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What is the definition of “Public Performance” and does it affect how I can use a Kaleidescape movie server, as in a shared theater?

Copyright is a property right that gives the copyright owner of an original work certain exclusive rights which includes the right to authorize or prohibit the public performance or display of that work. You can assume that every Blu-ray quality movie, DVD quality movie, and CD that you purchase or rent is copyrighted.

Section 101 of the Copyright Act defines Public Performance as follows:

To perform or display a work “publicly” means —

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

Section 110 of the Copyright Act contains a substantial limitation on the copyright holder’s right to prohibit public performances and displays for certain teaching activities.

Note that if the place is public (open to the public) or the work is transmitted to the public then it makes no difference how many people attend. If the place is not open to the public (such as your home, your dorm room, a rented home where the public can be excluded), and most everyone there is in your circle of family and social acquaintances (no matter how many), the performance would most likely not be considered to be public. Also note that it doesn’t matter whether there is a charge for viewing the performance.

If you have questions about the legality of your contemplated use of the Kaleidescape movie server, we encourage you to consult an attorney because Kaleidescape cannot provide legal advice, and the specific facts of your situation may be significant.

For example, suppose you live in a luxury condominium complex that has a shared theater. Owners sign up to use the theater. Can the condominium complex buy a Kaleidescape movie server for use in the shared theater? Kaleidescape will certainly sell a Kaleidescape movie server for use in such a shared theater.

We believe that viewing videos in this type of shared theater would most likely not be considered a “public performance,” assuming that the theater is never open to the public and there are never a substantial number of persons in attendance outside of the normal circle of family and social acquaintances of the owner who booked the theater. If the discs imported onto the Kaleidescape movie server are purchased by the condominium complex or by the individual owners, and they are not used for anything else, then the shared use of these discs would be analogous to loaning some discs to a friend, which to our knowledge is perfectly legal.


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