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Public performance copyrights: a guide to public place analysis.

I. INTRODUCTION(**)

"An' there began a lang digression About the lords of the creation."(1)

"`Cause, remember, no matter where you go ... there you are."(2)

Dip Diddler, an average guy, has just latched onto a couple of computing's latest fads: the ability to play and save music and movies on his DVD-equipped computer. Dip copies all 500 of his music CDs onto his laptop computer and makes a big ol' portable jukebox. Dip likes to rent DVD movies from his local video rental store to watch on his laptop on the way to work on the train. Strangers are often interested in the movies. Dip, being a friendly sort, lets them watch along during the train ride. When Dip gets to the office, he decides that he wants to copy all of the music on his laptop into his personal account on his work computer. His personal account, however, is really on a network server. In the midst of playing twenty or so songs for his officemates, Dip dances about foolishly, shaking in interesting rhythms, finally dropping down into a full alligator thrash to "In the Middle of the Road" by the Pretenders to the delight of all his officemates. Suddenly, FBI agents, who were secretly monitoring Dip's every action throughout the day, and every digital blip in the country, with their super snooper secret poop scooper chips, break down the doors and slap the cuffs on Dip. They take him to a cell where Bubba (who apparently is the prison Buddha, being in all prisons at all times) awaits. Dip's crime: Sections 101 and 106 violations, ma'am. He was caught performing in public.

Cher, an officemate of Dip's, is shocked, having watched all of the foregoing transpire. She is a super savvy, suave, cyber freak and knows her public performance law. Cher thinks all capitalist pigs are insane for thinking that they can hog up all ideas in their decadent imperialist bundles of intellectual property. She is also quite smitten with "the Diddler." As a not-so-silent protest, Cher walks up to Dip's laptop, unplugs it from the network and plays "Stand By Your Man," smugly defying the Feds. One agent flinches and walks up to her saying, "Why, I oughta ... "but another holds him back. "Cool it, man, cool it. She's playing you, man. Don't lose it. Remember your 101." Cher kisses Dip and whispers "think of me." Then she flashes a smug smile at all the departing Feds, feeling victorious.

Thereafter, Cher has everyone in the office bring down all of their music CDs, copying all of them onto a standard computer with speakers in a central area and uses it as a jukebox to play music in the background while people do file work. Sometimes she goes out to the public square and plays Dip's laptop boom box, forming Conga lines dancing to "Come On Ride The Train, It's A Choo Choo." Cher also sends pictures and letters to the Feds every day, showing how she and all of her friends play Dip's jukebox. Some of the eight-by-ten glossies sport her sticking out her tongue. But all of this can't mend her broken heart caused by losing Dip.

Why did Dip get slammed while Cher did not? It all has to do with public performances.(3)

A. Problem Defined

Amazingly, a fundamental aspect of copyright law has yet to be resolved. Specifically, regarding public performance rights, the definition of what constitutes, a "public place" is unsettled; the courts splinter somewhat haphazardly when construing the metes and bounds of a public place with regard to public performances.(4) The inability to determine whether or not the performance of a copyrighted work took place in a public forum inhibits public performance copyright infringement analysis. As content delivery systems proliferate throughout the world, public performances of copyrighted works increase. This increasing import and use of the public performance right, coupled with the lack of clarity as to what binds and constitutes a public place for such performances, leaves both copyright owners and the public in the lurch.(5)

B. Framework

The purpose for going through the relevant public performance provisions and case law is to provide a synopsis of public place analysis. Each provision and case will be individually examined and the elements of public place analysis shall be framed into an overall public place constitution heuristic.(6) This heuristic will be embodied in various tables detailing the development of the current standard and containing a decision tree analysis flow chart of this standard. This article will, hopefully, convey the muddy and, at times, tenuous development of public place analysis. Moreover, it will present a heuristic that will explain and harmonize the apparent discord prevalent in this area of law.(7)

Part I, section C of this article establishes my thesis. Section D then summarizes the findings, explaining what should embody the state of public place constitution law in a decision tree analysis flow chart.

Part II of this article explores the legal analysis of public place constitution. Section A provides legal analysis with a short, general background regarding public performance copyrights. Part II continues by examining how public place constitution is affected by: transmissions of performances to the public (Section B); statutory ambiguities (Section C); how those ambiguities allow for judicial predetermination by merely shifting the temporal and spatial analytical focus (Section D); legislative history (Section E and throughout later sections); the nature of the place standard for public performance analysis and its components (Section F); and a harmonization and time line of the case law (Section G). Throughout Part II, a heuristic will be developed and embodied in a decision tree analysis flow chart for performing public place analysis.

Finally, Part III provides a prognosis regarding the developed heuristic. The prognosis will evaluate the heuristic in varying situations in Section A; evaluate the significance of the heuristic to businesses in Section B; examine potential problems the heuristic may face from advancing technologies in Section C; and conclude in Section D.

C. Thesis

It is my contention that the courts have unwittingly established the metes and bounds of what constitutes a place for the purposes of a public performance. They have generated these parameters through various and apparently conflicting holdings by courts of appeals for several circuits. There are seemingly conflicting tests for determining if a place is public and thereby subject to an author's public performance right.(8) However, I believe these variances are reconcilable and actually form a coherent heuristic to determine the place of performance.(9)

D. Summary of Findings

The heuristic that determines what constitutes the metes and bounds of a place such that it is a public place within the context of public performance rights, and therefore, subject to an author's public performance right, is a composite of the statute and case law. The test is based upon a determination of the nature of the place in question and is embodied in the chart below.(18)

This chart embodies a decision tree analysis that will guide the practitioner to the proper determination of whether a place is public or not. For purposes of this thesis, the major components of this analysis are whether there was a reasonable expectation of privacy, and whether there was a lack of control in exercising a performance. The outcome to those questions will determine how a court will look upon a place in an effort to determine if it is of a public nature.

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Depending upon the outcome of those questions, the court will either look to an entire establishment in determining if it is open to the public, e.g., an entire hotel; or it will focus on a more finite area where a performance is taking place, e.g. a single hotel room. The practitioner will find that this shift in focus is generally a determinative factor in deciding if a public performance took place.(12) Finally, after the proper focus is established, the nature of the location will be determined; i.e. is it open to the public or not.

II. LEGAL ANALYSIS: CONSTITUTING A PUBLIC PLACE

A. Background

1. Exclusive Right

An affixed(13) expression of an original work of authorship, i.e., the creation of a work of art,(14) results in a work protectable by 17 U.S.C. [sections] 106 of the Copyright Act and entitles an author or owner of the work to six basic exclusive rights:(15)
 [sections] 106. Exclusive rights in copyrighted works

 Subject to sections 107 through 121, the owner of a copyright under this
 title has the exclusive rights to do and to authorize any of the following:

 ...

 (4) in the case of literary, musical, dramatic, and choreographic works,
 pantomimes, and motion pictures and other audiovisual works, to perform the
 copyrighted work publicly; and

 (5) in the case of literary, musical, dramatic, and choreographic works,
 pantomimes, and pictorial, graphic, or sculptural works, including the
 individual images of a motion picture or other audiovisual work, to display
 the copyrighted work publicly; and

 (6) in the case of sound recordings, to perform the copyrighted work
 publicly by means of a digital audio transmission.


The above subsections of the Copyright Act are a means for an owner of a copyrightable work to prevent others from reproducing, making derivatives, distributing, performing, or displaying their works. Sections 101 and 106 of the Copyright Act together define when and how authors may assert their exclusive rights. However, part of this "when and how" depends upon where the works are located. In particular, an author's ability to assert exclusive rights over the display and performance of his or her work, i.e., [sections] 106, subsections (4), (5) and (6), depends upon the work being located in a public place.(17) Thus, place constitution becomes a factor in infringement analysis.(18)

2. Factors for an Infringement

Section 501(a) of the Copyright Act states that "[a]nyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 ... is an infringer."(19) The copyright holder may seek actual or statutory damages,(20) injunctive relief,(21) and costs of the suit, including reasonable attorney's fees.(22)

The various federal circuit courts have varying, but generally similar, standards of infringement analysis for copyright owners whose exclusive right to authorize a public performance has been violated.(23) A plaintiff must be prepared to establish the following five elements to sustain an infringement action:

(1) the originality and authorship of the compositions involved;

(2) compliance with the formalities of the Copyright Act;

(3) that plaintiffs are the proprietors of the copyrights of the compositions involved;

(4) that the compositions were performed publicly; and

(5) that the defendant had not received proper authorization for performance of the composition.(24)

Discerning the place of performance is, therefore, a staple consideration in each and every public performance infringement case--place constitution is a requisite.(25)

3. Performance and Display Defined

Public place analysis, i.e., prong (4) of the five infringement factors listed above, simply determines where a "public performance" or a "public display" takes place.(26) The difficulty in answering such a seemingly simple question stems from the lack of clarity in the statute.(27) The analysis begins by first, determining if a performance or display took place, and then whether that performance or display was public.(28) Unfortunately, [sections] 101 of the Copyright Act does a poor job of providing a mechanism for the second part of the analysis, thereby making it difficult to determine when something is public.(29) Fortunately, [sections] 101 does treat the first half of the analysis by specifying the meaning of a "display" and "performance" clearly:(30)
 To "display" a work means to show a copy of it, either directly or by means
 of a film, slide, television image, or any other device or process or, in
 the case of a motion picture or other audiovisual work, to show individual
 images nonsequentially....

 To "perform" a work means to recite, render, play, dance, or act it, either
 directly or by means of any device or process or, in the case of a motion
 picture or other audiovisual work, to show its images in any sequence or to
 make the sounds accompanying it audible.(31)


The various federal circuit courts follow these standards with regard to performance and display analysis.(32)

Another way a public performance may take place is through a transmission, which is perhaps the most straightforward portion of public place analysis.(33) However, the difficult question remains as to when a performance becomes public.

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B. Transmissions, Making Performances Public

It is my desire to highlight only a few areas that may affect public place analysis. However, this article will not exhaustively cover the topic of transmissions. The good news is that most times, transmission analysis is a piece of cake in the context of public place analysis.

1. The Statutes, We're Getting Somewhere

As is always the case, it is best to start with the statutes. The statute defines the act of transmission: "To `transmit' a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent."(35) The statute defines a transmission in the context of a public performance, stating:
 To perform or display a work "publicly" means--

 ...

 (2) to transmit or otherwise communicate a performance or display of the
 work to a place specified by clause (1) or to the public, by means of any
 device or process, whether the members of the public capable of receiving
 the performance or display receive it in the same place or in separate
 places and at the same time or at different times.(36)


The statute is rather broad and complete in its coverage. We shall see that merely sending performances within a single facility is enough to trigger and create a transmission.(37) On the basis of the statute, courts have found that a transmission takes place when a central video system communicates a performance to another room, i.e., the performances were received beyond the place from which they were sent.(38) Thus, the question of interest becomes just how far beyond. However, before we answer that question, we should look to the statutory exceptions of the transmission clause.

2. The "Homestyle" Exception

The Copyright Act provides an exception(39) to the public performance transmission clause by way of 17 U.S.C. [sections] 110(5), the "homestyle" exception.(40) The ever changing and long exception reads:

[sections] 110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright: ...

(5)(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless--

(i) a direct charge is made to see or hear the transmission; or

(ii) the transmission thus received is further transmitted to the public;

(B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if--

(i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and--

(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or

(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;

(ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and--

(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or

(II) if the performance ,or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;

(iii) no direct charge is made to see or hear the transmission or retransmission;

(iv) the transmission or retransmission is not further transmitted beyond the establishment where it is received; and

(v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed ....(41)

This exception is generally for mom-and-pop stores that have a small radio playing.(42) There are many factors that can go into determining if the equipment is "of a kind commonly used in private homes." Some factors that affect the assessment of a particular use as home-type (private) or commercial include "size, physical arrangement, and noise level of areas within the establishment where the transmissions are made audible or visible, and the extent to which the receiving apparatus is altered or augmented' to improve transmission quality for the audience."(43) The size of the business, i.e., whether it justifies the use of a commercial background music service, is another factor to consider.(44) One more variable of determination is the distance between the receiving device and the broadcasting device.(45)

3. One Step Beyond(46)

So how far beyond can we go before we cause a transmission to occur? The short answer is that it is not clear how far. The court in Claire's Boutiques found that merely playing music in a room other than the one containing the receiving device is not enough to be considered a transmission to the public.(47) However, the court also noted discord in the law where many other courts have found that merely wiring speakers in a room different from where the receiver was located was enough to cause a work to be transmitted to the public.(48) Notwithstanding the important and hazy subtleties surrounding the "homestyle" exception, the type of equipment one uses and the setting in which it is used affects the determination of whether an exception will be made allowing an abridgment of a public performance right.(49) What is clear is that if a transmission is found to have occurred, a public performance will be deemed to have taken place regardless of location.(50) However, the difficult question remains as to when a performance becomes public.

