Actually, I think you may have a case. It would depend on what kind of distro deal you have set up. Just because someone buys your DVD doesnt mean they can rent it unless that chain or store has the agreement or license to prove that they can rent your DVD. That would be no different than me buying a copy of Mission Impossible and then renting it out to my rents for a small charge.

The reason video stores paid a higher cost for videos was because they were going to rent the video and make money off of it,

First thing I would is get out your distro contract and look through it. See if it has anything regarding rentals and if it doesnt, contact your atty IMMEDIATELY. Your atty should send out a C&D letter immediately and demand compensation from the rentals.

If you are concerned about this, then by all means, contact your lawyer and let him handle the matter.

Dani,

NO, they cannot rent your DVD for profit. They cannot exhibition it to a group of people in a bar without your consent, much less rent it to the public and collect money.

Have your lawyer contact them.

Here's what my agreement with CustomFlix says (and CustomFlix is the only possible place they could have purchased this - even if they buy it through Amazon, the final sale goes through CustomFlix):

--------
3.3 You and we mutually acknowledge that each party owns the intellectual property rights in its own content, products, services and images, including without limitation rights protected by patent, copyright, trademark, trade secret and right of publicity laws. We own any and all rights, including copyrights, in and to the CustomFlix Service and business, including the concepts, ideas, know-how, processes and procedures, architecture and design templates underlying the CustomFlix Service in whole or in part. We do not own any video Content, text, graphics, images, designs and "look and feel" provided by you. Nothing in this Agreement creates any right, title or interest for the benefit of either you or us in the intellectual property rights of the other.
---------

As to legal action: Definitely an attorney would cost me more that any money I'd recover, but I like the idea of a C&D letter.
Anybody have a generic C&D template for a letter?
On the other hand, I wonder if renting the DVD ever spurs any of their patrons to buy our DVD.

Really, it's small change I'm sure, but the principle of the thing itches at me. It does seem they should have obtained an agreement from me in order to be able to do this.

I sell my DVDs with clear EULAs (end user license agreements) prohibiting resale, rental, commercial usage ... anything other than private in-home viewing is a term of sale. Anybody who buys my DVDs must agree to those terms, or they can't buy it. It's a contract between buyer and seller. If they try to violate the terms of sale, I have one of my lawyers send a C&D, and I file a criminal copyright /DMCA etc charge with police. Then I can take the case number/report to court, and win civil damages. I've never lost a case.


Ken

It depends:

"Owners of copyright in films do not have a right under the Copyright Act to control rental. In practice, rental of
videos and DVDs is regulated by contracts between the suppliers and the rental outlets."

In general you cannot limit under copyright a right that you do not have. You cannot rent or loan a copyright, therefore you cannot limit that right to those who have purchased a legitimate copy. Computer software is different, you have not purchased a copy, you have purchased a licence. Books however are a copy, you own a legitimate copy of a book you may rent, lease or lend it.
Movies are the same, except for any music contained in the movie. If all the music is public domain you might have a problem controlling the rental, that's why you cannot usually rent a CD.

Lots of good info here: http://www.copyright.org.au/publications/infosheets.htm

Scroll down to "R" for rental.

Although this is Australian information we're now pretty much in line with USA and the rest of the world.

Bob.

thanks Bob... good points... I sell my DVDs as licensed content, exactly as if they were buying software, and not simply as recorded media... it would be helpful to learn other tactics to keep our DVDs out of rental circulation and off ebay (and off bittorrent streams too for that matter)...

ken

Ken, i'm not a lawyer, but i do recall reading in some of these copyright threads that resale is a legal right granted to any media owner. Note that i didn't say "intellectual material" owner. Anyone who has purchased media with your material on it has the right to resell the media, along with your material on it. I don't believe it is legal to prevent such resale, at least not in the USA anyway.

I assume that means every purchaser has to 'sign' a licence agreement. In your case a good idea however it wouldn't work for storefront retail sales.
I think this is the reason DVDs are available for rent before they're available for sale. The distributors can enter into an a licencing agreement for the rental but once the DVD is available for retail sale they could just buy a retail copy and rent that out.
I suspect what the ACC is talking about re the music is if the copyright to the music is not embodied in the copyright to the movie, i.e. the copyright holders for the movie only hold a licence for the music.

So, interesting point here. If you use music from SFPro or Cinescore in your movie then your movie cannot be rented out without you issuing a licence, can you even issue such a licence?

Bob.

I've talked with the local video store guy about this a bit. He can go to Wally World & buy DVD/VHS or console game & rent it out no problem. However, it says right on the package: "for sale, rental and distributation in the United State, Canada and Mexico only" (or something along those lines, it normally just varries with the country).

But those SAY they can be rented. If you say your videos aren't allowed to be rented (like on the cover) then you have a case. If I were to go against you in court I'd say that all other videos let me rent, you never gave me a thing saying I lacked that right, which is assumed in the video business.

re: ken

for the torrent's I belive you can contact the FBI's copyright division. Odds are they won't help but you'd be another stat when game/movie piracy figures come out. :) as for people re-selling then, I thinkg Chien's right. Unless every person signs a paper saying that they can't re-sell, there's not much you can do. Then again, I wouldn't NEVER buy a video that had that provision on it. Even if I did sign a paper you couldn't stop people selling it to another person on the street or a friend. Honestly, you'd just look like a money hungry corp exec like the music industry ones do. Not saying you are but that would be what people would start to assume/say (I never put a restriction like that on any vid's I sell. People know if sales didn't exist I wouldn't do vid work for them anymore at all)

I guess on this thread I am the only person who has ever dealt with, or been a part of, the video rental biz. If not excuse me - but reading the repsonses thus far lead me to feel this way. (well - US anyway. Shannon is very wrong with most of his comment for example - "NO, they cannot rent your DVD for profit." = Wrong. "They cannot exhibition it to a group of people in a bar without your consent..." = true, "much less rent it to the public and collect money." = Wrong. Bob on the other hand is right on - he is in Oz but seems like they are a lot like the U.S in how the define first sale)

Ok - first of all from what I understand Dan has a distribution deal with someone. The whole point is that they offer your film for sale to the public - which includes stores, libraries and my next door neighbor. Now say Blockbuster comes in and buys 5,000 copies of it and you see it being rented. Nothing you can do. Now say the mom and pop down the street buys two copies they rent it. Again, nothing you can do. Say my neighbor buys one copy and lets all his friends borrow it for free. Nothing you can do.

