We began our commentary on the Zediva internet movie streaming service in March when I pointed out the flaws in Zediva’s reliance on the Cartoon Network case for its copyright infringement
avoidance model. The MPAA sued Zediva in April, then got a preliminary injunction against the company in August. Now the court has granted a final, permanent injunction and ordered Zediva to pay $1.8 million in damages to the MPAA for copyright infringement.
Working out of Silicon Valley, Calif., Zediva had hoped that by streaming just one DVD playing on one DVD player to one customer at a time, it could avoid normal copyright infringement and licensing fees. The judge in the case disagreed.
Zediva tried to avoid charges of copyright infringement by relying on the language of a similar (and IMO flawed) 2nd Circuit decision which held that Cablevision’s streaming DVR content to subscribers did not violate the copyright holders’ public performance right “[b]ecause each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber.” Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121 (2nd Cir. 2008).
As I noted in August, Zediva’s model — unlike Cablevision’s model — did not allow the users to create their own recording of copyright content for subsequent viewing (e.g., “time-shifting”), but instead allowed users to pick and choose among a list of available content to watch. The significance of the final Zediva ruling is that the Cartoon Network holding is, perhaps, much more fact based than otherwise thought.
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