Columbia Pictures Industries,^412 which held that transmissions of movies from a central console
of VCRs (each VCR containing a copy of a particular movie) in a hotel to private guest rooms
did not constitute “electronic rentals” similar to guests’ physical borrowing of videotapes, but
rather constituted transmissions of performances under the transmit clause of Section 106(4). In
On Command, the fact that hotel guests initiated the transmission by turning on the television
and choosing a video was immaterial. The court ruled that, as in On Command, the Zediva
service fell under the transmit clause because it transmitted performances by communicating the
images and sounds of the movies through the use of a device or process (the defendants’
equipment, servers and the Internet) from its central bank of DVD players to individual
customer’s computers, where the images and sounds were received beyond the place from which
they were sent. And as in On Command, the fact that Zediva’s customers initiated the
transmission by turning on their computers and choosing which of the works they wished to view
was immaterial to the legal analysis.^413
The court further ruled that the transmissions of the Zediva service were “to the public”
for purposes of the transmit clause “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. The non-
public nature of the place of the performance has no bearing on whether or not those who enjoy
the performance constitute ‘the public’ under the transmit clause.”^414
The court rejected the defendants’ argument that their performances were not “to the
public” in view of the Cartoon Network (Cablevision) case discussed in Section II.B.5 above.
Under Cartoon Network, the Second Circuit found that the transmissions were not “to the
public” because each RS-DVR playback transmission was made to a single subscriber using a
single unique copy produced by that subscriber. By contrast, in this case, the defendants’
customers did not produce their own unique copy of the plaintiffs’ copyrighted works. Instead,
like On Command, the same DVD was used over and over again to transmit performance of the
works, which destroyed the one-to-one relationship on which the Cartoon Network decision
depended for its finding that the transmissions were not to the public.^415
The court also rejected the defendants’ argument that it should adopt the Second Circuit’s
volitional requirement for direct copyright infringement liability. The court found that no Ninth
Circuit case had adopted the volitional conduct requirement and that, in view of the fact that
copyright infringement is a strict liability offense, the court was not inclined to adopt the
volitional conduct requirement without clear instruction from the Ninth Circuit.^416 Finally, the
court rejected the defendants’ reliance on Professional Real Estate Investors, Inc.,^417 which
(^412) 777 F. Supp. 787, 789-90 (N.D. Cal. 1991).
(^413) WTV Systems, 824 F. Supp. 2d at 1009-10.
(^414) Id. at 1010.
(^415) Id. at 1011 n.7.
(^416) Id.
(^417) 866 F.2d 278 (9th Cir. 1989).