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C. The Statutes, On the Road to Nowhere(52)

Up until this point, we have all our ducks in a row, so to speak, for copyright infringement analysis of works performed in public. We know what exclusive rights authors have; we know that one of those rights is to be compensated for public performances of their works; we know that transmitting a performance will make it public; and we even know the definition of a performance. All that remains is to understand the meaning of one simple word: "public" in the context of a copyrighted performance.(53) Unfortunately, although the meaning of a performance in and of itself has been made clear by [sections] 101 of the Copyright Act,(54) the determination of where a public performance takes place has been left obfuscated by statute, legislative history, and case law.

When looking to 17 U.S.C. [subsections] 101 and 106 of the Copyright Act, which form the general statutory basis for defining the breadth and scope of a public performance, one will note the lack of a clear definition of a "public place."(55)

1. Section 106(4), (5), (6), Generally

Section 106 of the Copyright Act, subsections 4, 5, and 6 list certain situations when there is a right "to perform [or display] the copyrighted work publicly."(56) However, it does little to clarify the difficulties surrounding place constitution. The text of the statute merely employs the word "publicly" without actually setting out and explaining what constitutes a public place. Basically, [sections] 106 sets out authors' rights and refers to [sections] 101 to define the public bounds.(57)

2. Section 101(1), Generally

Thumbing further through the definitions in [sections] 101 of the Copyright Act might inspire hope as one comes upon the statutory definition of a public performance:
 To perform or display a work "publicly" means--

 (1)(58) to perform or display it at a place open to the public(59) or at
 any place where a substantial number of persons outside of a normal circle
 of a family and its social acquaintances is gathered;(60) or

 (2) to transmit or otherwise communicate a performance or display of the
 work to a place specified by clause (1) or to the public, by means of any
 device or process, whether the members of the public capable of receiving
 the performance or display receive it in the same place or in separate
 places and at the same time or at different times.(61)


The problem with this statutory definition is that there is no physical definition of a public place per se; rather, the language implicitly transforms a space into a "public place" based on certain amorphous conditions. Although this definition suffices for simple cases, e.g., a private home will not be found to be open to the public while a sports stadium will, the statutory language often leads the practitioner into a quandary.(62)

3. Disjunctive Construction Leads to Confusion

The legislature wrote [sections] 101 (1) with disjunctives.(63) Thus, if either a place is "open to the public or ... a substantial number of persons outside ... [the] family ... is gathered," then the place will be deemed public.(64) The problem with this statutory test is that it does not work well in all situations and as a result, there is doubt as to how it should be applied in particular situations.(65) Perhaps the best way to demonstrate how [sections] 101(1) lacks clarity and promotes inconsistent application is by examining two situations where courts interpreted the statute to reach different results.(66)

The courts in the following two cases viewed similar locations differently when applying [sections] 101(1). In Redd Horne, a video showcase business rented small booths and videos for viewing.(67) The booths seated up to four people, contained a bench to sit on, sported a television, and offered a degree of privacy within.(68) The Redd Horne court, seeking a rationale to establish that the video showcase business was a public place, held that it "was open to the public," likening this business to a movie theater.(69) In Professional Real Estate Investors (hereinafter "PREI"), however, a hotel, in addition to renting rooms, rented video laser discs to guests who could view the movies contained on the discs on players located in their rooms.(70) The PREI court found that a hotel room was not a place open to the public.(71) Both courts dealt with a similar issue, namely, determining whether an establishment could be construed as a public place when it rented individual units that offered some degree of privacy. The courts tried to use [sections] 101(1) as a means to justify a sensible outcome. However, to obtain the differing results, the statute had to be applied inconsistently. Perhaps the most honest assessment as to why the Redd Horne and PREI courts arrived at different results when applying the same statute on seemingly similar bases is that those results are what members of the court and people in general wish to see. The seemingly inconsistent results between the two cases suggest that a just result becomes impossible if the law is to be applied uniformly.

D. Shifting Focus, Avoiding Holding Predetermination

Often, the framing of an issue determines the judicial outcome. Employing the realm of antitrust law as an example, one will find that a case's outcome often will depend on how a relevant market is defined by a court. Thus, it is possible that a court could define a market to reach a result that pleases a sense of fairness or unfairness for the more conspiracy minded, a priori. "Because market power is often inferred from market share, market definition generally determines the result of the case."(72) The problem with such predetermination without heuristic basis, for antitrust or otherwise, is that it may create the appearance that courts are acting arbitrarily.

What we will find is that cases involving public performances may also be subject to holding predeterminations. How a court focuses on an establishment will, in many cases, determine or perhaps predetermine, the court's decision.(73)

By using the two aforementioned cases, PREI and Redd Horne,(74) as a base and by further developing examples, using several assumptions, we will illustrate [sections] 101(1)'s intrinsic focus problem. Let us assume, arguendo, that both Redd Horne and PREI courts reached righteous results. More specifically, those desirable results establish that, when applying [sections] 101(1), we might want to view a peep show(75) as a place where public performances take place. To do so, a court would have to find that the peep show booth is a place open to the public or accommodates a substantial number of persons outside the family. Thus, the statute would transform the peep show into a public place subject to public performance rights.(76) On the other hand, we might want the same statute to view an occupied hotel room equipped with video gear as a place where public performances do not take place. To do so, a court would have to find that the hotel room is not open to the public and does not accommodate a substantial number of persons outside the family; hence, the statute would fail to transform the hotel room into a public place subject to public performance rights.(77) The table, below, arranges these results.

The reason why we might want such results is that it seems intrinsically unfair that a video showcase,peep show or nickelodeon business should derive financial benefit from exploiting the works of artists while depriving them of any benefit(78) of the exploitation.(79) However, it seems intrinsically fair that when people are in hotel rooms, hotel rooms act like their home away from home; therefore, the hotel room should be viewed as a private place exempt from artists' public performance rights.(80) The average person goes to a peep show to view a performance, while the average person goes to a hotel for shelter. It seems that the law should accommodate this difference in purpose. And so, for purposes of this hypothetical and instruction, we will assume the results in the table above are so desired.

If those are the results we wish to reach, then [sections] 101(1) will fail to achieve them when applied consistently because of its inherent deterministic nature. TABLE 5 illustrates the statute's failure to achieve the desired results in practice when maintaining a consistent focus.
TABLE 5: Actual Results Different from Desired Results

 Time Span on
 Substantial Number
 Focus on "Open of Persons Outside [sections]
 to the Public" the Family" 101
 Subclause Subclause Results

Peep Entirety Yes Aggregate Access Yes Public
Show Performance

 Within No While Occupied No No Public
 Performance

Hotel Entirety Yes Aggregate Access Yes Public
 Performance

 Within No While Occupied No No Public
 Performance


1. Focus Pocus

When applying the "open to the public" subclause to a location, the courts must decide if they will look at an establishment in its entirety or as a subcompartment within the entirety, i.e., they must decide on the degree of focus.(81) Furthermore, when applying the "substantial number of persons" subclause to a location, the courts must decide whether to count the aggregate number of people accessing the establishment over a prolonged time or only while it is occupied by people within the subcompartment (i.e., they must decide on the quantum of time span).(82) The outcome will vary with the degree of focus or the quantum of time span a court selects.(83)

TABLE 5 shows that there are more factors that will affect the outcome of public place analysis. Furthermore, the table contrasts the actual results with the desired results of TABLE 4 when one consistently applies either part of [sections] 101(1) to either a peep show or a hotel.

2. Focusing on Examples "Open to the Public"

For example, a court that wished to find a hotel liable for artists' public performance rights can affect the outcome of public place constitution by focusing on the entire hotel rather than on an individual hotel room within.(84) An entire hotel is undeniably open to the public and thus, satisfies [sections] 101(1)'s "open to the public" subclause.(85) By focusing on the entire establishment, a court could force the conclusion that the hotel is a public place subject to artists' public performance rights. Similarly, by focusing on the entire business, a court could establish that a peep show business was a public place.

Conversely, a court that wished to find a hotel not liable for artists' public performance rights could do so by examining the individual hotel room rather than the entire hotel.(86) Once occupied by a guest, a hotel room is no longer open for rent to the public at large(87) and thus fails to satisfy the "open to the public" subclause. By focusing on the individual room within the hotel, a court would force the conclusion that it is not subject to artists' public performance rights. Similarly, by focusing on the peep show booths within the video store rather than on the entire business, a court could establish that a peep show booth was not a public place. Once a patron is inside a booth and closes the door or curtain, that booth is no longer open for rent to the general public. The peep show business would then avoid any problems with artists' public performance rights. Thus, by deciding merely on the degree of focus the court wishes to employ a priori, it can predestine the outcome of public place analysis when applying the "open to the public" subclause. A court could also similarly manipulate [sections] 101 (1)'s "substantial number of persons" subclause.

3. Focusing on Examples of "Substantial Number of Persons"

When employing the "substantial number of persons" subclause, a court can affect the outcome of public place constitution for a hotel by choosing a large quantum time span rather than one limited to the time spent by specific people occupying a given room.(88) An entire hotel, or even a single room within the hotel, over time will host a great number of unrelated people. This would satisfy [sections] 101(1)'s "substantial number of persons" subclause.(89) Thus, by counting the aggregate number of people with access to the establishment over a prolonged time span instead of a limited quantum time span, a court could force the conclusion that the hotel is a public place subject to artists' public performance rights. Similarly, by employing a large quantum time span, a court could establish that a peep show business was a public place.

Conversely, a court that wished to find a hotel not liable for artists' public performance rights could do so by employing a limited quantum time span.(90) While occupied by a guest, a hotel room does not accommodate a substantial number of persons outside the guest's circle of friends or family,(91) thereby failing to satisfy the "substantial number of persons" subclause. Thus, by limiting the quantum time span, a court could force the conclusion that a hotel is not subject to artists' public performance rights. Similarly, by employing a limited quantum time span, a court could establish that a peep show business was not a public place. By merely deciding on the quantum of time span the court wishes to employ a priori, it can predestine the outcome of public place analysis when applying the "substantial number of persons" subclause.

It seems apparent that the only way to reach the "righteous results" in Redd Horne and PREI as embodied in TABLE 4 is by applying [sections] 101(1) inconsistently. To achieve these desired results, a court would have to focus on a hotel room, rather than the entire hotel, and employ a limited quantum time span when counting the number of persons passing through the hotel. Conversely, to hold a peep show business liable, the court would have to focus on the entirety of the business while employing an expansive, aggregate quantum time span.(92) Section 101(1) produces results that are dependent completely on the court's chosen degree of focus or quantum time span. The statute operates deterministically and the outcome will not vary after the focus or quantum is chosen. Unfortunately, the statute ignores other important factors like privacy, lack of control, and the nature of the place; factors that help courts arrive at what people feel are intrinsically fair outcomes. Perhaps examining the legislative history would provide interpretational insight.

