The Big [Censored] Theory

Leaving aside the matter of Mormons and their weird puritan sensibilities, what this company essentially did was reinvent movie rental, but because they did it on the internet instead of a brick and mortar shop we're all expected to think it obvious and self evidence that what they did was horrible.

In other contexts on sites like this, "do [common thing] but on a computer" patents get mocked and derided because "but on a computer" is seen as a farce, not a fundamental difference from the [common thing].

Anyway, I guess the mormons could get around this and achieve their desired effect by instead selling DVD players with a subscription to a service that distributes EDL files; instructions to the DVD player about which parts of movies should be skipped.

Even during the video rental days you weren't allowed to just go out and purchase a bunch of videos at Walmart and start renting them out, you need to have purchased the rights to rent out the video.

Why would you say this? It is the opposite of the truth; the first-sale doctrine prevents the copyright owner from interfering with you while you rent out your cassettes.

You need to purchase rights to display the video in public. No one can stop you from renting out the tape. You already possess the right to rent out your own property.

As far as I'm aware, this is not true. The first-sale doctrine allowed the rental of VHS and video games bought normally at retail stores. The movie and video game industry went ballistic over this, a Nintendo executive called it "commercial rape". The movie industry took it to court and lost, and tried lobbying congress to no avail.

IIRC, they then hatched a scheme where the retail availability of new movies on VHS would be restricted at least for a time, forcing video rental shops to pay more for copies of popular new movies.

Yes, you absolutely could do that legally - it is part of the "right of first sale", however you would have to wait until the videos were available for sale at Walmart. If a video rental store wanted to have access to videos before they were available for home purchase (and most of them did) then they had to make deals with the rights holders and follow the contracts that went along with them.

You are completely wrong. There's no such thing as "right to rent video." You could 100% buy a bunch of videos and start renting them out today, and it would be completely legal. Netflix does this today for their DVD rental business. This is also why libraries are legal.

You can't buy a DVD and charge tickets to see the DVD played by you. You can't stream the DVD's contents over the Internet. But you can absolutely rent the DVD itself.

Taken to it's logical extreme though, such a service could easily render copyright effectively useless. Break the movie into 10 second clips, "rent out" each of those clips during the 10 seconds they're being viewed and automatically return them after. There, you can now "legally" stream 720 concurrent copies of a 2 hour movie at once in perpetuity for near zero marginal cost.

The only reason rentals worked was because of the physical constraints that limited the distribution of each copy. Take that away, what you're left with is just thinly veiled copyright abolishment.

So put a minimum rental time on things. Banning online rental is a bad solution.

The problem isn't that you can't stream the contents to other people. The current legal situation also roughly states that a viewer is allowed to stream the contents of copies they own, but you can't help them. (See also Aereo, where all data was permanently owned by a single user, no resale shenanigans whatsoever.) The law shouldn't work like that. Users should be able to outsource without causing a violation of copyright law.

Sure, but that's an effect on tons of laws.

Sorry. Each 10 second clip is a derivative work of the whole. So you can't sub-license portions of the work without permission.

Just like you can't lend out individual chapters of a book....

That's not really a "logical extreme", that's a straw man and an obvious ploy to do something you're not supposed to be able to do.

I think a reasonable person would see that what you describe is an attempt to make an end run around both the spirit and letter of the law. But what VidAngel was doing was "one copy = one view", which is IMO entirely reasonable. There is zero moral difference between mailing someone a Bluray disc (with instructions -- either automated or manual -- of what parts to skip) vs. keeping that disc in a warehouse and streaming the (censored) contents to exactly one person at a time.

A 10 second clip of a movie that is designed to be stitched with 710 other 10 second clips isn't fair use, it's just copyright infringement.

