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How a Fight Over Star Wars Download Codes Could Reshape Copyright Law (arstechnica.com)

Posted by BeauHD on from the atomic-bomb-of-a-finding dept.

An anonymous reader quotes a report from Ars Technica: A federal judge in California has rejected Disney's effort to stop Redbox from reselling download codes of popular Disney titles like Frozen, Beauty and the Beast, and the latest Star Wars movies. Judge Dean Pregerson's Tuesday ruling invoked the little-used doctrine of copyright misuse, which holds that a copyright holder loses the right to enforce a copyright if the copyright is being abused. Pregerson faulted Disney for tying digital download codes to physical ownership of discs, a practice that he argued ran afoul of copyright's first sale doctrine, which guarantees customers the right to resell used DVDs.

If the ruling were upheld on appeal, it would have sweeping implications. It could potentially force Hollywood studios to stop bundling digital download codes with physical DVDs and force video game companies to rethink their own practices. But James Grimmelmann, a copyright scholar at Cornell Law School, is skeptical that the ruling will survive an inevitable appeal from Disney. "I don't see this one sticking," Grimmelmann told Ars. Copyright misuse has such sweeping legal implications that an appeals court will be reluctant to apply it to a common movie industry practice.

96 comments

  1. Fucking Disney... by Anonymous Coward · · Score: 1, Insightful

    "Copyright misuse has such sweeping legal implications that an appeals court will be reluctant to apply it to a common movie industry practice."

    Okay, so just break the law enough times that no one will want to charge you with the crime because it would change the status quo... great line of thinking...

    1. Re:Fucking Disney... by war4peace · · Score: 1

      While I agree with you, holding the decision would simply mean that all future DVDs and games will come withOUT download codes. Customer loses anyway.

      --
      ...gis sdrawkcab (usually not responding to ACs; don't bother posting as AC)
    2. Re:Fucking Disney... by sexconker · · Score: 3, Insightful

      Good! I don't want to pay for a shitty download code. I want the full quality disc.

    3. Re:Fucking Disney... by Anonymous Coward · · Score: 0

      Disney isn't going to lower the price of their Discs just because they didn't include a download code.

      The only reason they would lower the cost of movies is if enough people were to stop buying physical discs because they didn't come with the code.

    4. Re:Fucking Disney... by Lunix+Nutcase · · Score: 1, Informative

      Copyright misuse is not a crime and never has been so there is no crime to charge them.

    5. Re:Fucking Disney... by jordanjay29 · · Score: 3

      That's why this is a civil action against Redbox, and not a criminal proceeding.

    6. Re:Fucking Disney... by Anonymous Coward · · Score: 0

      No, you have it backwards.

      All future movies and games will be digital-download only. ALL of them. If you want it on blueray or DVD, sad news for you. You'll be required to buy an AppleTV to watch everything, because Android will be considered "not securable"

      Games may simply stop physical copies altogether.

      The first sale doctrine runs head first in a brick wall, because you can't simply transfer a code from one person to another.

    7. Re: Fucking Disney... by Anonymous Coward · · Score: 0

      Copyright abuse has become very common, but also a HUGE problem. Yes, the effects would be sweeping, but it's exactly because of that that the judges should deal with. Common practice does not make a behavior legal.

    8. Re:Fucking Disney... by war4peace · · Score: 1

      Wait, wait...
      Currently you have the movie on the disk AND the download code.
      In the future, you will just have the movie... or just the code, but not both.
      Therefore, you, the customer, lost something.

      --
      ...gis sdrawkcab (usually not responding to ACs; don't bother posting as AC)
    9. Re:Fucking Disney... by easyTree · · Score: 1

      You know that every time you buy one of their products, it encourages them - tells then 'yes, the ratio between cost and enjoyment-gained is acceptable to me'. If it's not acceptable, stop telling them or is.

      --
      Requiem for the American Dream
    10. Re:Fucking Disney... by sexconker · · Score: 1

      No. If they separate them out then the price will be lowered.
      Now, I'm sure you're thinking "fat chance", but if they still end up offering physical discs and codes separately, they will do a value proposition analysis for both of those and the old disc+code combo packs.

      I don't know what the prices are now, but I can imagine:

      Disc + Code = 30
      Disc = 25
      Code = 10

    11. Re:Fucking Disney... by Anonymous Coward · · Score: 0

      You can imagine that but you'd be wrong. Selling the code by itself is the equivalent of selling a digital download. What you're proposing equates to no longer providing codes in the box AND lowering the price of digital downloads dramatically.

    12. Re:Fucking Disney... by Rakarra · · Score: 1

      Wait, wait...
      Currently you have the movie on the disk AND the download code.
      In the future, you will just have the movie... or just the code, but not both.
      Therefore, you, the customer, lost something.

      Much of the time, those download codes are unusable. I don't know WTF they have an expiration date, but there you go.
      I've never used them, because ripping the disc and creating my own copy gives far superior results.

  2. I think it might stick by Anonymous Coward · · Score: 1

    Copyright isn't magical, it is the right to make copies. They sold two copies. One that can be easily transfered with a code. I don't see how they can legally prevent transfer and even if they do, it would likely violate first sale doctrine.

    1. Re:I think it might stick by dgatwood · · Score: 4, Informative

      They absolutely can prevent transfer of a license. The license is obtained by entering the code into a website, and that code is usable only once. That's not where Disney's argument falls apart from a legal perspective.