E. Legislative History

Rather than artificially grouping the entire legislative history, it is best reserved for discussion in context within the development of the case law.(93) However, it is worth noting, at this point, that the general gist of the legislative history surrounding [subsections] 101 and 106 evidences the congressional will to expand authors' copyrights and public performance rights.
 The legislative history indicates that the category of public performance
 rights was added to expand the concept of public performance by including
 those places that, although not open to the public at large, are accessible
 to a significant number of people.(94)


The courts have looked to the legislative history in developing its standards for public performance analysis.(95)

F. The Nature of the Place Standard for Public Performance Analysis and Its Components

Although the heuristic for public place analysis will be discussed and developed later in greater detail,(96) it is useful to discuss the basic mechanics here. Courts examine the nature of an establishment to determine if it is public.(97) However, courts frame their determination of a place's nature by examining issues of privacy and control.(98) Depending on the court's findings on a place's level of privacy and the level of control exercised over it, the court bases its determination of a place's nature on analysis focusing either on the entire place or merely a subcomponent.(99)

1. The Nature of the Place Standard

The basic procedure courts employ for public place constitution is to look at the nature of the place where the performance takes place.(100) If the place is generally used for the purpose of enjoying performances, then the place will likely be deemed public and therefore, a public performance will have taken place. However, if the place is generally used for purposes other than sheer enjoyment, then it will not be deemed public.(101) The problem with such analysis is that the outcome will still depend upon the degree of focus employed by a court. For example, the purpose of a restaurant that holds performances on a small stage one hour every evening or has a large screen television for major sporting events, when looked at as a whole, is to prepare and serve food. However, if one instead focuses on these performances or displayed sporting events, the purpose of the establishment may be seen as entertainment. Similarly, an adult bookstore with a few video peep show booths may be viewed as a place to sell pornography. However, if one focuses on the booths, their general purpose is to allow the public to enjoy video performances. Thus, the focus problem still remains with the nature standard in and of itself, and no heuristic for choosing the proper degree of focus is provided.(102)

Nonetheless, the courts have developed a heuristic to allow them to determine the nature of a place. The courts can find the proper degree of focus by determining whether a place creates a reasonable expectation of privacy or lacks control by the owners.

2. Reasonable Expectation of Privacy

Courts have found that if people cannot reasonably expect privacy in the place in which they are situated, then a court should change its focus to an analysis of the entire place.(103) Perhaps the best example of this was cited in PREI.(104) The court looked to search and seizure cases that established that a hotel room is deemed private, and thus exempt from public seizures.(105) Likewise, the PREI court found that a hotel room should similarly be exempt from public performance rights, because the room was a private place when an occupant had a reasonable expectation of privacy.(106) Therefore, the PREI court narrowed its focus to the hotel room, rather than the entire hotel, which was clearly open to the public and violative of [sections] 101(1) on its face. Focusing on the room itself allowed the court to determine that a hotel room's nature was not to exhibit performances publicly, but rather to house guests.(107)

Such a finding is consistent with [sections] 101(1) because a room cannot be considered open to the public while it is occupied.(108) It is interesting to note how useful this shifting mechanism is in keeping a court's holding consistent with [sections] 101(1). Had the PREI court applied the nature standard to the entire hotel, it still would have found that the general purpose of a hotel was to house guests. By that analysis alone, the court would have held that the hotel did not house public performances, and as a consequence, was not a public place. However, such a result is clearly nonsensical and would be contrary to the language of [sections] 101(1) because an entire hotel is clearly open to the public[109] (i.e., a court would look rather silly if it found an entire hotel was not open to the public when the primary purpose of a hotel is to open its rooms for rent to the public at large). Thus, if a court were to employ the nature of the place standard without a heuristic that shifts the focus of public place analysis down into a hotel room via the "reasonable expectation of privacy" component, then its holding would be contrary to the statute.[110] Similarly, a court may employ a "lack of control" component to shift the focus of public place analysis so that the nature standard will not yield results contrary to the statute.

3. Lack of Control

Courts have adopted contributory infringement analysis when examining infringement of the right to authorize public performances.[111] To establish contributory infringement, some courts look to see if the accused infringers lacked control over the environment where infringements were occurring, and if so, often find that there was no infringement.[112] Thus, the courts seem to have imported another focus-shifting heuristic component, "lack of control," into public place analysis. [113]

Employing this heuristic, if a court finds that an establishment that houses performances was under the control of the owner, then the court could expand its focus of analysis to the entire establishment.[114] Conversely, if the court found the place's owner lacked control, then the court could narrow its focus.(115) Using a hotel room as an example, a court would find that the hotel owner does not direct the activities of a hotel room guest and thus lacks control over the environment. Thus, the court would maintain a narrow focus of analysis over the hotel room, and likely find the hotel room's nature is to house guests and not performances.(116)

To determine whether there is a lack of control over a place, a court could look to find if the place is almost always used for infringing purposes; if it is, and the owner knows that, then the court would expand its focus of analysis to the entire place, thus making it more likely that its nature would be found to be open to the public and violative of public performance rights.(117)

Case law resolves, to some extent, the uncertainties created by the statute.(118) The statutes work differently depending upon the degree of focus

a court employs in its public place analysis, and a court's finding may depend completely upon this level of focus.(119) Unfortunately, the statutes are completely silent as to what degree of focus a court should employ for public place analysis. However, the courts have developed a heuristic for choosing the proper degree. Because the statutes themselves have not been satisfactory tools for public place constitution,(120) the courts have developed varying interpretations and standards in an attempt to further refine public place constitution beyond the statutory shortfall.

G. Case Law, Disharmony Harmonized

The seminal case of confusion is PREI.(121) Unfortunately, the case does little to resolve or shed light on the topic itself. The Supreme Court did not adopt a standard for public place analysis;(122) perhaps the only value of the entire case to public performance analysis is that it provides a nice synopsis "of the unsettled condition of the law."(123) Rather than detailing PREI here, perhaps the best way to understand the legal discord is to go through a brief time-line of the various federal court decisions and examine the Supreme Court's decision in a temporal context.

We are looking for a simple answer, or rather a straightforward, comprehensive standard that may be applied to public place analysis. The following cases show the progression of and conflict in the law. However, by following this progression, we find the unexpected; an unstated resolution to the difficulties of public place constitution. In fleshing out the cases and the subsequent development of public place analysis, we discover how [sections] 101 affected the cases, how various interpretive standards developed, and how other doctrines may be affected.

1. Redd Horne, Holding Shell Game

In Redd Horne, the plaintiff, owner and distributor of copyrighted movies, complained that the defendant, Redd Horne, infringed its public performance right by operating a video showcase business that rented video tapes and transmitted them from a central video system, under the control of employees, to booths.(124) The showcase business, Maxwell's, offered videos for sale and for rent.(125) The core of the showcase business provided small booths that contained a nineteen-inch color television and a bench that seated up to four people.(126) Maxwell's had two locations that housed eighty-five booths.(127) The rental of the booth was tied to the rental of a video, and the price to rent would increase with the number of viewers.(128) Patrons would close the door to the booth enjoying a degree of privacy, thereafter, a clerk would initiate and transmit the patron's video selection from a central system.(129)

The issue on appeal was whether the private booths were public performance places.(130) Although obfuscated by an over-abundance of [sections] 101(1) analysis, the court in fact relied on the "transmission" clause.(131) The court held that the defendant's unauthorized activities violated the plaintiffs public performance rights.(132) The court found the booths were public places, reasoning that the audience composition was of a public nature (i.e., the video showcase business was very much like a movie theatre business).(133)

a. Is This Trip Really Necessary ?

It is curious that the court concentrated at all on [sections] 101(1)'s "open to the public" clause or the "substantial number of persons" clause because the central video system transmitted movies into the booths.(134) The case could have been resolved much more readily by merely applying the "transmission" clause.(135) A completely private place outside the reach of [sections] 101(1) is still subject to the "transmission" clause when a transmission is taking place.(136) A House Report clarifies that "a performance made available by transmission to the public at large is `public' even though the recipients are not gathered in a single place.... The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms.... "(137)

The central video system in Redd Horne certainly transmitted performances.(138) That alone would have been enough to transform the location into a public place for place constitution purposes.(139) Of course, the ability to determine a public performance by the transmission clause does not preclude analysis or a finding of a 101(1) violation.(140) However, it is generally more difficult to perform [sections] 101(1) analysis than to determine that a transmission occurred according to [sections] 101(2).(141) Thus, it is curious that the court pursued clause (1) when the transmission clause would have sufficed. Even more curious was why and how the court fashioned arguments supporting a clause (1) public place constitution; the court's analysis produces potential interpretational effects of note.

b. [sections] 101 Analysis "Would Be Illogical"(142)

Perhaps the most striking part of the court's analysis is the admission that the facilities at Maxwell's were private,(143) The court's statements seem rather bold in the face of [sections] 101(1) requirements. The entire point of [sections] 101(1) is to root out whether a place is public or private. If a court admits the places in question, here the booths at Maxwell's, are private, the analysis should end there because private and public status seem to be mutually exclusive.(144)

Section 101(1) public place analysis implicitly starts with the proposition that a specified place's status is being called into question; either it is public or it is private. The process of determining the answer to this question (i.e., applying the statutory language) should lead to a court decision stating that the place where the performance is enjoyed is either public or private, which is the only determination of consequence under [sections] 101(1). The statute employs two subclauses to aid in this determination: the "open to the public" and the "substantial number of persons" subclauses.(145) If the place in question satisfies either of the above subclauses, it is deemed public.(146) If a place is deemed private, it cannot, by definition, satisfy either of the above subclauses and as a consequence, the court's [sections] 101(1) analysis seems illogical or nugatory at best.(147) Thus, when the Redd Horne court determined that the booths were private, the need for [sections] 101(1) analysis was questionable, and perhaps ought to be viewed as overly emphasized dicta.

c. Nature of the Place(148) Standard Is Born

However, the court's analysis is not considered dicta; rather, it was the birth of a new standard to clarify the deficiencies(149) of [sections] 101(1). Three factors lead to this conclusion. First, if this is not a new standard, the [sections] 101(1) analysis employed in Redd Horne was unnecessary. Second, the results of the court's [sections] 101(1) analysis are illogical. Third, other circuits adopted it as such.(150) Thus, the Redd Horne district court took a bold step and expanded the statutory framework for public place analysis by establishing the nature standard.(151)

The district court gave only a few hints as to what the nature standard is and how to use it for public place constitution. They used it to examine the primary purpose of the establishment by comparing it to a movie theatre that clearly houses public performances and contrasting it to private, living room locations. The court found:
 that the composition of the audience at Maxwell's is of a public nature,
 and that showcasing the plaintiffs' copyrighted motion pictures results in
 repeated public performances which infringe the plaintiffs' copyrights.
 [The] finding is based on the view that the viewing rooms at Maxwell's more
 closely resemble mini-movie theaters than living rooms away from home. At
 least as regards the composition of the audiences at Maxwell's, the
 showcasing operation is not distinguishable in any significant manner from
 the exhibition of films at a conventional movie theater.(152)


The court developed the standard to bolster their choice of degree of focus and quantum time span factors.(153) The defendants noted that the booths were specifically limited to family members and close friends, which would seem to avoid falling under the "open to the public" clause or the "substantial number of persons" clause.(154) Moreover, the court had already admitted that the booths were private, at least while occupied.(155) Regardless, the court focused on the entire establishment to conclude it was open to the public and to employ an expansive quantum time span to show that Maxwell's attracted a "substantial number of persons."(156) Noting that the choice of such factors can be viewed as arbitrary, along with other difficulties when solely using [sections] 101(1) for place constitution,(157) the addition of the nature standard and analysis comparing the booths to a movie theatre seems a wise addition to help legitimize the finding.

At least for a while following the Redd Horne decision, courts refined the nature standard and had a much easier basis with which to perform public place analysis.

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2. Aveco, How Much Is Enough?

