The Big [Censored] Theory

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.

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. "

> 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.

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)"

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?

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

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?

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.

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.

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

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.

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 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".

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.

> 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.

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.

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.