon
    Debasish Dhibar, 4 Sep 2018 @ 11:30am

    Wait

    Someone is paying to watch Disney movies?
    Wow.

    reply to this | link to this | view in chronology ]


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