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:[8]

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. "

This reminds me of how Aereo worked. They effectively built small little antennas that they could put in a data center. You’d then rent the antenna and stream data to your home instead of using your own antenna. This was found (Supreme Court) to be unauthorized as it was a “public performance”. This DVD streaming service would likely have fallen under the same category.

https://en.m.wikipedia.org/wiki/Aereo

> you can't lend out individual chapters of a book

You can't? If I buy a physical book, I can't rip a page out of it and sell that to you? That's certainly the first I've heard of any such law.

We're talking about first sale doctrine here, not fair use. If I did the exact same thing with a VHS tape, cutting out 10 second strips of tape and renting them out to people, that'd be totally legal under first sale doctrine. Doing that with VHS would be totally impractical but legal. Doing it with a digital file would be totally practical but illegal, since currently first sale doctrine doesn't apply to digital distribution of copyrighted materials.

My point is just that if you think it's a good idea to extend first sale doctrine to digital files without any restrictions you may first want to consider the logical consequences of that.

While Aereo is certainly relevant, the 2011 "Warner Bros. Entertainment v. WTV Systems" is even more similar: https://en.wikipedia.org/wiki/Warner_Bros._Entertainment_Inc....

WTV ran service called "Zediva" that streamed video from physical DVD players to customers. The District Court of Central California (the same court that ruled against VidAngel) decided that this violated the performance rights of the copyright holders.

You can certainly rip a page out and sell it, by doctrine of first sale. Only one person can have the page at a time.

What you can’t (legally) do is copy a page of your book and sell it/give it away (though maybe one could argue that a mere page would be a small enough excerpt to fall under fair use).

VidAngel (and the hypothetical 10 second streamer) fall under the latter, since streaming inherently makes a copy. As you pointed out elsewhere in the thread, it would be perfectly legal (but completely impractical) to cut up a VHS tape into individual scenes and resell those pieces of tape, since no copy was made.

Mailing the disk imposes a much longer delay between customers, so it massively reduces the amount of times it can be rented. There's the moral difference - copyright owner won't sell as many copies.

But I wonder what would happen if we had some super-fast rocket drone delivery service so it's just a video rental shop on steroids?

> since streaming inherently makes a copy

If we're being pedantic about a few stray electrons, you also make a copy when you stream it from the disc to your CPU, from your CPU back to a monitor, and so on. If VidAngel had a minimum "purchase" time of 1yr the case probably would have swung the other way. The issue isn't the streaming, but rather that the nature of the agreement was more akin to making a copy than not (with "sales" happening substantially faster than they would have in meat space).

The difference is when mailing it, it gets worn out, so after a certain number of plays the renter needs to buy a new copy. If it's fine digitally it never gets worn out.

No-one's saying that online rental should be banned.

Instead, the solution that the USA's current legal system is going with is "You _can_ run an online rental service, as long as you have the copyright owner's permission (e.g., you have a contract with them in which you give them money and they give you their permission)"

While some Mormons may have "weird puritan" values, simply wanting censorship options for some movies is something that many families would like to have, not just Mormons. And I don't think it's necessarily puritan to want to cut out that one or two scenes of a head exploding in an otherwise family friendly flick.

That's exactly what companies like RedBox do/did. They would send buyers out to Walmarts and Best buys all over the country to buy up copies.

I think they eventually stopped doing it just to appease the production companies and avoid their frivolous lawsuits.

That doesn’t matter since you are allowed to copy your own digital media for the purpose of dealing with that exact situation. A rental shop would legally be allowed to make a backup copy of every disc they have in case it gets damaged.

Hmm, are they allowed to rent out the backup copy if the original breaks? I thought rental was based on first sale doctrine and backup copies are based on fair use. I'm not sure if you can combine the 2.

> Doing it with a digital file ... digital distribution ... extend first sale doctrine to digital files

I fully understand, but there's got to be a better way to describe this line in the sand given that DVDs contain digital files. "Physical" doesn't work because networks have a physical layer. "Stream" is also problematic because bitstreams are present on any kind of media. Even "network" doesn't quite cut the mustard because a chain of video stores could be described as a trade network. "Tangible" comes damn close, but suppose the baud rate is slow enough and the voltage high enough that I can discern the download by touching the wire? What, then, is the unambiguous word for what we're talking about here?