      The problem with Disney's argument is that their reasoning, when applied to slightly different situations, results in a legal interpretation that fails the common sense test. Consider three scenarios:

      • Case 1: You buy a DVD for $10. You use the code, and keep it, because it is nontransferable. However, you sell me the DVD for $5 because you don't need it, according to your right of first sale.
      • Case 2: I buy a DVD for $10. I sell you the code from that DVD for $5. The company claims that I'm not allowed to sell the code to someone who is not the original buyer.
      • Case 3: I buy a DVD for $10 and sell it unopened to you for $10, which is my right (first sale again). You open it, use the code, and sell back the disc to me for $5.

      In all three cases, the result is the same: I have a DVD and you have an electronic copy, and we each spent $5.

      Nothing in Title 17 could plausibly explain why only one of these three transactions is legal, given that the end result and process are effectively identical except for trivial accounting differences. Such a requirement completely fails to stand up to the slightest bit of logical scrutiny, and any legal code that would result in such an outcome would have to be patently absurd.

      Now the question of whether the second person (being not the original buyer) has the right to *use* the code is another question, but if you apply the same reductio ad absurdum to that, you get the same results.

      So the correct question is not whether the judge's decision is correct — it very clearly is — but whether the particular path to that conclusion will survive appeal or will be replaced with a different path to the same inevitable conclusion.

      You really have to wonder what Disney's lawyers were smoking to have believed that they could pull this off. IMO, it isn't just clear-cut legally; it is *laughably* so.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

    2. Re:I think it might stick by Anonymous Coward · · Score: 0

      mod parent up

    3. Re: I think it might stick by c6gunner · · Score: 4, Insightful

      The workaround for that seems pretty simple; they only have to specify that your license for the downloaded movie is only valid so long as you have the original disc. If you sell the disc then the license is revoked, and you have to delete the downloaded copy. This doesn't violate the "first sale" doctrine since you still retain the right to sell the disc.

      I'm not sure whether that's part of their license or not ... if not then it was obviously a rather large oversight. Expect it to be rectified.

    4. Re:I think it might stick by Anonymous Coward · · Score: 0

      Taxation Fraud. If you hire or lease something, then you also in most states pay a rental tax plus state tax. If they maintain their is a license , why is there systemic tax evasion.

      You buy something, you pay state tax on the sale.
      If I am a minor, I cannot enter into a legal agreement - ooops

      If I buy a car, I can sell the engine or parts as I feel like it. If I buy 2 for one at the supermarket, I can sell that second can of baked beans.

    5. Re: I think it might stick by Anonymous Coward · · Score: 0

      That wouldn't be enforceable any more than Microsoft's bundling of Windows with OEM PC's is.

      For years, if you wanted a cheaper OEM version of Windows, all you had to do was buy the OEM version and "any" piece of hardware. People often bought cheap cables with them.

      Basically as far as digital download codes go, they are only usable once. Just like Windows licences can only be used once. If you try to use that code on another machine , or you replace too many pieces of hardware at once, it becomes invalid and will see re-authorize. Same with Adobe's software.

      Which circles back to the thing with movies. The code becomes married to the account. There is nothing stopping a "rental" company from renting you AppleTV devices with 200 movies activated on it. Just rent the devices out, and when the rental period is up, change the password on them.

    6. Re:I think it might stick by AmiMoJo · · Score: 1

      Disney's lawyers were probably snorting coke off the toilet seat when they came up with that argument.

      They don't care that it's obviously flawed, Disney told them to defend their position. And it's probably only a prelude to bribing some lawmakers to charge the law anyway.

      --
      const int one = 65536; (Silvermoon, Texture.cs)
      SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
    7. Re:I think it might stick by josquin9 · · Score: 1

      While I agree with your logic, your conclusion goes against one of my three rules:
      1.) Never get involved in a land war in Asia.
      2.) Never go up against a Sicilian when death is on the line.
      3.) Never oppose Disney in court when Intellectual Property rights are involved.

    8. Re:I think it might stick by BronsCon · · Score: 1

      They absolutely can prevent transfer of a license.

      Yes they can, but let's skip ahead slightly; I promise we're not going far and we're coming right back.

      That's not where Disney's argument falls apart from a legal perspective.

      Are you sure about that? After all, Redbox never obtained the license they're supposedly transferring because they never used the codes they are selling and, as you just said:

      The license is obtained by entering the code into a website

      Of course, then I read the rest of your post and realized that we're on the same side of this discussion. Still posting this because, well, you could have been ever slightly more right than you already were.

      --
      APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
    9. Re:I think it might stick by Falconnan · · Score: 1

      Everything you said. But also, the actual legal defense here is that, "Everyone is doing it, so you have to let it persist even if it harms consumers, even if it breaks right of first sale". Except, the entities doing it control vast sums of wealth and power, so yeah, they can do whatever they want.

    10. Re: I think it might stick by nzkbuk · · Score: 1

      The possible issue here is that this may constitute shrink wrapped licencing terms. By purchasing the combo pack you have purchased
      1x DVD
      1x Blueray
      1x Digital Code
      by First Sale Doctrine Disney cannot prevent you from splitting that combo pack and selling the DVD and Blueray's independently.
      Now comes the tricky question of the digital code. To make use of the code you need to accept additional terms and conditions which legally is known as a "Shrink Wrap Contract" which is unenforceable. Why shouldn't the average person on the street would think that the digital code should be considered the same as each of the physical disks.

