Sunday, November 11, 2012

Public Performance

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Public Performance and Public Display Rights

The harsh reality of copyright law is that its not entirely about promoting artistic expression. Copyright law was designed to help rights holders make money from their art, which legislators see as key to promoting the creation of new art. Rights holders and parties trying to distribute works in original ways often find themselves at odds, as in Columbia v. Redd Horne. Columbia sued a video rental place that rented booths to members of the public who paid a fee to view movies in those booths.

Unlike Doug, I agree with the Court's reasoning that private places which are available to the public should be considered public performance. For the most part I see no real practical difference between what the video rental place did in Redd Horne and what Blockbuster does regularly. However the language of the law prevents such action. Columbia had an economic interest in preventing the rental service because it made access to its movies easier. Unlike, a normal  video rental the patrons of Maxwell's did not have to pay for a television or VCR themselves. This business model made movies more widely available and the plaintiffs received a minimal benefit from the new service. The lesson to be learned from Redd Horne other similar cases is that entities wanting to distribute works need to work with rights holders.

The result of much of this litigation has been greater protection for the rights holders but not always. Innovators in distribution need to be extremely careful in how they operate. The story of Spotify and Grooveshark come to mind. Two music streaming services started around the same time. One became worth three billion dollars. The other is facing serious legal troubles. These services will also probably be central to my discussion of the DMCA, which should be coming soon.

The judiciary's interpretation of the public performance right can be seen as punishing persons who innovate new ways to distribute material. It might just be an inherent optimism, but I prefer to see public performance right law as a way to reward innovators who find ways to work with rights holders. Unfortunately, Spotify's success hasn't really translated into benefits reaching the artists. Ultimately I think artists will learn to consider streaming royalties more in the future when contracting with record companies, so hopefully this problem won't last forever.