If it really boils down to letting time elapse between views/customers, shouldn't that be what the law demands?

I'm still astounded that Enchanted (the 2007 film) prominently features a scene of the chipmunk sidekick pooping on screen.

It boils down to how much $$$ the copyright owner makes per performance on average.

I actually agree, but I got the sense that the company being mormon was meant to bias the reader of that comment towards thinking that the company was in the wrong. I hoped to drive the conversation past that prejudice by conceding and dismissing it rather than pushing back against it, because I felt that on this forum pushback would likely prompt a religious flamewar rather than a discussion about digital rental.

Using EDL files to edit movies for my family is something I've actually done before. I think a superfluous sex scene is okay in most contexts, but when watching a movie with parents/grandparents it's generally too cringe for me and everybody else in the room. I used mpv's EDL functionality for this: https://github.com/mpv-player/mpv/blob/master/DOCS/edl-mpv.r...

Suppose the company threw out the disc and bought a new one after it was rented 50 or so times, would that be a meaningful change to the subjective moral fairness of their business model?

Also, how do you feel about libraries rebinding their books to fix/prevent the books from wearing out?

In the current age of gigabit FTTH connections, I wonder how the situation would be if the service provider would just allow you to rent a dvd drive in a datacenter that's connected via regular sata, just tunneled through the internet.

That'd avoid all the "breaking the DRM", "modifying the data", etc.

As provider you just offer a device that loads dvds from a user's in-datacenter storage cabinet into their in-datacenter dvd drives, and rent them a dvd drive.

That might be complicated enough to avoid the whole "performance" interpretation

well I don't know either, but what purpose would a video rental shop have in making a backup copy in case the primary gets damaged if not to rent it out?

the usage being described is 1 physical copy = 1 streaming, thus if you cut it to 10 second clips only 1 particular 10 second clip could be streaming to any one customer at any time to match this model. Thus you still end up with 1 physical copy = 1 streaming. It is illegal but shouldn't be, because of first sale doctrine being a match for this use case. I can only show you the first 10 seconds of the film if nobody else is watching it.

I see that what you're saying is that User X could watch the first 10 seconds and then the second 10 seconds while you start you're first 10 seconds but that would be sort of a ridiculous use case for the following reasons:

1. your system would include a bunch of extra work for your solution to make this work, easier and cheaper to buy 10,000 copies of the movie and stream as needed.

2. people pause movies thus your solution becomes even more expensive because it would need to calculate out who has paused their ten seconds at the 5 second mark etc. etc.

Thus it seems likely that any solution being built on the model of we have physical copy we stream you copy will be built with showing complete movie and not any clever cutting up of movie to make the number of physical copies we have stretch further. The way the law works each different use case - cutting up movie, showing complete movie - would probably be challenged and there is no reason to suppose that they would all be allowed to pass, in fact since the showing complete movie was not allowed to pass in the real world it seems unlikely that the weird edge case cutting up movie would be allowed to pass even if law was changed to allow showing complete movie was changed.

Another comment [0] pointed out that a version of this was already tried, and it was found to still be a public performance. Not sure how much the details of the technologies used would affect the ruling, but probably not enough.

[0] https://news.ycombinator.com/item?id=32645286

Well once the disk was worn out, and you had a backup, you could re-sell the backup

Of course this may be abuse of the fair use backup copy, but when talking digital, we are anyways inventing philosophies.

Other way could be the backup could be entitled to "one last rental" to recoup last 4 bucks or so. I think that would be fair use but others may not.

I like the reasoning given above — how you tried to short circuit the unwanted discussion.

A friend of mine used to make family friendly edits of films just for his own kids when they were little.

Sometimes I try to make family friendly versions of otherwise vulgar jokes. It’s an interesting art form. Very niche.