    11. Re: I think it might stick by Quirkz · · Score: 1

      The workaround for that seems pretty simple; they only have to specify that your license for the downloaded movie is only valid so long as you have the original disc.

      I could kind of see that argument against resale, but your wording would apply if I broke or lost the disc, and that hardly seems fair. If my kid drops the disk and steps on it, there's no reason I should delete the digital version, too.

      --
      The Quirkz Handbook of Self-Improvement for People Who Are Already Pretty Okay
    12. Re:I think it might stick by dgatwood · · Score: 1

      Of course, the workaround is for Redbox to add one extra line to their terms of use:

      "By purchasing a digital license, you acknowledge that you have purchased a retail copy of the DVD from Redbox and resold that retail copy of the DVD back to Redbox for the purchase price minus the cost of this digital license."

      And then account for each digital license sale as a $5.01 sale and a $0.01 purchase. And Disney still fails at that point.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

    13. Re: I think it might stick by dgatwood · · Score: 1

      Of course there's a reason. Continuing to use the digital copy costs Disney potential sales for replacement discs. :-D

      Oh, you mean a good reason. Never mind.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

  3. We've been doing it wrong for so long... by Narcocide · · Score: 1

    ... we couldn't possibly stop now. Imagine the consequences!

  4. And there you have it! by jenningsthecat · · Score: 1

    Copyright misuse has such sweeping legal implications that an appeals court will be reluctant to apply it to a common movie industry practice.

    Would an appeals court be more concerned about the 'legal implications' aspect or the 'movie industry practice' aspect? I suspect the latter. And even if it is 'sweeping legal implications', I translate this as 'we've let copyright abuse continue, grow, and thrive for too long because we were lazy, corrupt, or disinterested. Now even we can see that it needs to be reined in, but we're scared senseless of the shitstorm that would result from pulling down the festering dungheap we've allowed to grow so high, so we'll continue to do nothing'.

    --
    'The Economy' is a giant Ponzi scheme whose most pitiable suckers are the youngest among us and the yet-unborn.
    1. Re:And there you have it! by dgatwood · · Score: 1

      The frequency at which a law is violated has no bearing on whether something is illegal or not. Don't believe me? Drive 10 over the speed limit past a cop, and then tell a judge that because the overwhelming majority of Americans speed, you shouldn't have to pay a fine for doing it.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

    2. Re:And there you have it! by Antique+Geekmeister · · Score: 1

      > The frequency at which a law is violated has no bearing on whether something is illegal or not.

      If I may say, it actually does. The existence of prevalent exceptions to a law can demonstrate selective enforcement of the law, which can itself be illegal.

    3. Re: And there you have it! by Anonymous Coward · · Score: 0

      It depends. I can argue that if everyone is driving 75 in a 60 MPH zone that driving 60MPH would be a safety hazard. There's data available to back this up too.
      Plus, on many roads here the speed limit is not related to road conditions but rather zoning and population density, even on interstates.
        I could argue that the application of a 55 mph speed limit on bits of I-75 violates the substantive due process clause as an invalid exercise of the state's police power because the state lacks a rational interest in regulating the speed of interstates based on population density. Since everyone drives 65+ that's obviously safe.
      I could also argue that since even the police officers drive at least 65 mph on the 55 mph bits that it's a case of entrapment.
      There are lots of ways to go about it. Whether or not you win is up to the judge you get though.

    4. Re:And there you have it! by Agripa · · Score: 1

      The frequency at which a law is violated has no bearing on whether something is illegal or not.

      The government regularly uses the "common use" argument to keep things not in "common use" illegal and then uses that as a justification to keep those things illegal.

  5. If I buy something of value by rsilvergun · · Score: 4, Insightful

    how do I not have a right to sell it? If Disney sells me a license, how do I not have a right to resell that license? And if I don't have that right then we're not even pretending to be a free market anymore, are we?

    --
    Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
    1. Re: If I buy something of value by Anonymous Coward · · Score: 0

      you sound like a goddamn buttcoiner

    2. Re: If I buy something of value by guruevi · · Score: 1

      Licensing is a contract where you agree to not sell the license. If you were free to resell licenses you've obtained then licensing would be pointless.

      Licenses are not tangible, it would be similar to selling ideas, you can't divest yourself of an idea, hence you cannot sell it because even if you could, you wouldn't lose access to it.

      --
      Custom electronics and digital signage for your business: www.evcircuits.com
    3. Re:If I buy something of value by Anonymous Coward · · Score: 0

      Yeah no, non transferable licenses are entirely legal and desirable for some scenarios. I don't agree with their usage here, but I also don't buy Disney movies because of it. You're entirely free to spend your money elsewhere, "free market" doesn't mean you get to tell Disney how they can sell their product.

    4. Re:If I buy something of value by Anonymous Coward · · Score: 0

      The market has been unfairly warped toward corporate interests for years. Pirate everything it's the patriotic thing to do...

    5. Re: If I buy something of value by Anonymous Coward · · Score: 0

      I don't think licensing is what you think it is. Try again, but this time do some research first before blankly asserting something that is so blatantly inaccurate.

