Published by LawTechie - August 3, 2011 - LawTechie

intellectual property lawyer nyThe Zediva copyright infringement / video streaming dispute — which we noted back in April — has come to a head with the MPAA winning a preliminary injunction against the fledgling internet video “rental” company. Warner Bros. Entertainment Inc., et al v. WTV Systems, Inc. et al, 11-CV-02817 (CDCA, August 1, 2011)

As I discussed back in April, Zediva’s attempted copyright loophole (via the First Sale Doctrine) of matching one video to one customer seemed to rely on the 2nd Circuit holding in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121 (2nd Cir. 2008), which found 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.”

I also noted the court’s following language, that “[t]his holding… does not generally permit content delivery networks to avoid all copyright liability by making copies of each item of content and associating one unique copy with each subscriber to the network.” Accordingly, in granting the preliminary injunction, the Zediva Court found that:

Defendants’ transmissions are “to the public” because the relationship between Defendants, as the transmitter of the performance, and the audience, which in this case consists of their customers, is a commercial, “public” relationship regardless of where the viewing takes place.

Daniel Diskin at the Copyright & Trademark Blog provides good analysis on this point:

The Second Circuit, in Cartoon Network LP, LLLP v. CSC Holdings, Inc. (the “Cablevision” case), criticized the District Court’s emphasis on the commercial relationship in On Command. While Zediva placed heavy emphasis on Cablevision, Judge Walter also distinguished that case in a lengthy footnote. In Cablevision, only one customer could watch a given copy of a movie, and the Second Circuit found that this was a private performance. Judge Walter contrasts Cablevision with the facts here, in which a single DVD is transmitted to numerous individuals.

I wholeheartedly agree and, as I noted in our previous post, Cartoon Networks would be distinguished on this particular point (allowing me to indulge in a bit of I told you so).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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