When publishing an ebook, you set a different price (usually a multiple) for libraries.

You can't license out a copy of a movie in its entirety either. Renting a physical disc is different because you aren't making a copy

I was just going to mention RedBox!

If I remember correctly, they tried to buy from the company - Disney IIRC - but they were refused sale. Instead, they simply bought retail and rented those.

Isn't pooping something we all do from birth? Hard to put it in the same category as fornication.

That's a ban on the normal mechanism via which rentals work. Sorry for shortening it. It's a bad solution.

It should require no cooperation to build an online version of DVD rental.

Because fornication is something we all want to do from puberty, therefore it’s a less neutral bodily function.

It all about ROI (Radio On Internet).

Your take on the setup for stereotypical situational humor about puritanical sensibilities and big expensive families invokes another stereotype about the puritanical sense of humor.

Mormons have a well-documented refusal to assimilate while concurrently using devious and mono-social-mind power to cheat the systems they benefit from and complain about frequently. If there’s one home grown US group that embodies “have their cake and eat it too” it’s culturally ingrained in the definition of being a practicing Mormon.

Now if you object, replace the word Mormon with Skinhead regarding mentality of others not in the group, and maybe you’ll get the picture.

Source: non Mormon with about 10 years living in Zion (SLC)

If you ran a movie rental shop using consumer copies of movies you bought from HMV or Target or whoever, you'd've been sued if the rights holders found out. Rental copies that came with a licence that permits renting cost several times what it cost to buy a consumer copy. And of course, when you sign a deal to get said rental copies, you probably have to agree to a bunch of conditions that probably include not doing exactly what they did.

For better or worse, the US legal system and media publishers disagree, and they’ve established the rules that do require cooperation with the copyrights holders to build online streaming services. But as I’m sure you know, it’s at best problematic to call online streaming a “DVD rental”. It doesn’t fall under first sale doctrine if you stream a transcoded copy of the DVD you bought. This is why the laws around digital distribution and copyright aren’t exactly the same as the laws around physical distribution and copyright.

I'm not a Mormon and I don't deny that I think the particulars of their belief system are often weird. But I don't think the nature of Mormons actually matters in this context, and speaking generally I don't think there is anything wrong with people choosing which media they and their families consume. If people want to fast forward over parts of a movie they don't like, I think that's understandable. And if their decision about which parts of a movie to skip is weird to me, so what?

You've lost me. You'll have to tell me what you mean instead of beating around the bush.

I believe the only comment I've made about my take on humor is that anybody who laughs at TBBT must be under the influence of laughing gas. But you think this is because I have puritanical beliefs? Are you accusing me of that, or have I misread your comment? This earnestly is not clear to me.

I would say the law around first sale doctrine has not caught up yet more than it actively disagrees.

> It doesn’t fall under first sale doctrine if you stream a transcoded copy of the DVD you bought. This is why the laws around digital distribution and copyright aren’t exactly the same as the laws around physical distribution and copyright.

I don't think transcoding should matter, at least if it's done on the fly, but also it's entirely doable to throw raw DVD bits over the wire. And neither one should count as a copy any more than shining light onto a book makes "copies".

Your just confusing the Mormons with Republicans. Both being the majority in Utah. You'll find little difference in other republican controlled states.

I’m not arguing your opinion, I’m just pointing out the established precedent and law disagrees with your opinion, so it’s going to take some work if you want the outcome you’re describing. Saying it could work in theory if people just transcode on the fly and self-limit the rental rate isn’t particularly convincing, fwiw. The shining light analogy is a little hyperbolic, I’m sure you know. Transcoding & streaming definitely is making a copy, because the bits exist in two places. Not that this matters, it’s splitting hairs that may not exist. The point of copyright law is to give copyrights holder control over who gets to distribute and who gets to consume, and it may not make any difference whether there’s technically copying involved according to however you define copying.