    6. Re: If I buy something of value by Anonymous Coward · · Score: 0

      A "License" is a paid right to do something which, absent the license, constitutes a criminal offense, without penalty. That is, it is a "license to commit a criminal offense with impunity".

      How "license" applies to movies or software sales is beyond me. It used to be beyond the ken of Judges too, at least in the "Free World" (meaning not the United States).

    7. Re:If I buy something of value by Anonymous Coward · · Score: 0

      Yeah no, non transferable licenses are entirely legal and desirable for some scenarios.

      No, non-transferable contracts are entirely legal and desirable for some scenarios. Licenses are generally contracts of adhesion and as much as the courts have consistently allowed them, they're not desirable in almost any circumstance. In nearly every other circumstance, you're actually to actually sign something to prove you agreed to the terms. Even when those standard terms are abusive and there's little to no room to avoid or negotiate them, at least being presented with a contract before purchase with a clear opportunity to forgo the purchase would seem a legal (and moral) requirement.

      Seriously, copyright is a privilege granted to authors as a compromise to the authors because its meant to benefit society. The whole reason First Sale Doctrine was invoked--really conjured up by the courts--as a thing is precisely that copyright holders eventually regarded it as a real right and took to abusing it like every other property owner in the past has tried. It's little wonder that at some point the courts should again invoke copyright misuse for all the utter bullshit that's pushed today.

      Put another way, if a license to use is a thing that should be accepted and required, then we should just get rid of copyright all together. We will then leave the onus on Disney and others to prove that a license is required to use or copy works they supposedly created. Good luck with that, Disney.

    8. Re: If I buy something of value by Anonymous Coward · · Score: 0

      You said a license is a contract. Then you said it is a license to commit a criminal offense with impunity.

      A criminal offense is illegal and a contract that is illegal is INVALID so try again.

    9. Re:If I buy something of value by Anonymous Coward · · Score: 0

      It's not just Disney. You do have the right, but ultimately the industry as a whole wants to sell the same product to you at least 20 times in your lifetime, whether it is through software obfuscation, hardware obfuscation, planned obsolescence, or non-planned circumstance, it matters not. VHS-->DVD-->Blu-Ray worked well with this endeavor in providing upgraded experiences, but the difference now is purely format, and the long-term profits do not look good for recycled products. Thus they actually need piracy to exploit, and they have to take on every single frivolous law suit possible, because long term sustainability in terms of having control of the product is slipping.

    10. Re:If I buy something of value by Kjella · · Score: 1

      If Disney sells me a license

      A license is not a piece of property, it's a contract or in even more layman terms an agreement. And no, you can't just sell your end of an agreement. If you buy that disc, use the download code and the license agreement doesn't let you transfer it to anybody else you're stuck with it forever. You can sell the disc as you own that, but Disney don't have to offer the service to anyone else. I think that part is quite well settled, try selling your Steam account and you'll find it banned real quick. And I don't think anyone has won in court because you don't own the games so there's no right of first sale.

      That said, I don't think Redbox is breaking any laws, these codes are not licenses and they've not agreed to any terms yet as that would be when you use the download code. The copyright is exhausted when they sell the discs, unbundling and selling the parts is in general legal. It's possible that the buyers are violating the terms for using the download code if they say it's only valid if you're also the legal owner of the disc, but that's not Redbox's problem. I'm not sure how the theory of copyright abuse comes in, maybe it's that your rights to the download service terminates when you sell the disc which is using the license to restraint statutory rights. That should be illegal.

      --
      Live today, because you never know what tomorrow brings
    11. Re:If I buy something of value by josquin9 · · Score: 1

      I'm surprised Disney doesn't have a separate package for Redbox that omits the digital license. A Redbox ad in the previews section of those disks should be enough of an enticement for them to be willing to select those over the standard ones. .

    12. Re:If I buy something of value by ChatHuant · · Score: 1

      A license is not a piece of property, it's a contract or in even more layman terms an agreement. And no, you can't just sell your end of an agreement.

      And yet mortgages, which are, as far as I can see, also contracts, are bought and sold routinely. My mortgage for example was sold twice, and I was never consulted at my end of the agreement. There are whole industries built around the buying and selling of contracts - futures, insurance, student loans, mortgages.

    13. Re:If I buy something of value by Kjella · · Score: 1

      And yet mortgages, which are, as far as I can see, also contracts, are bought and sold routinely. My mortgage for example was sold twice, and I was never consulted at my end of the agreement. There are whole industries built around the buying and selling of contracts - futures, insurance, student loans, mortgages.

      If you can get the other party to agree to it, sure. If you got the market power to put in your boilerplate agreement that you can transfer the loan then you can. That is if it's actually sold and not pass-through, like I can quasi-sell that debt for $x now and agree to forward all future payments to you. As long as you remain a legal entity in the middle you don't need permission for that.

      --
      Live today, because you never know what tomorrow brings
    14. Re:If I buy something of value by Anonymous Coward · · Score: 0

      >A license is not a piece of property, it's a contract or in even more layman terms an agreement.

      Then why do I pay sales tax on it?

    15. Re:If I buy something of value by Anonymous Coward · · Score: 0

      Another question, why do they say "Buy now" and "Own it now"? If the ad and the product contradict, then I can force you to change things to suit the ad, or give me a total refund. This is basic consumer law. Ergo; I buy it now and thus I own a product, not a license, and am free to sell it as I fucking please.

