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from the live-by-the-sword,-die-by-the-sword dept.
Disney's attempt to prevent Redbox from buying its discs for rental and resale may have blown up in the House of Mouse's face. The Hollywood Reporter describes how District Court Judge Dean Pregerson sided with Redbox to shoot down a Disney-mandated injunction. In addition, Pregerson contended that Disney may itself be misusing copyright law to protect its interests and its own forthcoming streaming service.
If you're unfamiliar with the backstory, Redbox didn't have a deal in place to procure Disney DVDs and Blu-rays for its disc rental kiosks. So, the company simply bought the discs at retail, often snagging combo packs that include a DVD, Blu-ray and a download code for the movie as well. Redbox would then offer up the discs for rental, and sell on the codes at its kiosks for between $8 and $15.
Such a move enraged Disney, which includes language in its packaging and on the website demanding that users must own the disc if they download a copy. But this is where Pregerson began to disagree, saying that Disney cannot dictate what people do with copyrighted media after they have bought it. Specifically, that there's no law, or explicit contract term, that prevents folks from doing what Redbox did with Disney discs.
Source: https://www.engadget.com/2018/02/22/disney-redbox-lawsuit/
(Score: 5, Informative) by AthanasiusKircher on Saturday February 24 2018, @12:24AM (1 child)
Actually, that's NOT what Disney was trying to claim at all. More accurately, you were sold "access" to the download, but only if you owned the DVD physical media. To put it another way, you were sold a physical object, but were only granted a license to the electronic download if you agreed to specific terms.
(Also, the "piece of paper" is a red herring here. The judge explicitly rejected Redbox's argument that the "piece of paper" was a separate physical object that effectively could be resold separately without any copyright significance. It only had value, according to the ruling, due to its relationship to a potential downloaded copy.)
No. It'd simply mean that the judge adopted a more permissive interpretation of the way you agree to contracts when you open a box.
Unfortunately, the Engadget article, along with the summary posted here, completely misunderstands the nature of the ruling, which isn't much about copyright law at all. It's about contract law.
Most of the ruling (complete version found here [documentcloud.org]) is spent with the judge thinking through the nature of "shrink-wrap licenses" and "box-top licenses." A "box-top license," according to the ruling, specifically creates an enforceable legal contract that obtains if you open the box. It explicitly states the terms of the contract, that you accept said contract upon opening the box, and preferably also the actions by which you can refuse to accept the terms. A "shrink-wrap license" can theoretically do a similar task, but the wording of Disney's language was not explicit or clear enough to constitute a legal contract, in the opinion of the judge.
Specifically, the language "Codes are not for sale or transfer" is not sufficient to create a contract because it did not specify what action the user must take to accept those terms. The judge cites California precedent that states that "silence" is not generally sufficient to constitute acceptance of a contract, and since Disney didn't say, "If you open the shrink wrap/box, you accept these terms," there's no evidence that Redbox agreed to those terms. The judge also notes that some of the other language on the box states things that are obviously unenforceable legally, giving credence to the argument that the box is merely stating Disney's "preference" for the actions of the consumer, rather than a legal contract.
The only place that a copyright issue came into the ruling against Disney was in a secondary argument about how the "Codes are not for sale or transfer" and guaranteeing that someone using the code is "the owner of the physical product that accompanied the digital code at the time of purchase" imply that there are restrictions on how consumers could resell the physical media while retaining access to the digital product. The judge argues this is an inappropriate restriction that tends to overstep on copyright, since consumers are generally free to resell or redistribute physical media, and this clause effectively decreases their value. (According to a footnote, Disney at oral argument backtracked on this point, and attempted to say one could resell the codes ALONG WITH the physical media and thereby stay in compliance with copyright law, in which case the judge said the ruling about the vague contract already mentioned still obtains. Thus, the copyright issue is clearly secondary to the contract dispute.)
In fact, despite this digression into copyright law, the judge goes on to explicitly state that the first-sale doctrine [wikipedia.org] CANNOT apply to the digital "copy" in this case, since the digital copy does not come into existence until after the purchaser uses the code:
So, the judge explicitly states that Redbox failed to make a convincing legal argument that the (potential) download has copyright significance.
TL;DR -- According to this preliminary ruling: Consumers do NOT necessarily have the freedom to do anything they want with a license code for a download -- Disney just wrote a really poorly worded shrink-wrap contract. The judge did not preclude the idea that they could write a better contract that in fact restricts downloads the way Disney wants to, perhaps as long as it allows said download codes to transfer along with future sales of the physical media.
(Score: 0) by Anonymous Coward on Monday February 26 2018, @10:28PM
I much prefer the article summary. Your's is a too depressing slap in the face after reading the article summary.