> There's no such thing as "right to rent video."

There is, strictly speaking—it's part of the exclusive rights that Title 17 lays out for copyright owners[1]. It's just that (a) it forces you to be in the business of doing the rentals yourself (you don't get to just point at someone with an interest doing rentals and dictate terms to them, sans contract), and (b) even if you're doing your own rentals, if you're also selling copies, then there's nothing stopping someone from doing an end-run around your rental business by just buying a copy from you and doing things their way with that copy.

(Granted, this doesn't make the person you were replying to any more correct about what they meant when they said you couldn't do this.)

1. "distribute copies [...] by sale or other transfer of ownership, or by rental, lease, or lending"

That's just Aereo again.

> Not sure how much the details of the technologies used would affect the ruling, but probably not enough

Right. Aereo notwithstanding, one way around this might be to set it up like MP3Tunes[1] where you're a specialized digital locker service. The "fixed" "tangible medium" should originate with the customer, and a transfer from the customer-controlled copy to the business should be involved (rather than the other way around). With a large enough physical presence, you could get this down to pizza delivery time frames and/or Redbox levels of friction.

1. contrast with mp3.com

> I’m not arguing your opinion, I’m just pointing out the established precedent and law disagrees with your opinion, so it’s going to take some work if you want the outcome you’re describing.

Except for all the pre-digital precedent that informs and agrees with my opinion.

> The shining light analogy is a little hyperbolic, I’m sure you know. Transcoding & streaming definitely is making a copy, because the bits exist in two places.

I don't think it reaches hyperbole. The bits only need to exist in two places for milliseconds. It should not count as a copy. It's only a copy in a pedantic technical sense.

> The point of copyright law is to give copyrights holder control over who gets to distribute and who gets to consume, and it may not make any difference whether there’s technically copying involved according to however you define copying.

Except they're supposed to lose a huge amount of control after the first sale. This feature of copyright is broken for digital items.

I'm not beating around the bush.

The story is funnier because of stereotypes. That's the function mentioning the group serves. Taking a joke overly seriously and then having it explained to you is also a stereotype. It's just mildly humorous, and now it's slightly moreso.

Hmm, actually researching this more, I don't think it's actually legal for a regular individual or corporation to make a copy of a DVD movie for backup purposes. I don't think it actually falls under fair use.

You can backup software[1][2] (allowed by law, not fair use) but not movies.

[1] https://www.southerncaliforniapatents.com/articles/2014/10/0...

[2] https://www.law.cornell.edu/uscode/text/17/117

> There is zero moral difference between mailing someone a Bluray disc . . . and streaming the (censored) contents to exactly one person at a time.

Streaming is making a copy of the contents, which, if done without a license, usually violates the content owner’s copyright.

Skinhead? Holy. Sounds like someone is annoyed with the missionaries knocking on their door.

Well, shoot, maybe it’s time to write your congressperson and get copyright law changed to how you think it should be! Beware of Chesterton’s Fence though; you can claim that digital distribution is exactly the same as physical, you can claim a copy should not count as a copy and that anyone who disagrees with you is a pedant (including congress, media, and copyright law itself?), and that old laws are good enough, but there are reasons we are where we are, reasons that have been well covered, philosophized, argued about, and litigated in court. That doesn’t mean we’re done nor that everything’s right, but failure to understand those historical reasons might leave you in a position to not be able to make a compelling case. For example, copyrights holders do in fact lose a lot of control over the physical copy after first sale, the issue here is you’re trying to claim unconvincingly that a cross-over copy from physical distribution to digital distribution has no ramifications whatsoever and should be allowed without question, though you’ve made a whole series of assumptions about how it would work and what conditions it works under, arguing that it’s possible without addressing whether it’s realistic and without addressing the actual reasons we have separate standards for digital distribution today.

Ok.

I mean, Europe's already working on it. I think we'll get there eventually.

And I'm not claiming most of what you seem to think I am.