In Aveco, the plaintiff, Columbia Pictures, owner and distributor of movies, complained that the defendant, Aveco, operated a video showcase business that rented video tapes for viewing in booths equipped with a television and video cassette player, which infringed its public performance right.(159) The booths could hold between two and twenty-five people.(160) The issue was whether the booths that were under the sole and private control of occupants were public performance places.(161) The court relied upon 101(1)'s "open to the public" clause.(162) In parsing [sections] 101(1), the court reaffirmed the "nature" standard as the means to interpret the "open to the public" clause.(163) Drawing analogies and relying upon Redd Horne, the court held that Aveco was authorizing public performances, reasoning that the nature of the video showcase business turned not on the "whereabouts of the video cassette players," but upon the willingness to make the facility available to members of the public.(164)

a. Factual Differences from Redd Horne

There are two factual differences between Aveco and Redd Horne. First, in Aveco, there was no transmission taking place; second, the rooms could hold many people (i.e., up to twenty-five people).(165) The court should have acknowledged the difference between room capacity between its case and the Redd Horne case. If it had, it could have deemed twenty-five to be a substantial number of persons (i.e., thereby making the place public by the [sections] 101 (1) "substantial number of persons" subclause) and could have resolved the case more quickly. However, such a holding would have framed the "substantial number of persons" subclause into a numeric framework. Subsequently, some later court would have had to decide on what number below twenty-five constitutes an insubstantial number. Such a standard would almost certainly be both satisfactory and unsatisfactory in varying situations. The court likely avoided this "number" analysis to prevent future interpretational problems and, instead, concentrated on the lack of transmission.(166)

There were no transmissions in Aveco because each room had its own video cassette player.(167) Aveco's clientele had control over the video cassette players within each room, and as a consequence, Aveco's employees did not have control over what was played within each room.(168) Aveco customers were permitted to "(1) rent a room and also rent a video cassette for viewing in that room, (2) rent a room and bring a video cassette obtained elsewhere to play in the room, or (3) rent a video cassette for out-of-store viewing."(169)

Incredibly, the court saw these distinctions as irrelevant and found Aveco to be "indistinguishable" from Redd Horne.(170) Instead, the Aveco court held that the store's nature, based upon the willingness to make the facility available to members of the public, made it open to the public.(171) In so doing, the court was able to rest the case on [sections] 101(1) without much more. These distinctions and the court's subsequent holding may have given birth to another public place analysis component.

b. Lack of Control: A Possible Component of Public Place Analysis

The Aveco court noted that the video cassette players are under the patrons' control because employees lacked control over the broadcast content.(172) Nevertheless, the court still found Aveco "responsible as an infringer even though it does not actually operate the video cassette players."(173) The court reasoned that by "knowingly promoting and facilitating public performances of Producers' works[,] Aveco authorizes those performances even when it is not the source of [the] Producers' copyrighted video cassettes."(174) This assertion is at least arguable. If patrons rent cassettes to be viewed at home, rent the rooms without renting a video cassette, or rent the rooms to watch their own videos, it would seem that Aveco would have no reason to know that the plaintiff's works are being violated. In other words, if Aveco employees rent the videos and the rooms in two separate transactions, there is no guarantee that a patron will not go into the room to read a book, and take the video home for later viewing, which would constitute a non-infringing use of the room. The court addressed this issue in part by drawing on legislative history:
 [i]n granting copyright owners the exclusive rights to "authorize" public
 performances, Congress intended "to avoid any questions as to the liability
 of contributory infringers. For example, a person who lawfully acquires an
 authorized copy of a motion picture would be an infringer if he or she
 engages in the business of renting it to others for purposes of an
 unauthorized public performance." [citation omitted]. In our opinion, this
 rationale applies equally to the person who knowingly makes available other
 requisites of a public performance. Accordingly, we agree with the district
 court that Aveco, by enabling its customers to perform the video cassettes
 in the viewing rooms, authorizes the performances.(175)


This is a rather astounding assertion because it potentially makes every video store in the country liable for contributory infringement if they knowingly authorize public performances.(176) Any person can go to her local video store, rent a movie, take it to a public conference and play the video. The person lending the movie has no way of knowing how the video will be used because its use is out of her control. However, the person lending the video may well know that people sometimes do rent movies to perform them in public contexts such as conferences. In such an event, not only would the person who played the movie(177) and the place hosting the conference be contributory infringers,(178) but so too would the unsuspecting video store owner who lent the video.(179) If this Aveco rationale is to be expansively employed, video rental stores should at least be wary.(180) If, however, the above Aveco rationale would not be used to find that video rental stores are contributory infringers, the question arises, "why not?"

c. Patent Law's "Substantial Noninfringing Use" Test As A "Lack of Control" Determinator

The Sony Betamax(181) case provides one possible heuristic that illustrates why a video rental store does not infringe while Aveco, ostensibly as a hotel owner, does. In Sony, television and movie producers sued Sony as a contributory infringer for manufacturing videocassette recorders capable of making unauthorized copies of television and motion pictures.(182) The Court found that there were "substantial noninfringing uses" for devices such as time-shifting television programs so that people could watch programs of their choosing at more convenient hours.(183) The "substantial noninfringing uses"(184) test employed by the Court is taken from patent law.(185) The patent law states:
 Whoever offers to sell or sells within the United States or imports into
 the United States a component of a patented machine, manufacture,
 combination or composition, or a material or apparatus for use in
 practicing a patented process, constituting a material part of the
 invention, knowing the same to be especially made or especially adapted for
 use in an infringement of such patent, and not a staple article or
 commodity of commerce suitable for substantial noninfringing use, shall be
 liable as a contributory infringer.(186)


Justice Blackmun, representing four Justices, dissented, arguing that "V[ideo] T[ape] R[ecording] is contrary to the rights granted by [the copyright statute section] 106(1)."(187) Blackmun rejected the Court's use of the "substantial noninfringing use" test reasoning that it "essentially eviscerates the concept of contributory infringement" because "only the most unimaginative manufacturer would be unable to demonstrate that [a] product is `capable' of substantial noninfringing uses." Justice Blackmun might have been happier with a more narrow test, stating "[s]urely Congress desired to prevent the sale of products that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire."(188) Despite Blackmun's urging, the Court extended the patent test to copyright to require accused infringers to merely demonstrate "substantial noninfringing uses." In some sense, the Supreme Court is looking past the primary purpose for which an item is being used to find contributory infringement.(189)

d. Questionable Applicability of "Substantial Noninfringing Use" Test to Copyright

There is no statutory equivalent to patent law's "substantial noninfringing use" test in copyright law. Clearly one may not simply employ standards from patent law upon copyrights without some legal edict.(190) There are only hints that such a standard is developing in copyright law.(191) What else would explain how video rental stores are generally not viewed as being contributory infringers, while Aveco was found to be "authorizing" public performances, and thus liable?

One possible explanation can be found in several contributory infringement cases. One court, in dicta, specifically addressed the possibility of employing the Sony "substantial noninfringing use" standard in copyright cases. In Matthew Bender & Co. v. West Publishing Co.,(192) the plaintiff sought a judgment declaring the insertion of West's star pagination in its CD-ROM compilation of judicial opinions was not an infringement.(193) West sought to distinguish its pagination from Sony's Betamax arguing that the Betamax is a "neutral `staple article of commerce ... sold without reference, connection, or linkage to any copyrighted work,' [in contrast to Bender's CD-ROMs which] contain ... exact copies of West's proprietary arrangements permanently embedded within its database."(194) However, the court found "the `substantial noninfringing use' test is as applicable here as it was in Sony [where it was] applied ... to prevent copyright holders from leveraging the copyrights in their original work to control distribution of (and obtain royalties from) products that might be used incidentally for infringement, but that had substantial noninfringing uses."(195) The court applied this economic rationale to West's Reporter System.
 West has a thin copyright in its compilations, which it seeks to leverage
 to protect its pagination (an element of its compilation that is
 unprotected altogether) and thereby to foreclose (or draw royalties from)

 CD-ROM products that might be used incidentally to replicate West's
 arrangement of cases, but that have substantial, predominant and
 noninfringing uses as tools for research and citation.(196)


The court backtracks slightly in a footnote, acknowledging "the `substantial noninfringing use' test [may] not apply beyond the context of staple articles of commerce."(197) Nevertheless, West could not establish that Bender "with knowledge of the infringing activity, `materially contribute[d]' to the direct infringement of West's copyright, because no showing of knowledge has been made, the infringement itself (if done) would have been pointless, and the predominant uses of plaintiffs' products are noninfringing."(198)

Livnat v. Bar Lavi(199) echoed similar sentiments in dicta in a case involving copyrighted photographs.(200) The Livnat court relied on Sony to hold that "[p]articipation sufficient to establish a claim of contributory infringement may not consist of merely providing the `means to accomplish an infringing activity.'"(201) Before a court may impose liability, "the alleged contributory infringer must make more than a `mere quantitative contribution' to the primary infringement."(202) Instead, the "[p]articipation ... must be `substantial.'"(203) To be "substantial" "[t]he authorization or assistance must bear a direct relationship to the infringing acts, and the contributory infringer must have acted in concert with the direct infringer."(204)

Similarly, the court in Apple Computer, Inc. v. Microsoft Corp.(205) found that "[l]iability for contributory infringement arises when a defendant knowingly induces, causes, or materially contributes to the infringing activity. The participation of the alleged contributory infringer must be `substantial' [citation omitted]."(206)

While the Apple Computer court did not state the standard as strongly as the Livnat court, both courts agreed an alleged contributory infringer's participation must be "substantial." These cases echo similar language and drive towards a similar end, i.e., the development of a Sony-like test for copyrights to aid in contributory infringement analysis.

e. Potential Blurring of Public Place Constitution and Contributory Infringement

One can now start to see that in some cases, public place analysis starts to resemble contributory infringement analysis. Indeed, the Aveco court not only employed an analysis that is reminiscent of contributory infringement analysis, but may have also established the precedent that public performance and contributory infringement analyses are now the same thing.(207) As previously discussed,(208) the Aveco court relied, at least partially, on legislative history, stating that "[i]n granting copyright owners the exclusive rights to `authorize' public performances, Congress intended `to avoid any questions as to the liability of contributory infringers.'"(209)

This single bit of legislative history allows the court to equate authorizing public performances with contributory infringement.(210) The Aveco court adopted this equation, stating "this rationale applies equally to the person who knowingly makes available other requisites of a public performance."(211) The court then found that "Aveco encourages the public to make use of its facilities for the purpose of viewing."(212) This statement seems to imply that the court does not believe that there are substantial noninfringing uses of the facilities because the encouraged uses are violative. Of course, this harkens back to the Sony test mentioned earlier.(213) The court further reasoned that "[b]y thus knowingly promoting and facilitating public performances of Producers' works[,] Aveco authorizes those performances even when it is not the source of [the] Producers' copyrighted video cassettes."(214) In essence, the court inserted a "knowingly" requirement to find that there is no "lack of control" defense available to the accused infringer. If the accused infringer knowingly makes other requisites of a public performance available, then that infringer will not receive any comfort from the lack of control component.(215) And, without the "lack of control" defense, it is easy to make a determination about the nature of the Aveco business with regard to public performances.(216)

f. Nature of the Place Standard Complemented By Lack of Control Component

By ending the "lack of control" defense, the Aveco court found a justification to shift the degree of focus on the entire store.(217) As we shall see demonstrated and fleshed out through the remainder of this case law time-line, the "lack of control" component has been replaced by the nature standard in the overall framework for public place analysis.(218)

As a result, the Aveco court employed the nature standard, finding that Aveco's primary business purpose was to aid in infringing uses of the copyrighted works.(219) The court compared the nature of Aveco's facility to that of a "telephone booth, a taxi cab, and ... pay toilet," noting that all such facilities generally establish what types of activities are to be performed.(220) Thus, the court found the Aveco facilities were essentially established for the purpose of allowing people to view movies.(221)

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3. Professional Real Estate Investors, There's Someplace Like Home

In Columbia Pictures Industries, Inc. v. Professional Real Estate Investors,(223) the plaintiff, Columbia Pictures, owner and distributor of movies, complained that the defendant, Professional Real Estate Investors, in the course of operating LaMancha's resort facility, infringed its public performance rights by renting videodiscs to guests for viewing in rooms equipped with a large screen projector television and videodisc player.(224) The resort rents fifty units, each with its own kitchen, living room, bath, patio, and pool.(225) The issue in PREI involved whether guests of a hotel by viewing the discs in their rooms, were transforming the hotel rooms into public performance places.(226) The court ultimately relied upon [sections] 101 (1)'s "open to the public" clause.(227) In parsing [sections] 101(1)'s "open to the public" clause,(228) the court distinguished PREI from Redd Horne and Aveco, holding that viewing copyrighted works in a hotel room is not a public performance.(229) The court reasoned that the principal nature, or purpose, or a hotel room is to be a private home away from home, and thus, not "open to the public."(230)

a. Factual Differences from Redd Horne and Aveco

The PREI court distinguished the facts of this case and maintained that the holding had not changed the case law.(231) Future cases support the proposition that PREI did not change the law.(232) The court explains that the outcome is different from the Third Circuit cases because "La Mancha's operation differs from those in Aveco and Redd Horne because its `nature' is the providing of living accommodations and general hotel services, which may incidentally include the rental of videodiscs to interested guests for viewing in guest rooms."(233)

