Zediva is clearly violating the Studios’ public performance right under settled law. The statute’s plain language, as consistently construed for decades, makes it clear that the thousands of separate transmissions of the Studios’ films that Zediva sends to users “in separate places” and “at different times” constitute performances “to the public.” 17 U.S.C. § 101; Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 159 (1984); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787, 790 (N.D. Cal. 1991). The only difference between the transmissions in Redd Horne and On Command, and those here, is that Zediva uses the Internet instead of its own cable wires to transmit the Studios’ films. But the Internet does not make Zediva any less liable than the services in those cases. Zediva itself admits that the Internet simply functions as “a very long cable” for its transmissions. Opp. at 8:14. And the cases are clear that streams over the Internet are public performances, even where (as is common) each stream is sent separately to an individual user. See United States v. Am. Soc’y of Composers, Authors, Publishers, 627 F.3d 64, 74 (2d Cir. 2010) (“ASCAP”). The rule Zediva advocates would eviscerate protection for a wide range of works streamed over the Internet.
Zediva’s near-total reliance on Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”), in arguing that its performances are private, is misplaced. Cablevision repeatedly said that its holding applied only to a service that transmitted from one “unique copy” made at the direction of a unique user to that same user. Id. at 135, 138, 139. Zediva concedes that the facts of its service are different than those that were critical to the Cablevision court’s holding. Opp. at 9. The case does not assist Zediva.
The equities cry out for an injunction. Video-on-demand (“VOD”) over the Internet is an important and fast-growing market. Legitimate participants recognize they have to respect the rights that Congress created and obtain licenses to exploit companies that have tried to jump-start a business by violating copyright owners’ the Studios’ public performance right. Zediva is just the latest in a line of rights. Notwithstanding the oft-repeated cries of “we’re small,” and “an injunction will destroy our business,” courts have not hesitated to issue injunctions to protect the rights of content owners and licensees who play by the rules that Congress established. The Court should grant the Studios’ Motion.