  6. This makes no sense. by ZorinLynx · · Score: 4, Insightful

    Redbox purchased the DVD or Blu-Ray. They paid the same amount that a regular person would when buying the disc. The code can only be used once, so it's not like this is enabling mass piracy by everyone who rents the video or anything. What's the big deal?

    If Redbox didn't sell the code, the first person to rent the disc would get it anyway and probably use it. It's not like Disney is losing any money from this.

    They need to chill out and stop trying to stop people every time they find a way to do things that they did not anticipate when there isn't even a harmed party.

    1. Re:This makes no sense. by Anonymous Coward · · Score: 0

      I doubt the 1st user to get the disc would ever get the code. Redbox doesn't distribute discs in their retail clam shell. They would take up too much room in the kiosks. All the discs are opened and put into smaller redbox clam shells.

    2. Re:This makes no sense. by Anonymous Coward · · Score: 0

      The first Redbox customer would never get the code. All the DVDs are put into Redbox's own specially designed cases that only hold the DVD.

    3. Re:This makes no sense. by swb · · Score: 1

      I read where Redbox was selling the codes at the kiosk in addition to renting the discs. Disney sells the combo for $20. Redbox makes $100 renting the disc (I made that up, theoretical lifetime income from a specific disc) and another $8 from selling the code.

      Disney is super torqued that Redbox is making $80 (rental - disc cost) off the rental -- that's 4 discs Disney didn't sell and they don't see any of the $80 in rental income. Insult to injury is Redbox selling the codes as well, *another* $8 Redbox makes that Disney doesn't see a dime of. The download code is just an extra irritant, not the primary economic issue.

      TL;DR is that Disney is doesn't want anyone watching one of their movies without getting a cut of what every viewer had to pay to watch it. Disney just wants to be paid every time someone watches a Disney movie. The idea that someone can beat the system -- pay Disney for their content *and* then make money off it without paying Disney any more money is what makes them nuts.

      IIRC, VHS tapes were all $80 at first release to "solve" this very problem -- it was a video rental tax where they expected VHS rental places to buy the VHS for $80 knowing full well that the store would rent it a bunch of times and make back the $80 cost. The $80 was the studio's cut of future rentals.

      I assume that the collapse of 98% of the rental market has altered that model and discs now go on sale at more reasonable prices at initial release because nobody will buy them at the initial high price and studios like Disney no longer have a mechanism for extracting rental profits from rental businesses.

    4. Re:This makes no sense. by Anonymous Coward · · Score: 0

      I'm more curious about the fact that Redbox is apparently renting out retail-bought DVDs.

      I'd think that would be much more clearly illegal than whatever this download code thing is.

      captcha: wrapping

    5. Re:This makes no sense. by Anonymous Coward · · Score: 0

      Redbox has operating costs. The redboxes take electricity and space. Theft, depreciation, vandalism happen. Those dvds have to be purchased, and placed in rental cases, and loaded into the redbox. The software has to be written and updated. The employees need benefits. Sometimes a move isn't popular and the discs don't rent, or they overestimated and purchased too many.

      Disney is able to set up its own rental service if it wants to. They can raise their prices if they want to. They could even start renting disc before they start selling discs (or even not sell discs). That rebox is making too much money off Disney's movies while operating within the law is a very weak argument in a democratic capitalistic society. (Not that I'm happy Disney's lobbying for copyright term extension).

      I'm glad that people are able to rent property for money (I live in an apartment). Times have changed some from me letting you rent my Picasso, or Picasso print, but the concept remains the same.

      Why do you care about Disney's income? Do you own Disney stock or are you a paid shill or why?

      If Disney wanted the box to contain only 1 copy of the movie, they should have only put 1 copy in the box. If they want the digital version inseparably tied to the disk, I have a simple tried and true solution: Put The Digital Version On The Bloody Disc.

    6. Re: This makes no sense. by ZorinLynx · · Score: 1

      It's already been tested in court, way back in the videotape era. When you rent a video, nothing is being copied, so copyright law doesn't apply.

    7. Re:This makes no sense. by Anonymous Coward · · Score: 0

      Disney is free to open an operate thousands of kiosks that rents disks if they want to capture that profit.

  7. Well Fuck Me Up The Ass by Frosty+Piss · · Score: 2, Informative

    Copyright misuse has such sweeping legal implications that an appeals court will be reluctant to apply it to a common movie industry practice.

    The Appeals Court: "It's so common that consumers are getting fucked up the ass, we see no compelling reason to change this established practice."

    --
    If you want news from today, you have to come back tomorrow.
  8. eh? by Anonymous Coward · · Score: 1

    I must have missed the schoolhouse rock episode where we learned that if companies are doing something for a long time that this becomes the law

    1. Re:eh? by Highdude702 · · Score: 1

      Nothing like a bill sitting on the steps of the house.

    2. Re:eh? by Rakarra · · Score: 1

      Nothing like a bill sitting on the steps of the house.

      Or getting kicked down the steps of the capital building.