Perhaps the greatest difference in factual findings emerged through the court's examination of the privacy issue.

b. Privacy: A Possible Public Place Analysis Component

The court used privacy as a means to shift the focus(234) from the entire hotel to an individual hotel room.(235) The court stated that "[w]hile the hotel may indeed be `open to the public,' a guest's hotel room, once rented, is not."(236) The justification for this shift in focus was that "places where individuals enjoy a substantial degree of privacy" have traditionally been viewed as private.(237) The PREI district court also supported this shift in focus, stating "[a] hotel room is subject to the Fourth Amendment protection because guests at hotels have a reasonable expectation of privacy while they are in their rented room."(238) The district court also noted that:
 [t]he principal and sole purpose of viewing rooms in the Redd Horne and
 Aveco cases was to watch movies. In contrast, a hotel is a place to live
 while away from one's permanent home. The primary or even a principal
 reason of renting a hotel room is not to view movies. At best, the viewing
 of movies in a hotel room is incidental....(239)


The above analysis appears very much like the "substantial noninfringing uses" Sony test.(240) The court's finding that the hotel room is primarily used for noninfringing uses further justified a shift in the degree of focus from the entire hotel to an individual hotel room.(241)

c. Nature of the Place Standard Complemented by Privacy Component

The court's analysis demonstrated an attempt to appropriately justify these shifts so that the court could avoid the appearance of arbitrary a priori judgments in an attempt to reach an apparently just result.(242) Once the shift in focus is made from the entire facility to a subcomponent, or vice versa, the application of the nature standard becomes easier. Thus, the court contrasted the nature of the booths in Redd Horne(243) and Aveco(244) to a hotel room.(245) The court found that the essential feature of Redd Horne's business was to provide services that were essentially the same as movie theaters,(246) while Aveco's rooms, once rented, provided private living accommodations.(247) Of course, this resulted in an outcome different from the previous cases decided using the nature standard and subsequently, the decision was questioned by many as having unwisely changed the law.(248)

d. Did PREI Change the Law?

The Supreme Court granted certiorari and decided PREI, but limited its examination and holding to issues of antitrust.(249) The Court held that "litigation cannot be deprived of immunity as a sham unless the litigation is objectively baseless."(250) The Court provided a synopsis of the "unsettled condition of"(251) public place analysis as a way to find that "the `sham' exception to the doctrine of antitrust immunity" did not apply.(252) To find no sham existed, the Court had to show that there was at least some objective basis for the suit (i.e., that there was at least some question as to the state of public place constitution law).(253) Thus, the Court framed its synopsis of public place constitution with an eye toward demonstrating that the state of law is unsettled.(254)

Rather than clarifying the state of public place analysis, the Court noted this discord in the law as a tool for resolving the sham issue.(255) In so doing, the Court noted that "copyright scholars criticized both the reasoning and the outcome of the Ninth Circuit's decision."(256) The Court attempted to show public place constitution was an "unsettled condition of law" by noting that "[t]he Seventh Circuit expressly `decline[d] to follow' the Ninth Circuit and adopted instead the Third Circuit's definition of a `public place.'"(257)

Arguably, the Court may have exaggerated the extent of this discord in public place constitution. The Court, when quoting the "expressly `decline[d] to follow'"(258) language of the Seventh Circuit, omitted some key language. A reading of the Seventh Circuit's citation to the Supreme Court reveals statements of an altogether different flavor:
 [w]e find that Professional Real Estate Investors did not `change' the
 law.... We agree with the rationale of both Redd Horne and Aveco: the
 proper inquiry is directed to the nature of the place in which the private
 video booths are located, and whether it is a place where the public is
 openly invited.... To the extent that Professional Real Estate Investors
 may be viewed to contradict the rule established by Redd Home and Aveco, we
 decline to follow it.(259)


The basis for the Ninth Circuit's analysis was the same nature test employed by the Third Circuit in Redd Horne and Aveco.(260) The Ninth Circuit in PREI was careful to note it was not changing the nature standard, but merely applying it to a different set of facts.(261) Therefore, it is hard to see how the lower PREI courts could have contradicted the nature standard established in Redd Horne and Aveco when, they employed the same standard. Thus, the Video Views court properly did not view PREI as having changed the law because the lower PREI courts also upheld the use of the nature standard.(262)

Why would the Supreme Court characterize the law as unsettled and then forego the opportunity to resolve it? Most likely, the Supreme Court was merely demonstrating that there was sufficient discord between the circuits to justify a defense to an antitrust sham suit.(263) The Court may well have remained mute on the topic of public place constitution because it viewed the nature standard as being reasonably robust. Some later cases show that the standard works reasonably well.

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4. A Couple Cases of Note

The three aforementioned cases(265) generated and generally reconciled the relevant standards. Subsequent cases reaffirm and, to a certain degree, refine the nature standard and public place constitution.(266)

a. Video Views, a Porn Contract

In Video Views, the plaintiff, Video Views, licensor of adult films, complained that the defendant, Studio 21, Ltd., operating an adult bookstore and "video arcade booths," i.e. a peep show, infringed its public performance right.(267) These video arcade units were housed in rooms, or booths, located on the premises of the bookstore.(268) The facility had six peep show booths wherein one to six patrons could enjoy adult videos by dropping tokens into a slot.(269) Video Views entered into a licensing agreement for several of its videos with Studio 21.(270) The court examined whether the specifications of a license agreement were consistent with public place constitution.(271) The court found that Studio 21 violated the terms of the license; however, in so determining this, the court relied on 17 U.S.C. [sections] 101(1) (i.e., the "open to the public" clause).(272) In parsing [sections] 101(1), the court reaffirmed the "nature" standard as the means to interpret the "open to the public" clause.(273) The court held that displaying copyrighted works in a peep show booth is a public performance.(274) The court reasoned that the booths were open to the public.(275)

The terms of the license established the location where Video Views' videos could be played; the court found that Studio 21 contractually violated those terms.(276) The court could have decided the matter entirely on the breach of the licensing agreement without pursuing a public place analysis. Nevertheless, the court's public place analysis is consistent with the prior precedents discussed above which have used the nature standard and public place analysis. Following TABLE 8, found in Part II.G.3.d, to analyze a peep show booth will lead to a similar conclusion. Assuming that there is no transmission, the next relevant question would be whether such peep show booths offer a reasonable expectation of privacy. If they do, the focus narrows to the booth itself. However, when one asks the subsequent question of whether the peep show booths provide substantial non-infringing uses, the scope would subsequently be shifted back to the entire facility. The reason for this shift is that the booths are primarily used to show videos, and if no authorization is proven, they are primarily being used for infringing purposes. Therefore, the proper scope in the case of a peep show facility would be the whole facility and not an individual booth. This view of Video Views is in harmony with the developing public place heuristic.(277)

b. On Command

In On Command Video Corp. v. Columbia Pictures Industries,(278) plaintiff On Command Video developed an electronic delivery system of movie videotapes and declared that it did not violate the public performance rights of the defendant, Columbia Pictures, owner and distributor of the copyrighted movies. The On Command video delivery system was comprised of a centrally located bank of video cassette players under computer control.(279) The central system would act as a hub, wired into televisions equipped with a special microchip and remote control.(280) The system was wired into every hotel room.(281) The hotel guest could control and request movies for display through an on-screen menu.(282)

The issue was whether public performances occurred when videos were initiated by guests, which were then transmitted and displayed in a private place.(283) The court found that hotel rooms were not public places and consequently, no public performances resulted under [sections] 101(1) (i.e., the "open to the public" clause).(284) The rule the Court relied on was 17 U.S.C. [sections] 101, the "transmission" clause.(285) Under the transmission clause, the court held that On Command publicly performed defendants' movies through its system.(286) The court reasoned that "[t]he non-public nature of the place of performance has no bearing ... under the transmission clause."(287) The Court also found On Command's lack of control over transmissions (i.e., "[t]he fact that hotel guests initiate this transmission") immaterial as well.(288)

Although On Command was; a transmission case, it is included to show that no amount of public place analysis under [sections] 101(1) will save the transmission of a work from being deemed a public performance. The On Command Court not only found that the hotel rooms were not public places under [sections] 101(1), but it also specifically found the issues of lack of control and privacy completely immaterial.(289) This reaffirms our previous finding that a transmission of a work removes it from the context of [sections] 101(1) public place analysis(290) and acts as a good introduction to the following section.

III. PROGNOSIS

A. Evaluation of The Heuristic

It may prove edifying to examine how several examples are handled by our newfound heuristic. In so doing we will discover what situations might escape just resolution. Thus, let us start by looking at our chart and note where certain situations fall.

[TABULAR DATA 9 NOT REPRODUCIBLE IN ASCII TEXT]

1. Dip and Cher

Last we left Dip he was with Bubba.(292) There were several reasons why Dip got in trouble. First, Dip may have been performing his rented DVDs in public. While traveling on a public train, which is open to the public, Dip did not stop passengers, who were not family members or social friends, from watching movies on his DVD capable laptop. On the face of the statute, there would be a violation of 17 U.S.C. [sections] 101. This example is tricky because it is not clear which branches of the decision tree(293) help resolve the situation.

Assuming Dip was found to have transmitted the movies to the public from his portable video boom box, he would likely not be entitled to a [sections] 110(5) "homestyle" exception because although his machine is a standard laptop that is widely available and bought by the public at large, the machine is not a receiving apparatus as is required for the [sections] 110 (5) exception to apply.

Alternatively, if a transmission was not found, Dip could not reasonably expect privacy while on the train. What is not clear is who would be on the hook for controlling this performance? Would the train company be involved because it provides seating that could arguably be used for performances? Alternatively, would the analysis be limited only to Dip? It would depend on who was sued. Regardless, it is likely that train seats are not always used to infringe public performance rights and offer substantial noninfringing uses both for the train company and Dip; accordingly, the court's focus would shift to the train seat for analysis based on the nature standard. Dip would likely not be liable for the DVD performances because the nature of a train seat is to hold passengers for transport, and not to enable performances. However, Dip's other actions did violate public performance rights.

Dip violated the transmission clause by playing music from his company's computer server over a network connection.(294) Because the audio was transmitted via a network server (something that is not found in the typical home), there was no "homestyle" exception. Therefore, Dip was guilty of repeated unauthorized public performances.

Cher, on the other hand, escaped.(295) First, when Cher unplugged the laptop from the network, she no longer used the computer server to facilitate the transmission. Then she played the performance to her co-workers, a substantial number of people outside her family circle. It is difficult to see how her laptop is any different from a portable stereo CD player once it is unplugged from the network. Although Cher might not reasonably expect privacy in the office, the office is used for substantial noninfringing purposes; the nature of an office is a place to enable work, and not to enjoy performances, and thus no public performance resulted. This result makes sense; otherwise, a Sony walkman or boom box might trigger a public performance infringement when employed in a park, office, etc. Interestingly, Cher could not benefit from a 110 (5) homestyle exception because her laptop is not a receiving apparatus, again, resembling a portable CD player. Officemates, however, could benefit from the homestyle exception by buying a cheap stereo system with a receiver that can play five or more compact discs, perhaps one from each employee.(296)

2. Redd Horne(297)

Redd Horne is quickly resolved under the heuristic. The works were transmitted from a central location and the transmitting equipment was not of the type commonly found in private homes. Thus, a public performance took place.

