The title of this post was updated (replacing “Display” with “Performance”) a day after it was originally published. See the update at the bottom of the post for more details.
Last week a federal district court in California decided in favor of the University of California defendants in a lawsuit brought by Ambrose Video Publishing (AVP) and the Association for Information Media and Equipment (AIME). A majority of the decision hinged around whether the plaintiffs had “standing” to bring the suit, and commentary by Kevin Smith and ARL go into more detail about that. The bit that I found interesting was reasoning by the judge that equated “public performance” rights with “streaming.” Far down in the judge’s decision was this line of reasoning:
AVP alleges that Defendants’ use of the DVDs (streaming them on the UCLA intranet) infringed on multiple exclusive rights that AVP has over the DVDs. These exclusive rights included the rights to control copying, public performance, public display, and public distribution. (Id.) Defendants argue that AVP (or “Ambrose”) does not state a claim for violation of AVP’s exclusive rights to publicly perform, publicly display, distribute, and copy under the Copyright Act because: (1) AVP granted Defendants the right to publicly perform the DVDs at issue; (2) UCLA’s streaming practice is not a “public display” under the Copyright Act;1 (3) there are no allegations that UCLA distributed copies of the DVD, as “streaming” is not distribution, and (4) any unauthorized copying was an incidental “fair use” under the Copyright Act and therefore permissible.
AVP argues that Defendants’ copying the DVD in a way that changes the format of the DVD to a digital format for use on the internet violates AVP’s rights under the copyright law. As to Defendants’ fair use argument regarding the making of unauthorized copies, Plaintiffs argue that Defendants’ use is not fair use because Defendants knew that their license was limited and did not provide for streaming (and therefore incidental uses of the streaming practice such as copying) of the DVDs.
(1) Publicly PerformAVP concedes that it licensed Defendants to “publicly perform” the DVD. At oral argument, AVP conceded that within the scope of the right to publicly perform the DVD is Defendants’ ability to show the DVD in a classroom. Plaintiff’s basic argument is that streaming is not included in a public performance because it can be accessed outside of a classroom, and as remotely as overseas. However, Plaintiff does not dispute that in order to access the DVDs, a person must have access to the UCLA network and specifically to the DVD. The type of access that students and/or faculty may have, whether overseas or at a coffee shop, does not take the viewing of the DVD out of the educational context. The Court finds that the licensing agreement allows Defendants to put the DVD content on the UCLA internet network as part of the provision of the agreement that Defendants could “publicly perform” the DVD content, and therefore Plaintiffs have failed to state a claim of copyright infringement over their right to publicly perform the DVD.
(2) “Public Display” and “Distribution”Plaintiffs do not specifically counter Defendants’ arguments that “streaming” is not distribution or that the Complaint lacks allegations of “public display.” The Court finds that Plaintiffs have failed to state a claim for a violation of these rights under copyright law.
(3) “Copying”Defendants do not dispute that they did not obtain authorization from AVP before placing the DVDs’ content on the UCLA network. They argue that the copying was an incidental use of their right to publicly perform the DVDs. Incidental exercises of other lawful rights constitute non-infringing “fair use.” See perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (holding that the creation of short-term copy to be a fair use). Here, Plaintiff AVP alleges that Defendants copied the DVD in order to be able to put it on the UCLA internet network. Because placing the DVD on the UCLA network is part of the right that Plaintiff licensed to Defendants, the copying was incidental fair use.- Order Granting Defendant’s Motion To Dismiss, Association For Information Mediat and Equipment et al v. The Regents of The University of California et al, CV 10-9378, pp. 8-10, as captured from PACER by Internet Archive RECAP (emphasis added, legal citations removed from text)
To me, this seems to equate public performance with the right to stream. I would note that a public performance right is one that needs to be purchased/negotiated, and ownership of a physical DVD does not imply public performance rights. (This is where I take issue with the lead paragraph of the Ars Technica article covering this decision; it is not enough to have purchased the DVD — one must purchase the public performance rights as well.) Still, this is a significant decision for higher education institutions that seek to harmonize physical classroom capabilities/options with those of distance learners. Or, in other words, if it can be done in the physical classroom it can be done in the virtual classroom as well (with all of the identity and enrollment access checks in place). As the Chronicle of Higher Education quotes New York Law School associate professor James Grimmelmann as saying, “universities will have a little more breathing room for using media.”
This is, of course, not legal advice. Consult your own lawyers before using this court decision as precedent. And note that Ambrose and AIME still have the option of refiling the case subject to meeting criteria not talked about in this post.
The original title of this post was AIME v UCal Decision Says Streaming Equivalent to Public Display. It now refers to Public Performance rather than Public Display. I was sloppy in writing the headline after constructing the post, and Jonathan’s first comment indirectly pointed that out. “Public Performance” and “Public Display” are two different rights as spelled out in the U.S. Code and are rights that are treated individually in the district judge’s ruling. Here are the definitions:
To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
Not that these definitions really clear up anything — there is clearly a diference between “display” and “perform” for motion picture works, but the exact distinction is not significant to me. There are probably whole treatises written on the difference, but I couldn’t come up with anything quickly that I trusted that explained the difference. As Jonathan points out, more clarity here would be welcome.(This post was updated on 25-Sep-2013.)