The MPAA has filed another volley in the looming battle over the Zediva online DVD-streaming service. They’re hoping the Los Angeles federal judge overseeing the case quickly slaps Zediva with an injunction.
Zediva is a service that allows users to rent DVD’s online, and then watch them stream over the internet-without ever touching the DVD they rented or the DVD player it’s playing in. Because Zediva doesn’t make any copies of the DVD’s it streams, it argues that it should be treated legally like a neighborhood DVD-rental store. But the MPAA sued Zediva in April, arguing that the online streaming is a “public performance” that requires a license from copyright holders.
Zediva is relying heavily on a 2008 New York case in which the entertainment industry suffered a major copyright defeat at the hands of Cablevision (NYSE: CVC). In that case, television networks said that Cablevision’s system of recording and transmitting through remote-DVR streaming is legal.
But the MPAA is arguing that case shouldn’t apply to Zediva. “Cablevision repeatedly said that its holding applied only to a service that transmitted from one ‘unique copy’ made at the direction of a unique user to that same user,” writes the MPAA’s counsel.
In other words, the MPAA is giving the Cablevision case as narrow of a reading as it possibly can. That’s probably a smart legal strategy, going into an age where “cloud” services are likely to become more important than ever. The MPAA, like the television networks, strenuously fought against the Cablevision remote-DVR but ultimately lost. This case against Zediva could be seen as an attempt to limit the damage from that decision.
Rather than looking to Cablevision, the MPAA wants the judge to focus on two legal precedents that support its position. The first is Columbia Pictures v. Redd Horne, a 1984 case in which a judge ruled that a video-rental store that set up private viewing booths in-store was still in violation of the “public performance” right of the studios that made those videos. The other case is On Command Video Corp. v. Columbia Pictures, a 1991 case that found a hotel that set up a private VOD system was also violating copyright law, because sending video to guests’ rooms was a public performance.
“The only difference between the transmissions in Redd Horne and On Command, and those here, is that Zediva uses the Internet instead of its own cable wires to transmit the Studios’ films,” writes the MPAA’s attorney, Kelly Klaus of the Munger Tolles & Olson law firm.
Zediva’s lawyer, Joe Gratz of Durie Tangri, offered a comment today on the movie studios’ newest filing: “The Studios’ arguments don’t hold water. They’re trying to say that it’s a ‘public performance’ for one person to rent and watch a genuine, lawfully-made DVD remotely. This isn’t a case about broadcasting or copying or any other kind of copyright infringement; it’s a case about consumers’ right to watch a DVD they’ve rented, whether that rental is at the corner store or by mail or over the Internet.”
Oral argument over the issue will be heard on July 25, in the courtroom of U.S. District Judge John Walter in Los Angeles.
Update: The hearing was postponed until August 8.