  9. MSDN Subscription by Anonymous Coward · · Score: 0

    In 90's I used to have MSDN subscription which included all latest MS software including OS, Office etc. The license explicitly made it single user license. I can't keep English version of Office for me and sell French version. Of course this was a licensed software which is much different than movie DVD. However, there were few DVDs that I purchased had two versions: 4:3 and enhanced 16:9 version. Since the 16:9 will show black bands on 4:3 TV and vice versa, some studios included both in single package. The note in the disc said, the discs cannot be sold separately. Based on such common practices prevalent in industry, I doubt this will survive.

    1. Re:MSDN Subscription by jordanjay29 · · Score: 1

      They can try to enforce that, but right of first sale means the consumer can resell the item without conditions after purchase. As long as the disks work independently, enforcement of that license is tricky at best, illegal at worst.

    2. Re:MSDN Subscription by Anonymous Coward · · Score: 0

      Unrelated. You had a MSDN subscription. You agreed to a license as part of spending your money. You could read what terms were offered and you knew you were doing that and then you made a decision about whether or not to pay.

      Redbox didn't do anything like that. Redbox never licensed anything. There were no contracts. Redbox bought physical items (totally unlike what you did) and sold physical items (totally unlike what your license said you couldn't do). They also didn't copy anything.

      They never had any license to violate, and they never did anything to run afoul of copyright law. It has nothing in common with your totally-difference licensing situation. The closest thing you did in your life to what Redbox did is this: you bought a loaf of bread. You took a couple slices from the loaf and gave them to your wife and she made a sandwich and ate it. The baker didn't ask you to sign anything. The grocery store didn't ask you to sign anything. Therefore, you never needed to agree to anything, other than handing over the money at the grocery store's cash register. That was the whole agreement: pay money for loaf of bread.

      Your DVD situation had a note. A note isn't a contract. Did you know about that "note" before you bought it? Does the copyright holder have a copy of some contract that you sent to them, or at least some sort of record that you agreed? Do they even know your name? The DVDs might also have a "note" inside them where Robocop tells someone "let the woman go; you are under arrest." Did you let the woman go or did you violate the Rococop lice-- wait .. oh, right: content inside the package isn't the same as terms for buying the package. That "note" is just something you bought. It's a communication from the publisher to you, but it's an attempt at persuasion, not a condition. It's not something you signed.

      How is this not obvious to everyone? YOU DID NOT READ IT OR EVEN KNOW ABOUT IT WHEN YOU BOUGHT IT. There is no chance that it could possibly be a license. Did the cashier have you sign something at the register and put it aside to mail to the copyright holder?

      You'll know when you're licensing something, because you'll be reading legalese and making a "should I do this?" decision right before you spend your money. 100% of contracts work that way and there's never been an exception. How could there be? You can't agree to something that you've never had a chance to know about.

    3. Re:MSDN Subscription by Anonymous Coward · · Score: 0

      Perhaps you haven't bought any software on disk. You don't get to see the license until you have broken seal and after that you can't return it. Courts have rules multiple times that such shrink-wrap software license is valid. The download part is a license which Disney can change anytime. E.g. Asking customer to enter some text from the DVD and thus the buyer of the key would be left high and dry. So even if Disney loses case, customers will not win. There is nothing in the physical item you purchased says that you can use code independent of the disk.

  10. Dupe by Anonymous Coward · · Score: 0

    https://entertainment.slashdot...

  11. No difference, except in expectations. by SeaFox · · Score: 1

    If the ruling were upheld on appeal, it would have sweeping implications. It could potentially force Hollywood studios to stop bundling digital download codes with physical DVDs and force video game companies to rethink their own practices

    IANAL, but I don't see how this will "force" Hollywood to stop giving people digital download codes with discs. They already sell combo packs of Bluray + DVD, or 4K Blu-ray + 1080p Blu-ray, and sometimes all three, and people can always resell one or the other discs separate of the package. The code is just another portion of the package in this case, and the consumer will be free to sell it now (as they already are doing -- not just Redbox).

    1. Re:No difference, except in expectations. by Anonymous Coward · · Score: 0

      They could probably just start doing the common practice the software industry does. Put the download code in a sealed envelope with an EULA on it. Or maybe even both the download code and disc. Would still look like a common DVD/Bluray on the outside, Open the case and the download code certificate and disc are sealed up in an envelope.

    2. Re: No difference, except in expectations. by Anonymous Coward · · Score: 0

      Can't do that.
      You are prohibited from changing the terms of a sale after it has been completed.

      I don't mean 'You get in trouble for doing it', I mean 'The amended terms are void'. The EULA would be a decorative piece of paper for all it would mean.
      Software has traditionally been considered a specialist product where the buyer has a reasonable understanding that there are other terms, and even there EULAs haven't held up. Movies are clearly a consumer commodity right now, and right now is when they're implementing this change.

    3. Re:No difference, except in expectations. by jabuzz · · Score: 1

      Or just print the code on the DVD itself. The issue Disney fell foul of is that the code was on a separate physical piece of paper, which allowed Redbox to sell the separate physical item separately. Had the code been printed on the DVD/Bluray itself then Redbox would not have been able to resell the physical piece of paper with the code on. Serves Disney right for not reading the law and being cheapskates by using a separate piece of paper rather than printing on the physical disc.

    4. Re:No difference, except in expectations. by BronsCon · · Score: 1

      Would that mean I could return it if I don't agree with the terms, so long as the envelope is unopened? If so, I'm all for it.

