from the sooner-or-later-you'll-be-paying-license-fees-just-to-touch-yourself dept
As Zediva faces an injunction for using an extra-long “cord,” it has become clear that the various entities surrounding certain intellectual property are more than willing to beat the words “public performance” into any imaginable shape in order to add a few more dollars to their bottom line.
In the Zediva case, “public performance” was half-nelsoned into this nonsensical phrase: “The non-public nature of the place of the performance has no bearing on whether or not those who enjoy the performance constitute ‘the public’ under the transmit clause.” Anytime individuals performing certain actions start getting referred to as “the public,” you know someone’s just trying to collect yet another licensing fee.
This abuse of the phrase “public performance” goes way, way back. In 1984, a video rental business named Maxwell’s found itself on the receiving end of a lawsuit from Columbia Pictures. The “offending” idea was simple: set up private viewing booths for rented movies. This was back before everyone and their grandmother had a VCR or two laying around the house, casually eating rented tapes while flashing a blank, who-me? look of “12:00.” Since VCRs had yet to hit true affordability (Sears had one listed at $458.95) and not everyone could afford the rental fees for the store’s machines, Maxwell’s decided to help customers out by allowing them to watch movies in private booths on their premises. (The following legal description is taken from the above-linked filing):
 Each store contains a small showroom area in the front of the store, and a “showcase” or exhibition area in the rear. The front showroom contains video equipment and materials for sale or rent, as well as dispensing machines for popcorn and carbonated beverages. Movie posters are also displayed in this front area. In the rear “showcase” area, patrons may view any of an assortment of video cassettes in small, private booths with space for two to four people. There are a total of eighty-five booths in the two stores. Each booth or room is approximately four feet by six feet and is carpeted on the floor and walls. In the front there is a nineteen inch color television and an upholstered bench in the back.
 The procedure followed by a patron wishing to utilize one of the viewing booths or rooms is the same at both facilities. The customer selects a film from a catalogue which contains the titles of available films. The fee charged by Maxwell’s depends on the number of people in the viewing room, and the time of day. The price is $5.00 for one or two people before 6 p.m., and $6.00 for two people after 6 p.m. There is at all times a $1.00 surcharge for the third and fourth person. The fee also entitles patrons to help themselves to popcorn and soft drinks before entering their assigned rooms. Closing the door of the viewing room activates a signal in the counter area at the front of the store. An employee of Maxwell’s then places the cassette of the motion picture chosen by the viewer into one of the video cassette machines in the front of the store and the picture is transmitted to the patron’s viewing room. The viewer may adjust the light in the room, as well as the volume, brightness, and color levels on the television set.
 Access to each room is limited to the individuals who rent it as a group. Although no restriction is placed on the composition of a group, strangers are not grouped in order to fill a particular room to capacity. Maxwell’s is open to any member of the public who wishes to utilize its facilities or services.
Seems simple enough: patrons pay the rental fee plus an added cost per head to enjoy watching movies they wouldn’t have been able to otherwise. Of course, if this is a useful and innovative service that involves intellectual property, it needs to be shut down.
While the court found that Maxwell’s was covered in every other instance of possible copyright infringement, it still had an issue with the “public performance.” Great pains are taken in these rulings to determine that “the public” doesn’t necessarily have anything to do with being “in public” and that, in fact, each individual is a “member of the public” and therefore, individuals watching or listening to movies or music are enjoying a “public performance.”
“a performance made available by transmission to the public at large is `public’ even though the recipients are not gathered in a single place. . . . The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms . . . .” House Report, supra, at 64-65, U.S.Code Cong. & Admin.News, p. 5678. Thus, the transmission of a performance to members of the public, even in private settings such as hotel rooms or Maxwell’s viewing rooms, constitutes a public performance. As the statutory language and legislative history clearly indicate, the fact that members of the public view the performance at different times does not alter this legal consequence.
So, there’s no way around it. Anytime an individual enjoys intellectual property that someone else paid for (first-purchase), they need to pay a “public performance” fee. This has nothing to do with protecting intellectual property and everything to do with maximizing the amount of times a rights collection group can get paid for the same product.
The court then goes on to point out that the “right of the first sale” can be tossed out because the tapes never left the store:
In essence, the defendants’ “first sale” argument is merely another aspect of their argument that their activities are not public performances. For the defendants’ argument to succeed, we would have to adopt their characterization of the “showcasing” transaction or activity as an “in-store rental.” The facts do not permit such a finding or conclusion. The record clearly demonstrates that showcasing a video cassette at Maxwell’s is a significantly different transaction than leasing a tape for home use. Maxwell’s never disposed of the tapes in its showcasing operations, nor did the tapes ever leave the store. At all times, Maxwell’s maintained physical dominion and control over the tapes. Its employees actually played the cassettes on its machines. The charges or fees received for viewing the cassettes at Maxwell’s facilities are analytically indistinguishable from admission fees paid by patrons to gain admission to any public theater. Plainly, in their showcasing operation, the appellants do not sell, rent, or otherwise dispose of the video cassette. On the facts presented, Maxwell’s “showcasing” operation is a public performance, which, as a matter of law, constitutes a copyright infringement.
Now we’re right back to an argument about the “length of the cord,” only this time framed as “the length of the transit.” In essence, because the videotapes were rented and watched in the same location, it is now an issue of copyright infringement. What would have happened if Maxwell’s had rented the tapes in one store and allowed the playback in another store? If it had two connecting strip mall storefronts, the tapes would never have left the premises but it could be safely argued that they weren’t being viewed at the same address. No doubt the court still would have found that this was a violation as well, despite any other twists like different addresses and business names. The fact that anyone even needs to consider these sorts of possible loopholes indicates how truly screwed up the “public performance” aspect of copyright actually is.
Once the phrase “intellectual property” gets thrown into the mix, it seems all conventional wisdom goes right out the window. This was simply a matter of a business filling a need (video viewing for those without prohibitively expensive VCRs) and copyright was used yet again as a one-size-fits-all legal blunt force object, operated by an industry known for its greed and shortsightedness. This Columbia Pictures vs. Maxwell’s case is being tossed around by pro-copyright writers as precedent in the Zediva case. Of course, adding up two wrong decisions doesn’t actually make anyone right, it just makes it easier for the next innovative service to be shut down under ever-shifting determinations of what actually consitutes a “public performance.”
God forbid anyone enjoy art forms like movies and music “in public.” It seems as if the guardians of intellectual property would like nothing better than for their “products,” which are hyped extensively and which apparently need millions of purchases in order to recoup their “investments,” to be enjoyed as solitary, lifeless experiences, preferably purchased at full retail by everyone at all times. And as for the commenters that infer constantly that the writers and readers of this site must “hate” artists because of our collective antipathy towards copyright… well, have you ever considered how much certain art-related industries must truly hate their customers? How many other businesses could achieve this sort of success while actively limiting the options available to the public? How many could honestly consider a single person (in the case of streaming music and videos) to be the “public” in the phrase “public performance?” The answer is zero. What we have today are soulless husks on the edge of extinction, wafting through the courtrooms and congressional offices of the US, propping themselves up on overreaching legislation and endless fees, constantly striving towards an endgame where everyone pays for everything every time they use it and that buying movies or music means never truly owning them.
Filed Under: copyright, public performance
Companies: columbia pictures, maxwell, zediva