3. Aveco(298)

There was no transmission in Aveco because each booth had its own video cassette player. Further, there was no reasonable expectation of privacy because the rooms could hold up to twenty-five people. The rooms were usually used for infringing purposes, i.e., the rooms were mostly used for unauthorized video viewing. However, even if there were substantial noninfringing uses, the rooms were rented knowing that they would be used for watching the movies. This shifts the focus of nature analysis to the entire place. The nature of the business was one of renting videos to the public. The entire facility was open to the public; therefore, public performances were occurring.

4. Professional Real Estate Investors(299)

There were no transmissions in PREI because each room had its own videodisc player. There was a reasonable expectation of privacy in the hotel rooms. Moreover, the hotel rooms were not primarily used for infringing purposes; i.e. they had substantial noninfringing uses. Thus, the focus shifts to the individual hotel room for nature determination. A hotel room is used as private housing; that is its nature. Therefore, no public performance took place.

B. Business Insignificance

Not withstanding the realm of transmissions, in some contexts, the topic of public place constitution may be practically moot. Market forces seemed to have done a great deal to resolve the problems presented by the PREI decision. Video delivery systems like those in On Command Video are becoming increasingly common in hotel rooms. Guests seem willing to pay a premium for the convenience of such video on demand services. The hotel chains benefit because service providers like On Command Video maintain their entertainment equipment while hotels still gain profits. In addition, the movie companies and service providers take a piece of the premium take. There seems to be little to no downside for any of the parties involved.

Furthermore, the reason why there are not more [sections] 101(1) cases may stem from the size of the companies involved. A large hotel chain will have the money and resources to invest in a system like those offered by On Command Video. Only relatively smaller facilities would opt to stock hotel rooms with video cassette players. A small facility's ability to engage in a legal battle against the likes of Columbia Pictures is hampered by disparate resources. However, with advancements in technology, on demand systems may become more affordable and available.

C. Problems with Technology

The Dip and Cher examples already suggested one of the potential problems brought on by advancements in technology. A very cheap and ordinary home computer is capable of broadcasting; e.g. what goes on in a person's house may be broadcast via a webcam. Many ordinary people are using this basic homestyle technology to make both audio and video broadcasts over the Internet.(300) Thus, one can foresee, and in fact see, the problems that may arise when ordinary computers are so capable and fast that they may contain entire libraries of music and other copyrighted works.(301) Setting aside the issues of misappropriation and copying, assuming all copies made by Dip and Cher are legal, there are still huge potential problems regarding public performance rights.

For example, if Cher has a computer at home on the Internet, and one at work, then during her lunch break she might want to hear music. Cher could play the song directly over the Internet. Furthermore, if networked computers are commonplace, Cher's use may well be a [sections] 110(5) exception for that performance because a networked computer likely becomes a receiving apparatus. If the homestyle exception did not extend to such an application, Cher could download a copy of the song, plug in a set of headphones before playing, and then play the song from the local computer, and enjoy total privacy while avoiding the transmission clause. Many technical work-arounds can be employed to thwart the spirit of the law in this regard, while complying with the letter of the law.

D. Conclusions

Like so many other problems created by the interaction of copyright law with a new technology, "[t]here can be no really satisfactory solution to the problem presented here, until Congress acts." [citations omitted.] But in the absence of a congressional solution, courts cannot avoid difficult problems by refusing to apply the law. We must "take the Copyright Act ... as we find it," [citations omitted] and "do as little damage as possible to traditional copyright principles ... until the Congress legislates.(302) Waiting for Congress to do all the big damage is likely a form of judicial job security.

(**) My heart felt thanks go out to all those who helped with this thesis and put up with me. A partial list follows: my mentor, Professor Thomas G. Field, for being a wonderful sounding board; my readers, Professor Allen S. Hammond, IV, and Professor Edward Samuels; my LL.M. comrades, Professor Eugene R. Quinn, Professor Llew Gibbons, David Morfesi, Esquire, and Lars Smith, Esquire for helping with everything; and to my Mom, and Kari.

(1.) ROBERT BURNS, THE TWA DOGS (1786), quoted in THE OXFORD DICTIONARY 163 (Angela Partington ed., 4th ed. 1992). Obligatory, tenuously related, supposedly deep string of quotes in a lame attempt to demonstrate intellectual prowess; i.e. mine, brain, that is, is bigger than yours, while masking that the breadth of my shallowness is vast.

(2.) Earl MacRauch, THE ADVENTURES OF BUCKAROO BANZAI: ACROSS THE EIGHTH DIMENSION (20th Century Fox 1984) (visited Sept. 27, 1999) <http://kumo.swcp.com/synth/text/buckaroo_banzai_script> (character Buckaroo Banzai speaking to a crowd).

(3.) See infra Part III.A.1 for more information about Dip and Cher.

(4.) See Professional Real Estate Investors, Inc., v. Columbia Pictures Indus., Inc., 508 U.S. 49, 64-65 (1993).

(5.) Throughout this paper, I will use the terms "place constitution" or "place analysis" to refer to the problem of defining what are the metes and bounds of a public place, i.e., what makes a place public with regard to authors' public performance copyrights. Also, I will use the terms "public performance place" and "public place" interchangeably to refer to the location of place constitution.

(6.) A heuristic is a way to "provid[e] aid or direction in the solution of a problem but [is] otherwise unjustified or incapable of justification." WEBSTER'S NEW COLLEGIATE DICTIONARY 533 (1980).

(7.) Students, See infra Part III.A for information about the heuristic.

(8.) See infra Part II.G for discussion on the case law.

(9.) See infra Part II.F for information about the nature standard for public performance analysis and its components.

(10.) See infra Part II.G for discussion on the case law.

(11.) The chart may be a little overwhelming and is provided here in its entirety only to act as a preview. The chart will be detailed, explained, and expanded throughout this paper. One may notice that a shift to a big degree of focus will tend to work to the advantage of a plaintiff wishing to find a public performance. Conversely, a small degree of focus will tend to work to the advantage of a defendant not wishing to find a public performance.

(12.) See infra Part II.D, Shifting Focus, Avoiding Holding Predetermination.

(13.) Section 101 of 17 U.S.C. provides that:
 A work is "fixed" in a tangible medium of expression when its embodiment in
 a copy or phonorecord, by or under the authority of the author, is
 sufficiently permanent or stable to permit it to be perceived, reproduced,
 or otherwise communicated for a period of more than transitory duration. A
 work consisting of sounds, images, or both, that are being transmitted, is
 "fixed" for purposes of this title if a fixation of the work is being made
 simultaneously with its transmission.


Copyright Act, 17 U.S.C. [sections] 101 (1994).

(14.) See 17 U.S.C. [sections] 102(a).

(15.) See 17 U.S.C. [sections] 106.

(16.) Id. (emphasis added).

(17.) These rights are limited to some extent by the First Sale Doctrine or 17 U.S.C. [sections] 109.

(18.) See generally Professional Real Estate Investors, Inc., v. Columbia Pictures Indus., Inc., 508 U.S. 49, 65 (1993) (noting the disagreement among the circuits of the definition of "public place" in their infringement analysis).

(19.) 17 U.S.C. [sections] 501(a).

(20.) See 17 U.S.C. [sections] 504(a).

(21.) See 17 U.S.C. [sections] 502(a).

(22.) See 17 U.S.C. [sections] 505.

(23.) See infra Part II.G for discussion of caselaw from the federal circuit courts.

(24.) Broadcast Music, Inc. v. Rockingham Venture, Inc., 909 F. Supp. 38, 42 (D.N.H. 1995).

(25.) See infra Part II.G for the case law.

(26.) See Broadcast Music, Inc., 909 F. Supp. at 44.

(27.) See Professional Real Estate Investors, Inc., 508 U.S. at 63-65.

(28.) See infra Part II.G.

(29.) See infra Part II.C for discussion of the statutes.

(30.) Throughout this paper, I will concentrate on performances rather than displays. Most of the analysis is equally applicable to both performances and displays; however, where differences exist, I will explicitly mention displays and any variance.

(31.) 17 U.S.C. [sections] 101 (emphasis added); see also Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (3d Cir. 1984) (indicating the statutory definition of "perform" subject to textual omissions).

(32.) See infra Part II.G for information on the case law.

(33.) 17 U.S.C. [sections] 101.

(34.) While mapping the mechanics of public place analysis, it will be useful from time to time to summarize the findings as we go. Therefore, similar heuristic charts embodying public place analysis will appear throughout.

(35.) 17 U.S.C. [sections] 101.

(36.) Id. (emphasis added).

(37.) See Redd Horne, 749 F.2d at 159; see also On Command Video Corp. v. Columbia Pictures Indus., Inc., 777 F. Supp. 787, 790 (N.D. Cal. 1991).

(38.) See 17 U.S.C. [sections] 101; On Command Video Corp., 777 F. Supp. at 790; Redd Horne, 749 F.2d at 159.

(39.) Additional exceptions with regard to secondary transmissions and mere relaying of content are addressed by 17 U.S.C. [sections] 111.

(40.) See 17 U.S.C. [sections] 110(5) (1994). It is definitely not my intent to thoroughly parse the "homestyle exception" here. It has created its own rat's nest of problems that have been the subject of many articles. See generally, Matthew Clarke, Fairness in Music Licensing Act of 1997: Will it End the Confusion Surrounding the Homestyle Exemption of the Copyright Act? 8 DEPAUL J. OF ART AND ENT. L. 141 (1997); Paul Porvaznik, Cass County Music Co. v. Muedini 55 F. 3d 263 (7th Cir. 1995), 6 DEPAUL J. OF ART AND ENT. L. 139 (1995).

(41.) 17 U.S.C. [sections] 110.

(42.) See David M. Lilenfeld, Note, Why Congress Should Eliminate the Multiple Performance Doctrine, 58 OHIO ST. L.J. 695, 705 (1997) (citing 141 CONG. REC. S12079, S12085 (daily ed. Aug. 9, 1995) (Senator Thomas' statement that the Fairness in Musical Licensing Act of 1995 was to "exempt ... small business operators from being charged fees for playing radios and televisions in their establishment")).

(43.) James B. MacDonald II, Comment, Defining The Limits Of The Home-type Receiver Exemption In 17 U.S.C. [sections] 110(5): Cass County Music Co. v. Muedini, 4 VILL. SPORTS AND ENT. L.J. 147, 169 (1997) (citing H.R. Rep. No. 94-1476, at 87 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5701).

(44.) See id.

(45.) See Broadcast Music, Inc. v. Claire's Boutiques, Inc., 754 F. Supp. 1324, 1330-31 (N.D. Ill. 1990).

(46.) MADNESS, One Step Beyond, on ONE STEP BEYOND (WEA/Warner Brothers 1987).

(47.) See Claire's Boutiques, 754 F. Supp. at 1331.

(48.) See id.

(49.) See id. at 1330-31.

(50.) See 17 U.S.C. [sections] 101; On Command Video, 777 F. Supp. at 790.

(51.) Here, we see if there is a performance, and then a transmission of that performance, the only way to not find a public performance exists is via the 110(5) homestyle exception.

(52.) TALKING HEADS, Road to Nowhere, on LITTLE CREATURES (Warner Brothers 1987). My apologies to David Byrne for this allusion.

(53.) See infra Part II.B.3, TABLE 3 for discussion of the public place analysis.

(54.) See 17 U.S.C. [sections] 101.

(55.) See 17 U.S.C. [subsections] 101, 106.

(56.) 17 U.S.C. [sections] 106.

(57.) See id.

(58.) Henceforth, this part of 17 U.S.C. [sections] 101 (1) will be referred to as [sections] 101(1).

(59.) Henceforth, this first portion of [sections] 101(1) "To perform or display a work `publicly'" will be referred to as the "open to the public" subclause.

(60.) Henceforth, this second portion of [sections] 101(1) "To perform or display a work `publicly'" will be referred to as the "substantial number of persons" subclause.

(61.) Henceforth, this portion of 17 U.S.C. [sections] 101(2) will be referred to as the "transmission clause."

(62.) See infra Part II.G for discussion of cases.

(63.) See Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (3d Cir. 1984).

(64.) 17 U.S.C. [sections] 101.

(65.) See Redd Horne, 749 F.2d at 157-58.