      --
      APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
  12. Copyright abuse by Anonymous Coward · · Score: 0

    So, if copyright abuse invalidates the copyright. Does that mean as of right now, until an appeals court possibly overrules the ruling. None of Disney's films where they have used this practice of including a download code are under copyright anymore?

    If so, fire up bit torrent, there's a bunch of public domain Disney movies out there right now!

    1. Re:Copyright abuse by fibonacci8 · · Score: 1

      It means that the claim of copyright on the "download code" is invalidated. But nice attempt.

      --
      Inheritance is the sincerest form of nepotism.
    2. Re:Copyright abuse by Lunix+Nutcase · · Score: 1

      No, it does not. This post is meant to be intentionally stupid, right?

  13. Download codes? by WaffleMonster · · Score: 1

    Never understood why DVDs and Blu-Rays come bundled with download codes.

    The content is literally on the disc you purchased why bother to enter a code or download it from the Internet (I assume with strings attached) when you can just copy content of disc and play it on anything you want?

    1. Re:Download codes? by ClickOnThis · · Score: 1

      Never understood why DVDs and Blu-Rays come bundled with download codes.

      The content is literally on the disc you purchased why bother to enter a code or download it from the Internet (I assume with strings attached) when you can just copy content of disc and play it on anything you want?

      I've never actually used a download-code, but I imagine they are one-use-only. Whereas, if they let you copy the DVD/BluRay then I would assume someone could find a way to copy it an unlimited number of times.

      --
      If it weren't for deadlines, nothing would be late.
    2. Re:Download codes? by suutar · · Score: 1

      because in theory you're not allowed to copy the content of the disc?

    3. Re:Download codes? by drinkypoo · · Score: 1

      Never understood why DVDs and Blu-Rays come bundled with download codes.

      It solves the problem of "how do I watch this disc on my laptop which has no optical drive", and that's about it. Still, it does that, for some reasonable value of "solves".

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    4. Re:Download codes? by mark-t · · Score: 1

      I always assumed that it was most practical for devices which don't have DVD's, like phones or tablet devices.

      --
      File under 'M' for 'Manic ranting'
    5. Re:Download codes? by Highdude702 · · Score: 1

      Whereas, if they let you copy the DVD/BluRay then I would assume someone could find a way to copy it an unlimited number of times.

      Im rather sure he is referring to the fact that anybody with a computer and compatible optical drive could do that, regardless of what disney or anybody says. It is not illegal to make a digital copy of something you own as a backup afaik, so long as you dont share it. Their encryption has been broken for some time. You can take any BD or DVD with a few free programs make perfect copies in multiple formats to be played on any device you can imagine.

    6. Re:Download codes? by Stan92057 · · Score: 1

      I Just bought the Justice league bluray from VUDU it allowed me to instantly watch the movie which isn't even being sold on DVD till march 13th which will be also be shipped to me from walmart. I saved 2 bucks as that the cost of using the code that comes in the box PLUS the account doesn't cost me one red cent to watch those movies.I have 12 movies on a digital service SO IMO Redbox shouldn't be allowed to resell those codes they were never meant to be resold they were to be used as i use them pay a fee to some service for a digital copy i can watch on any device i want too.How they make money is beyond me 2 bucks one time sale and be able to watch all those movies FREE?? I can see how people abuse this, buy Hard copy DVD use code.....sell DVD still have digital copy to view any time forever people want.People shouild beable to sell the DVD but they shouldn't be able to keep a digitsl copy either....Redbox will loose at some point IMO.

      --
      Jack of all trades,master of none
    7. Re:Download codes? by Anonymous Coward · · Score: 0

      Disney and other distributors are trying to stop people from owning what they buy. Part of ownership is the right to resell. You may be happy with your digital downloads, and more power to you. It may even be an industry standard to bundle download codes with discs. They're not doing it for you though. They're doing it so they can make more sales, and are perfectly willing to abuse the legal system to prevent you or anyone else from cutting into their potential profits.

      Fortunately the courts rule on the law, not on your opinion or on whatever practices the industry thinks will net them the most profits.

    8. Re:Download codes? by Voyager529 · · Score: 1

      Never understood why DVDs and Blu-Rays come bundled with download codes.

      The content is literally on the disc you purchased why bother to enter a code or download it from the Internet (I assume with strings attached) when you can just copy content of disc and play it on anything you want?

      1. As others have pointed out, I would argue that the number of devices used to watch movies which do not have an optical drive exceed the number of devices which do. Download codes solve that problem for those use cases.
      2. The MPAA long ago made it clear that they desired a world where DVD ripping wasn't a common practice, despite the fact that CD ripping was commonplace. "Just copy the content of the disc" is something that the MPAA has technological measures, copyright law, and case law on their side. AnyDVD may well be in a place that is difficult to prosecute, rest assured that the only reason this is the case is because it remains a niche.
      3. The MPAA also learned that convenience wins over liberty. Vudu, Ultraviolet, and the iTunes codes are "take picture of code with phone, download/stream movie". For most people, this experience is "good enough", such that "cross compatible MP4/MKV files" aren't an advantage to most of those people, especially when encoding takes hours on their not-i7 processors and the purchase of a USB optical drive is likely needed.
      4. Download codes give the MPAA a far greater amount of control. Passing files around is impossible (and if it's attempted it's trivial to figure out the source), sharing through Plex libraries is impossible, and in the case of the services where streaming is used, they get viewing statistics and user profiles on top of it.

