Zediva

» see zediva.com as it lived, on the wayback machine

~ the obit ~

Somewhere in Santa Clara there was a room of DVD players, each one loaded with a disc bought at retail, each one wired to exactly one paying customer at a time. You picked a film on a website, a machine you had never seen pressed play, and the picture came down the wire into your browser. That was the whole product, and it was built that way on purpose.

None of it reached me and none of it was ever meant to. Zediva was a legal argument written in hardware, and the law it was arguing with was American. In 2011 I was in Ankara, where the US release window was something you read about rather than waited out, and where the licensed streaming services of the moment simply did not operate. Netflix did not open in Turkey until 2016.

WTV Systems ran it and Venkatesh Srinivasan founded it. The pitch was flat and unembarrassed: our users rent a physical DVD from us, along with a DVD player, for a fixed amount of time. A rental cost $1.99, and ten of them cost ten dollars. The rental held for fourteen days. What made everybody else pay attention was the timing, because a new film goes to disc months before it goes to any licensed streaming service, and Zediva was streaming discs.

~ the rap sheet ~

~ the room full of players ~

The mechanism was deliberately literal. One customer to one disc, occupying one machine for the length of the viewing. Nothing was ripped to a server and nothing was transcoded from a studio master. The company bought retail DVDs like anyone walking into a shop, and the bytes leaving the building were whatever the player put out. Srinivasan described the arrangement as playing a movie from a DVD with a very long cable attached.

It was also a terrible business on its face, and that was doing the work. Every simultaneous viewer needed a machine and a copy of their own, so the cost of a hit scaled straight up with demand in a way no streaming service on earth accepts. Rent one copy to one person at a time and you are a video store. A video store does not need a license from anybody.

~ the argument ~

Copyright separates the right to distribute a copy from the right to perform a work publicly. A rental shop hands you a disc it bought, which is a copy whose distribution right was exhausted at the first sale, and no permission is required for that. A channel broadcasting the same film performs it publicly and pays for the privilege. Zediva put itself on the rental side of that line by never once letting go of the physical object.

The studios answered that the transmission itself was the performance, and that performing to whoever pays, one at a time, in sequence, is still performing to the public. The precedent Zediva leaned on was the Cablevision remote-DVR ruling, where a recording made by a subscriber on a provider's hardware stayed the subscriber's own copy. Judge John Walter declined to extend it, and specifically refused to import the volitional-conduct requirement that Cablevision had rested on.

~ the first of august ~

Warner Bros and five other studios filed in the Central District of California on 4 April 2011. The court granted a preliminary injunction on 1 August and the service went dark within days, replaced by a page calling it an intermission. Zediva appealed and kept insisting in public that it would fight the thing out.

It did not. On 31 October 2011 the company accepted a permanent injunction and agreed to pay $1.8 million, dropping the appeal on the way. Nine months of operation against a $1.8 million settlement is a rounding error to the plaintiffs and the end of the world to the defendant, which is the shape nearly all of these have.

~ what it was really testing ~

Three years later Aereo tried the same maneuver with thousands of tiny television antennas and lost at the Supreme Court, which closed the question for a generation. If the output looks like a cable service to the person watching it, courts will treat it as one, whatever the hardware in the back room is doing. Zediva was the earlier and much smaller run at the same wall.

What both of them established is that the physical layer had stopped being a legal fact. For most of the twentieth century the rights you held followed the object you owned, which is why a rental shop could exist at all. Zediva owned every disc it ever played, bought at full retail price, and it turned out that owning them bought the company nothing whatsoever.

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