In a brief filed last week, Zediva defended its business model against Warner Bros Entertainment, Columbia Pictures, Disney, Paramount Pictures Corporation, Twentieth Century Fox Film Corporation and Universal City Studios Productions, which are accusing it of copyright infringement.
California-based Zediva enables users to stream films online by renting DVDs and DVD players remotely through their computers.
The company says it is no different from Blockbuster and Netflix. The film studios, meanwhile, call the DVD rental label a “sham” and characterise it as a video-on-demand service.
As was the case with VCRs and DVRs, the film studios are trying to prevent an “innovative competitor” from entering the market, stated the brief.
At the centre of the dispute is whether Zediva’s transmission constitutes a public performance.
The studios “hope to create a loophole in the Copyright Act that would define playback of a single, authorized copy of a DVD to a single individual as ‘public’ – the legal equivalent of a television broadcast to the world at large,” wrote noted Stanford University law professor Mark Lemley, who represents Zediva with his firm Durie Tangri.
Lemley made the distinction that Zediva permits only private transmissions, not public, directly initiated by the user, not Zediva. Multiple people cannot watch the same DVD at the same time, as, like in brick-and-mortar rental stores, it cannot be rented by another while in use.
Zediva defended its position using Cartoon Network v CSC Holdings, commonly referred to as the Cablevision case, which centred on remote DVR playback. There, the Second Circuit held that a transmission made to a single subscriber using a “single unique copy produced by that subscriber” does not constitute a public performance.
“Zediva presents a virtually identical set of facts to Cablevision, and leads to the same conclusion,” said the brief. “Because each remote DVD playback transmission is made to a single subscriber using a single copy in the exclusive control of that subscriber, such transmissions are not public performances.”
Lemley also disputed the film studios’ use of Columbia Pictures Industries v Redd Horne and Columbia Pictures Industries v Aveco in supporting their claims.
In Columbia Pictures Industries v Professional Real Estate Investor, the Ninth Circuit rejected the arguments in those cases, holding that performances in rooms not “open to the public” were not public performances, said the brief.
Further, Zediva said the preliminary injunction sought by the studios is too drastic a measure, as their delay in filing the suit fails to demonstrate irreparable harm.
Using IP addresses tracing back to the film studios, Zediva cited instances in which they accessed the site as far back as November 2010. An account was created by Lawrence Jacobs, general counsel of News Corporation, the parent company of Twentieth Century Fox, in December.
The suit was filed in April of this year.
“When companies face urgent problems necessitating immediate relief to avoid irreparable harm, they do not sit silent for months before even broaching the issue,” said the brief.
“The Studios’ delay confirms that their claim does not justify drastic preliminary relief, but instead can be adjudicated in an orderly fashion, and any remedies determined following a final determination regarding liability.”