      And those would be the reasons I can think of off the top of my head.

  14. Market-Based Solution by hondo77 · · Score: 1

    Disney just needs to sell discs (and only discs--no download codes or even retail cases) to Redbox for at least $4 less than what they're paying now. Problem solved?

    --
    I live ze unknown. I love ze unknown. I am ze unknown.
    1. Re:Market-Based Solution by Mal-2 · · Score: 2

      Disney would prefer to forbid Redbox from buying the discs at all, but haven't yet come up with a method for doing so.

      --
      How is the Riemann zeta function like Trump rallies? Both have an endless number of trivial zeros.
    2. Re:Market-Based Solution by Cajun+Hell · · Score: 1

      That's easy to do. Just stop selling discs.

      If that's too extreme, then just starting Knowing Your Customer. Have direct sales instead of selling through intermediaries. The upside of this is that they could also have sales contracts, where the purchaser agrees to a license as a condition of obtaining the disc. Do that and everything is solved. It's how every other contract-based business works. Maybe Disney should stop trying to be a weird, shady exception.

      --
      "Believe me!" -- Donald Trump
  15. I'll be using this in a future argument by sixsixtysix · · Score: 1

    Case 1: I have access to anything from OTA to the biggest CATV package. I buy a dvr. I edit out all the commercials and have a nice DRM-free copy.>br> Case 2: I have access to anything from OTA to the biggest CATV package. Someone else does the legwork, for free, even. So long as I have access, I download that DRM-free copy.

    Nothing in the "Betamax case" could plausibly explain why only one of these 2 actions is legal, given that the end result and process are effectively identical except for trivial access-verification differences. Such a requirement completely fails to stand up to the slightest bit of logical scrutiny, and any legal code that would result in such an outcome would have to be patently absurd.

    --
    ...
    1. Re:I'll be using this in a future argument by Anonymous Coward · · Score: 0

      But there is a difference between the 2. In the first case, you only modified the copyrighted work. In the 2nd case, there was a distribution of a derivative work. Courts take a dim view of distribution of a derivative without a license for that derivative.

  16. Ok ok. by Anonymous Coward · · Score: 0

    You really have to wonder what Disney's lawyers were smoking to have believed that they could pull this off. IMO, it isn't just clear-cut legally; it is *laughably* so.

    So what dollar amount are we talking about here? Anybody else whose favors would need securing?

  17. Licensing Content vs. Distribution Medium by danjump · · Score: 1

    The important high level idea here is the difference between granting a license to the underlying media content, vs granting a license separately for each medium of distribution.

    This is an example of how hollywood is trying to have it both ways. I buy DVD's, and I'd like to rip them to my PC to host a digital version for myself on plex or kodi. Technically, using a decoder to rip the DVD is illegal - I don't have the legal right to duplicate the content for myself in a different medium. My license is only for "Movie X on DVD", not "Movie X generally" (generally as in - the underlying media content independent of distribution medium).

    In Disney's current fight, they are trying to say that they sold redbox a license for "Movie X generally", and that license was fulfilled in two separate mediums (physical DVD, and digital download). If that were true, then clearly redbox would be violating it's single license for "Movie X generally" by giving one of the distribution mediums to someone else. Unfortunately for Disney, hollywood has been greedy and wanted to cash in separately on each distribution medium so they've established a system where effectively they grant licenses only on a per-medium basis.

    I wish that Disney got what they wanted and a license was for the underlying content, not per distribution medium. Then I could legally digitize/stream my DVD's and I wouldn't have to put up with buying ebooks from amazon that I can't export to pdf or let a computer synthetically read aloud for me (which amazon restricts because they want to sell you the audible copy also).

    Publishers are reaping what they have sown - you can't charge people separately for each distribution* medium then get mad when people re-sell each medium separately. (* of course in this instance they didn't charge separately because they bundled the digital download. In a non-legal sense, it's fair then for disney to win this case. But in a legal sense, they've established this crappy system and now they are justly suffering it's results)

  18. what is the code for by pD-brane · · Score: 1

    What does this download code do? Do you need to download something before you can watch a DVD.

    Sorry, I do not buy DVD Videos, so I am at a loss here.

    1. Re:what is the code for by pD-brane · · Score: 1

      Nevermind, it is in the article:

      When you buy a Disney DVD or Blu-ray disc, it will often come bundled with a special code that can be used at one of two Disney-sponsored websites, ... to obtain a digital copy that can be viewed on PCs and mobile devices.

      Apparently people don't really own videos anymore.

  19. I just checked the RedBox site. by pecosdave · · Score: 2

    Cars 3 was right at $20.

    It's on Amazon right now BluRay, DVD and the code for the same price. (oddly, at the time of this post the combo pack I just mentioned is $0.19 cheaper than just the DVD).

    I looked at a couple of other Disney releases on their site, with similar outcomes.

    --
    The preceding post was not a Slashvertisement.
  20. And I emailed I don't agree not to sell it. by Anonymous Coward · · Score: 0

    And in this particular case, the company selling the code never accepted anything, since the code is NOT THE LICENSE.

  21. Or in other words by Anonymous Coward · · Score: 0

    there's a shit ton of cash in abusing the copyrights, so disney et al will win their complaint, since they have the cash and want more.