(66.) Compare Columbia Pictures Indus. v. Professional Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989), aff'd, 508 U.S. 49 (1993) (holding that an individual guest's hotel room, once rented, is not "open to the public" and therefore does not house public performances) with Redd Horne, 749 F.2d 154 (holding that a business enterprise which consists of exhibiting video cassettes in private booths for a fee does house public performances because the court determined that the relevant location for public place analysis was the entire establishment and not a single booth).

(67.) See Redd Horne, 749 F.2d at 156-57.

(68.) See id.

(69.) Id. at 159.

(70.) See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., No. 83-2594, 1986 WL 32729 , at *1 (C.D. Cal. Jan. 13, 1986), aff'd, 866 F.2d 278 (9th Cir. 1989), aff'd, 508 U.S. 49 (1993).

(71.) See id. at *4. This issue was not addressed in the Ninth Circuit decision because the plaintiff failed to assert the applicability of the "substantial number of persons" clause. See Professional Real Estate Investors, 866 F.2d at 281 n.5.

(72.) Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451,469 n. 15 (1992) (citing Robert Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust, 90 COLUM. L. REV. 1805, 1806-13 (1990)).

(73.) See, e.g., Professional Real Estate Investors, 866 F.2d 278; Redd Horne, 749 F.2d 154.

(74.) See Professional Real Estate Investors, 866 F.2d 278; Redd Horne, 749 F.2d 154.

(75.) Note that the peep show entry is representative of a video showcase or nickelodeon style of business (i.e., the video showcase, peep show, and nickelodeon), which are all similar to movie theatre businesses, and therefore, should be subject to authors' public performance right and should be viewed as public places under the statute.

(76.) See 17 U.S.C. [sections] 101 (1994).

(77.) See id.

(78.) See U.S. CONST. art. I, [sections] 8, cl. 8 (often referred to as the Copyright Clause or the Patent Clause). This clause gives Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their ... [works]." Id. By allowing others to benefit from authors' works, a reduction in the number of works may result.

(79.) In an ad hoc, random, unscientific poll of students of Franklin Pierce Law Center, friends, and family members, I found that all of those arguably reasonable folks thought the outcomes embodied in Redd Horne and PREI were the desired righteous results.

(80.) See id.

(81.) See Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, 866 F.2d 278, 280-81 (9th Cir. 1989); see also Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 159 (3d Cir. 1984).

(82.) See Professional Real Estate Investors, 866 F.2d at 280-81.

(83.) See id.; see also Redd Horne, 749 F.2d at 158-59.

(84.) See Professional Real Estate Investors, 866 F.2d at 280-81.

(85.) See id.

(86.) See id.

(87.) See id.

(88.) See id.; see also Redd Horne, 749 F.2d at 159.

(89.) See Professional Real Estate Investors, 866 F.2d at 281.

(90.) See id.; see also Redd Horne, 749 F.2d at 159.

(91.) See Professional Real Estate Investors, 866 F.2d at 281.

(92.) See infra Part II.G.

(93.) See id.

(94.) Redd Horne, 749 F.2d at 15:3 (discussing the broadening of [sections] 101(1) by the addition of the "substantial number of persons" subclause and noting H.R. Rep. No. 1476, 94th Cong., 2d Sess. 64, reprinted in 1976 U.S.C.C.A.N. 5659, 5677-78).

(95.) See Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 62 (3d Cir. 1986).

(96.) See infra Part II.G for a discussion of case law.

(97.) See Columbia Pictures Indus., Inc., v. Professional Real Estate Investors, Inc., No. 83-2594, 1986 WL 32729, at *4 (CD Cal. Jan. 13, 1986), aff'd, 866 F.2d 278 (9th Cir. 1989), aff'd on other grounds, 508 U.S. 49 (1993); see also Columbia Pictures Indus., Inc., v. Redd Horne, Inc., 568 F. Supp 494, 500 (W.D. Pa. 1983), aff'd, 749 F.2d 154, 158-59 (3d Cir. 1984). See also discussion infra Part II.G.3 for a discussion of the nature standard.

(98.) See Aveco, 800 F.2d at 62- 63; see also infra Part II.G discussing relevant case law.

(99.) See supra Part II.D, Shifting Focus, Avoiding Holding Predetermination.

(100.) See Professional Real Estate Investors, 1986 WL 32729, at *4; see also Redd Horne, 749 F.2d at 158-59.

(101.) See id.

(102.) See supra Part II.D, Shifting Focus, Avoiding Holding Predetermination.

(103.) See Professional Real Estate Investors, Inc., 1986 WL 32729 at *4.

(104.) See id.

(105.) See Professional Real Estate Investors, 1986 WL 32729, at *4 (citing Hoffa v. United States, 385 U.S. 293, 301 (1966)).

(106.) See Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, 866 F.2d 278, 280-81 (9th Cir. 1989).

(107.) See id.

(108.) See id.; see also 17 U.S.C. [sections] 101(1).

(109.) See 17 U.S.C. [sections] 101(1).

(110.) See id.

(111.) See Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 62 (3d Cir. 1986).

(112.) See Polygram Int'l Publ'g, Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1328-30 (D. Mass. 1984).

(113.) See Aveco, 800 F.2d at 63; see also discussion infra Part II.G.2.e Potential Blurring of Public Place Constitution and Contributory Infringement.

(114.) See Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 159 (3d Cir. 1984).

(115.) See Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278, 281 (9th Cir. 1989).

(116.) See id. at 280-81.

(117.) See discussion infra Part II.G.2. Aveco, How Much Is Enough?

(118.) See discussion infra Part II.G. Case Law, Disharmony Harmonized.

(119.) See discussion supra Part II.D. Shifting Focus, Avoiding Holding Predetermination.

(120.) See discussion supra Part II.C. The Statutes, On the Road to Nowhere.

(121.) No. 83-2594, 1986 WL 32:729, at (*)1 (C.D. Cal., Jan. 13, 1986), aff'd, Columbia Pictures Indus. Inc., v. Professional Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989), aff'd on other grounds, Professional Real Estate Investors, Inc. v. Columbia Pictures, Inc., 508 U.S. 49 (1983).

(122.) The Supreme Court considered only the" `sham' exception to ... antitrust immunity ... identified in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), as that doctrine applies [to] ... litigation.... " Professional Real Estate Investors, Inc., 508 U.S. at 51. Professional Real Estate charged that Columbia's suit was anti-competitive, intended merely to "cloak[] underlying acts of monopolization and conspiracy to restrain trade." Id. at 52. The Court held that litigation would not be considered a "sham" in the anti-competitive context "unless [it] is objectively baseless." Id. at 51.

(123.) Professional Real Estate Investors, 508 U.S. at 65.

(124.) See Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 156 (3d Cir. 1984).

(125.) See id.

(126.) See id. at 157.

(127.) See id.

(128.) See id.

(129.) See id.

(130.) See id. at 158-59.

(131.) See id. at 159.

(132.) See id. at 162.

(133.) See id. at 159. This holding is consistent with the lower court ruling, which "[found] that the composition of the audience at Maxwell's is of a public nature, and that showcasing the plaintiffs' copyrighted motion pictures results in repeated public performances which infringe the plaintiffs' copyrights." Columbia Pictures Indus., Inc. v. Redd Horne, inc., 568 F. Supp. 494, 500 (W.D. Pa. 1983) (emphasis added).

(134.) See Redd Horne, 749 F.2d at 157.

(135.) See On Command Video Corp. v. Columbia Pictures Indus., Inc., 777 F. Supp. 787, 790 (N.D. Cal. 1991) (stating "[a] performance may still be public under the transmit clause whether the members of the public ... receive it in the same place or in separate places and at the same time or at different times" (internal quotations omitted)).

(136.) See Redd Horne, 749 F.2d at 159; see also discussion supra Part II.B. Transmissions, Making Performances Public.

(137.) Redd Horne, 749 F.2d at 159 (quoting H.R. Rep. No. 94-1476, at 64 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5677-78).

(138.) See id. at 157.

(139.) See On Command Video Corp, 777 F. Supp. at 790.

(140.) See 17 U.S.C. [sections] 101.

(141.) Compare Redd Horne, 749 F.2d at 157-59 and Columbia Picture Indus., Inc. v. Redd Horne, Inc., 568 F. Supp 494, 496 (W.D. Pa. 1983) with On Command Video Corp., 777 F. Supp. at 790.

(142.) Kudos to Mr. Spock of Star Trek fame. Spock's Quotes (visited Nov. 10, 1999) <http://www.geocities.com/Area51/3253/regular/nimoy_spock_quotes.html>.

(143.) See Redd Horne, 568 F. Supp. at 496 ("These viewing rooms are essentially private booths." (emphasis added)). This admission was even made by the appellate court. See Redd Horne, 749 F.2d at 157 ("In the rear `showcase' area, patrons may view any of an assortment of video cassettes in small, private booths." (emphasis added)).

(144.) See 17 U.S.C. [sections] 101.

(145.) See discussion supra Part II.C.2; see also 17 U.S.C. [sections] 101(1).

(146.) See 17 U.S.C. [sections] 101.

(147.) See Redd Horne, 568 F. Supp. at 496; see also Redd Horne, 749 F.2d at 157.

(148.) Hereinafter the "nature of the place" standard will be referred to simply as the "nature standard."

(149.) See discussion supra Part II.C. The Statutes, On the Road to Nowhere.

(150.) See Columbia Pictures Indus. v. Professional Real Estate Investors, Inc., 866 F.2d 278, 281 (9th Cir. 1989).

(151.) See Redd Horne, 568 F. Supp at 496.

(152.) Id. at 500 (emphasis added).

(153.) See discussion supra Part II.D.1 Focus Pocus.

(154.) See Redd Horne, 568 F. Supp. at 500.

(155.) See id. at 496.

(156.) Id. at 500.

(157.) See discussion supra Part II.D. Shifting Focus, Avoiding Holding Predetermination.

(158.) Up until this point, not much new information was provided in developing a coherent heuristic. Note there is a potential nature standard waiting in the wings.

(159.) See Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 61 (3d Cir. 1986).

(160.) See Columbia Pictures Indus., Inc. v. Aveco, Inc., 612 F. Supp. 315, 316 (M.D. Pa. 1985).

(161.) See Aveco, 800 F.2d at 62-63.

(162.) See id. at 62.

(163.) See id. at 63.

(164.) Id.

(165.) See id. at 61-63.

(166.) See id. at 62-63.

(167.) See id. at 61.

(168.) See id. at 63. "Thus, unlike Aveco's customers, Maxwell's clientele had no control over the video cassette players." Id.

(169.) Id. at 61.

(170.) Id. at 63.

(171.) See id. at 63. The court compared the booths to telephone booths, taxis and pay toilets that, although used by one party at a time, are nevertheless, "open to the public." See id. at 63.

(172.) See id. at 62. The plaintiffs acknowledged "Aveco's customers are the ones performing the works, for it is they who actually ... operate the controls." Id. (second emphasis added).

(173.) Id.

(174.) Id. at 62 n.3 (citing RCA Records v. All-Fast Sys., Inc., 594 F. Supp. 335 (S.D.N.Y. 1984) (provisions of facilities used for unlawful copying enjoined as an infringement) and Italian Book Corp. v. Palms Sheepshead Country Club, Inc., 186 U.S.P.Q. 326 (E.D.N.Y. 1975)).

(175.) Id. at 62 (quoting H.R. REP. No. 94-1476, at 61 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5674).

(176.) See Polygram Int'l Publ'g, Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1324-34 (D. Mass. 1994) (discussing vicarious and contributory infringement in the context of public performance rights); see also discussion infra Part II.G.2.e regarding the potential blurring of public place constitution and contributory infringement.

(177.) One possible way to avoid this liability might be to enforce the disclaimers employed in the video cassette market. The video recording industry and its distributors place the following notice on all videos: "The motion picture contained in this videocassette is protected under the copyright laws of the United States and other countries. This cassette is sold for home use only and all other rights are expressly reserved by the copyright owner of such motion picture. Any copying or public performance of such motion picture is strictly prohibited and may subject the offender to civil liability and severe criminal penalties. (Title 17, United States Code Sections 501 and 506.)" HALF-BAKED (Universal Home Video Inc. 1998.)

(178.) See Polygram Int'l Publ'g, Inc., 855 F. Supp. at 1328-29.

(179.) Title 17 of U.S.C. [sections] 109 generally provides an exception for video store owners to rent videos. However, an extreme reading of Aveco suggests that a "knowing" "authorization" of a public performance, not for the rental itself, on the part of a video renter would render the renter liable. See Aveco, 800 F.2d at 63.

(180.) Perhaps video rental stores can protect and indemnify themselves by making each rental subject to a "shrink wrap" license. See generally LLEW GIBBONS, Non-Preemption Defenses to Copyright Feudalism for more information on shrink-wrap licenses. Alternatively, as part of the store membership, stores could require patrons to indemnify the rental shop from any subsequent unauthorized public performances.

(181.) See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

(182.) See id. at 419-20.

(183.) See id. at 422-23.

(184.) See 35 U.S.C. [sections] 271(c) (Supp. II 1996).

(185.) See Sony, 464 U.S. at 439-40.

(186.) 35 U.S.C. [sections] 271(c).

(187.) Sony, 464 U.S. at 464 (Blackmun, J., dissenting).

(188.) Id. at 498-99 (Blackmun, J., dissenting) (emphasis added).

(189.) See id. "The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather we need only consider whether ... a significant number of them would be noninfringing." Id. (second emphasis added). As the Ninth Circuit had noted below, the Betamax was "sold `for the primary purpose of reproducing television programming ... virtually all [of which] is copyrighted material.'" Id. at 428 (quoting Universal City Studios, Inc. v. Sony Corp. of America, 659 F.2d 963, 975 (9th Cir. 1981)). See also discussion infra Part II.G.1.c.

(190.) See Sony, 464 U.S. at 439-40. The Court notes patent law provides the "closest analogy" due to the "historic kinship" between the two disciplines. Id. at 439. However, the dissent criticizes this approach as, without Congressional authorization, illegitimate. See id. at 500 (Blackmun, J., dissenting).

(191.) See Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 62 (3d Cir. 1986); see also Livnat v. Bar Lavi, No. 96-CIV-4967, 1998 WL 43221, at * 1 (S.D.N.Y. Feb. 2, 1998).

(192.) 158 F.3d 693 (2d Cir. 1998).

(193.) See id. at 695.

(194.) Id. At 707.

(195.) Id. To consider producers, whose products have "substantial noninfringing uses," contributory infringers would bring those products "within the scope of the copyright owner's control, [and] may enable the copyright owner to influence the price and availability of goods that are not directly connected to its copyrighted work." Id. (quoting 2 PAUL GOLDSTEIN, COPYRIGHT [sections] 6.1.2 (1996)).

(196.) Id. at 707 (emphasis added).

(197.) Id. at 707 n.23.

(198.) Id. (citations omitted) (emphasis added).

(199.) No. 96-CIV-4967, 1998 WL 43221, at *1 (S.D.N.Y. Feb. 2, 1998).

(200.) See id. at * 1-2.

(201.) Id. at *3 (quoting Sony, 464 U.S. at 435 n. 17).

(202.) Id. (citing Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (quoting Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 396-97 (1968))).

(203.) Id. (citing Demetriades v. Kaufmann, 690 F. Supp. 289, 294 (S.D.N.Y. 1988)).

(204.) Id. (quoting 3 MELVILLE B. NIMMER, DAVID NIMMER, NIMMER ON COPYRIGHT [sections] 12.04[A][2][a] at 12-75 (1996)) (emphasis added).

(205.) 821 F. Supp. 616 (N.D. Cal. 1993), aff'd in part, rev'd in part, 35 F.3d 1435 (9th Cir. 1994).

(206.) Id. at 625 (emphasis added).

(207.) See Columbia Pictures Industries, Inc. v. Aveco Inc., 800 F.2d 59, 62 (3d Cir. 1996).

(208.) See discussion supra Part II.G.2.b regarding "lack of control" as a component of public place analysis.

(209.) Aveco, 800 F.2d at 62 (quoting H.R. REP. NO. 94-1476 at 61 (1976), reprinted in 1976 U.S.C.C.A.N. at 5674) (emphasis added).

(210.) See id.

(211.) Id.

(212.) Id. at 62 n.3.

(213.) See discussion supra Part II.G.2.c regarding patent law's "substantial noninfringing use" test as a determinator for lack of control.

(214.) Aveco, 800 F.2d at 62 n.3 (citing RCA Records v. All-Fast Sys., Inc., 594 F. Supp. 335 (S.D.N.Y. 1984) and Italian Book Corp. v. Palms Sheepshead Country Club, Inc., 186 U.S.P.Q. 326 (E.D.N.Y. 1975)) (emphasis added).

(215.) See id. at 62 (quoting H.R.Rep. No. 94-1476 61, reprinted in 1976 U.S.C.C.A.N. at 5674; see S.Rep. No. 473, 94th Cong., 1st Sess. 57 (1975)).

(216.) See infra TABLE 7 for information about how this analysis fits into the overall picture of public place constitution.

(217.) See Aveco, 800 F.2d at 63; see also discussion supra Part II.D, Shifting Focus, Avoiding Holding Predetermination.

(218.) See discussion infra Part III.A for an evaluation of the heuristic.

(219.) See Aveco, Inc., 800 F.2d at 63.

(220.) Id.

(221.) See id.

(222.) The temporal build up of the case law quizzically left a blank spot in the development of public place analysis. However, ignoring the blank structure in the chart, we start seeing that control, or a lack thereof, may affect nature analysis, and consequently, the determination of whether a place is public or not.

(223.) 866 F.2d 278 (9th Cir. 1989), aff'g No. 83-2594, 1986 WL 32729 (C.D. Cal. Jan. 13, 1986), aff'd on other grounds, 508 U.S. 49, 65 (1993).

(224.) See id. at 280.

(225.) See Professional Real Estate Investors, Inc., 1986 WL 32729, at *2.

(226.) See Professional Real Estate Investors, Inc., 866 F.2d at 280.

(227.) See id. at 281.

(228.) See id.

(229.) See id. at 281-82.

(230.) See id. at 281. The court noted that hotel rooms are only "open to the public" until they have been rented, after which the patron enjoys a "substantial degree of privacy, not unlike in [her] own home[ ]." Id.

(231.) See id. The court below had explicitly stated "[t]his decision is not contrary to the recent decisions in the Third Circuit." Professional Real Estate Investors, Inc., 1986 WL 32729, at *5.

(232.) See Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1020 (7th Cir. 1991). "We find that Professional Real Estate Investors did not `change' the law. ... We agree with the rationale of ... Redd Horne and Aveco: the proper inquiry is directed to the nature of the place in which the ... booths are located, and whether it is a place where the public is openly invited." Id. The court described the examination of the nature of the establishment as "compatible with our view that the Copyright Act contemplates a broad interpretation of the concept of `public performance.'" Id.

(233.) Professional Real Estate Investors, Inc., 866 F.2d at 281.

(234.) See discussion supra Part II.D.1.

(235.) See Professional Real Estate Investors, 866 F.2d at 281.

(236.) Id. (citing Stoner v. California, 376 U.S. 483,490 (1964)).

(237.) Id.

(238.) Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, No. 83-2594, 1986 WL 32729, at *4 (C.D. Cal. Jan. 13, 1986) (citing Hoffa v. United States, 385 U.S. 293,301 (1966)).

(239.) Id. at *5.

(240.) See supra Part II.G.2.c for discussion of the patent "substantial noninfringing use" test as a determinator for lack of control.

(241.) See Professional Real Estate Investors, 866 F.2d at 280-81.

(242.) See supra Part II.D, Shifting Focus, Avoiding Holding Predetermination.

(243.) 749 F.2d 154, 159 (3d Cir. 1984).

(244.) 800 F.2d 59, 63 (3d Cir. 1986).

(245.) See Professional Real Estate Investors, 866 F.2d at 281.

(246.) See Redd Horne 749 F.2d at 159.

(247.) See Aveco, 800 F.2d at 63; Professional Real Estate Investors, 866 F.2d at 281.

(248.) See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 64 (1993).

(249.) See id. at 51.

(250.) Id.

(251.) Id. at 65.

(252.) Id. at 51, 64-65 (citations omitted).

(253.) See id. at 51.

(254.) See id.

(255.) See id. at 51, 65.

(256.) Id. at 64.

(257.) Id. at 64-65 (citations omitted).

(258.) Id.

(259.) Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1020 (7th Cir. 1991) (emphasis added).

(260.) See Columbia Pictures Indus., v. Professional Real Estate Investors, Inc., 866 F.2d 278, 281 (9th cir. 1989), aff'd, 508 U.S. 49 (1993).

(261.) See Professional Real Estate Investors, 1986 WL 32729, at *5.

(262.) See Video Views, 925 F.2d at 1020.

(263.) See Professional Real Estate Investors, 508 U.S. at 51, 65.

(264.) Now the flow of the analysis starts to gel and one can see that the determination of a place's nature is affected by issues of control and privacy. The major effect is to provide a deterministic, rather than arbitrary, mechanism to shift the focus from the entirety to a subcomponent. See supra Part II.D. Shifting Focus, Avoiding Holding Predetermination. The result, although a bit involute, is a heuristic that harmonizes the apparent discord in the case law and statute.

(265.) See Columbia Pictures Indus., Inc., v. Professional Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989); Columbia Pictures Indus., Inc., v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984); Columbia Pictures Indus. Inc., v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986).

(266.) See On Command Video Corp. v. Columbia Pictures Indus., Inc., 777 F. Supp. 787 (N.D. Cal. 1991); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010 (7th Cir. 1991).

(267.) See Video Views, 925 F.2d at 1012.

(268.) See id.

(269.) See id.

(270.) See id.

(271.) See id. at 1018-19.

(272.) See id. at 1019.

(273.) See id. at 1020.

(274.) See id. at 1019.

(275.) See id.

(276.) See id.

(277.) See supra Part II.G.3.d for discussion of whether Professional Real Estate Investors changed the law.

(278.) 777 F. Supp. 787, 788 (N.D. Cal. 1991).

(279.) See id.

(280.) See id.

(281.) See id.

(282.) See id.

(283.) See id. at 790.

(284.) See id. at 789.

(285.) See id. at 790.

(286.) See id.

(287.) Id.

(288.) Id.

(289.) Id. at 790.

(290.) See supra Part II.B for information about transmissions; Part II.G.1.a.

(291.) This completes the build up of a public place analysis heuristic.

(292.) See supra Part I for the hypothetical detailing Dip and Cher.

(293.) See supra TABLE 9, A Summary of Public Place Analysis.

(294.) See supra Part II.B, Transmissions, Making Performances Public.

(295.) Of course, this assumes that Cher's copying of sound recordings from compact disc into another format was not an impermissible making of copies.

(296.) See supra Part II.B.

(297.) See supra Part II.G.1, Redd Home, Holding Shell Game.

(298.) See supra Part II.G.2, Aveco, How Much Is Enough.

(299.) See supra Part II.G.3 for a more complete discussion of Professional Real Estate Investors.

(300.) See, e.g., Yahoo!, Computers and Internet:Internet:Interesting Devices Connected to the Net: Web Cams (visited Feb. 12, 1999) <http://dir.yahoo.com/Computers_and_Internet/Internet/ Interesting_Devices_Connected to the_Net/Web_Cams/>.

(301.) The average computer's increasingly high capability, to the point where the average computer can be a mega music jukebox, is something the courts and the legislature will have to resolve because unless it is connected to the Internet, it is not considered a receiving apparatus.

(302.) Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 500 (1984).

John Kheit, John Kheit works at Morgan & Finnegan in New York City. His prior experience includes stints in both law firm and corporate settings. Also, John has taught at Harvard University and at Franklin Pierce Law Center. In addition to his legal experience, John has hands-on experience in the computer software industry involving the technical development of software and in software business negotiations and licensing. John received: a L.L.M. in Intellectual Property law from Franklin Pierce Law Center; a J.D. from New York Law School with a concentration in Telecommunications law where he was an associate editor on the Media Law & Policy journal; and a B.A. in Computer Science and a M.B.A. in International Business, Finance and Negotiations, both from Rutgers University.
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