Do a search in these forums for my thread on George Atkinson when he died. Short version is he opend the first video rental store and was threatend with a lawsuit for renting video but he won because the copyright law allows for rental. Look up the "First Sale Doctrine" to get more details. People tried for years to pass a law that would, as many are suggesting here, allow someone to prevent a store from renting videos without permission from the copyright holder. The proposed law fizzled in Congress in 1984.

Now there are some logical exceptions to this - say you had no distribution at all and someone copied a screener and rented it (or sold it for that matter). No, clearly not acceptable. Say your film airs on some cable outlet, is taped, and is rented or sold. Again - not acceptable. (although there is a fine line with things like "I taped it and it is my copy so I am just selling off the copy I taped" and "I am really only selling the tape stock and there happens to be this HBO special taped on that stock." Look around ebay for many examples of this sort of thing. And this is sort of an offshoot of the whole Sony Corp. v. Universal City Studios, Inc. lawsuit)

Ok ok - so some will still say "Ok Filmy has no clue, he really is full of it. Get lawyer." Fine - pay a lawyer and they will tell you something along the lines of the following: Public Distribution.—Clause (3) of section 106 establishes the exclusive right of publication: The right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Under this provision the copyright owner would have the right to control the first public distribution of an authorized copy or phonorecord of his work, whether by sale, gift, loan, or some rental or lease arrangement. Likewise, any unauthorized public distribution of copies or phonorecords that were unlawfully made would be an infringement. As section 109 makes clear, however, the copyright owner’s rights under section 106 (3) cease with respect to a particular copy or phonorecord once he has parted with ownership of it.

In basic terms it means that anyone who has actualy bought a copy of your publicy available video can do almost anything with it in the scope of the copyright law. You allowed someone to sell your DVD - this much you have control over. But once that copy is sold you no longer have any say. So I can buy a copy of your DVD and than resell it if I want to. If I happen to own some sort of video store I can sell it there and rent is as well. Or I could loan out my copy to anyone who wanted it - as could a Library who had also purchased a copy. I can put it up on Ebay for sale, I can take it into any store that will buy used DVD's.

Now video (DVD) has sort of gone unchallaged since 1984 but other forms have - so there was The Record Rental Amendment of 1984 and the Computer Software Rental Amendments Act. People tried to get games to fall under software but that didn't fully go through.

No one here has to beleive me yet - but that is your choice. But it is true and it is the law.

EDIT - oh - how could I forget the DMCA. My bad. A lot of talk about various things including the whole concept of First Sale. In part the summary says: We recommend no change to section 109 at this time. Although speculative concerns have been raised, there was no convincing evidence of present-day problems. In order to recommend a change in the law, there should be a demonstrated need for the change that outweighs the negative aspects of the proposal. The Copyright Office does not believe that this is the case with the proposal to expand the scope of section 109 to include digital transmissions. The time may come when Congress may wish to address these concerns should they materialize.

[SNIP]

Section 109 permits "the owner of a particular copy or phonorecord lawfully made" under title 17 to distribute that copy without the copyright owner's permission. To the extent that section 107 permits a user to make a backup copy of a work stored on a hard drive, that copy is lawfully made and the user owns it. Section 109, on its face, appears to permit the user to sell or otherwise dispose of the possession of that backup copy. The legislative history can be read to support either view.

[SNIP]

The question of contract preemption was raised by a number commenters who argued that the Copyright Act should be amended to insure that contract provisions that override consumer privileges in the copyright law, or are otherwise unreasonable, are not enforceable. Although the general issue of contract preemption is outside the scope of this Report, we do note that this issue is complex and of increasing practical importance, and thus legislative action appears to be premature. On the one hand, copyright law has long coexisted with contract law. On the other hand, the movement at the state level toward resolving questions as to the enforceability of nonnegotiated contracts coupled with legally-protected technological measures that give right holders the technological capability of imposing contractual provisions unilaterally, increases the possibility that right holders, rather than Congress, will determine the landscape of consumer privileges in the future. Although market forces may well prevent right holders from unreasonably limiting consumer privileges, it is possible that at some point in the future a case could be made for statutory change.

To read the entire summary go here: Executive Summary - Digital Millennium Copyright Act

Filmy,
you and I are in agreement, the US law reads pretty much the same as the law down here. Basically the core principal is you cannot restrict the rights that you don't have.

You cannot rent or lease copyright, you either own it or you don't. You cannot rent the copyright to your work, if you could then two or more people could at one time control the copyright and that's obviously absurd.

Because you don't have that right you therefore cannot control others doing that with a legitimate copy. They have paid what you asked for the copy and the right to view it, therefore they can loan or rent it out.

If you are not selling copies then all bets are off. If you are just licensing the right then that licence / contract can include all the exclusions you like. Of course good luck getting any retailer to require every purchaser to sign a licence.

And you can print what you damn well like on a box, it means zip in law without a binding, signed contract.

Bob.

As the original poster, I certainly appreciate all the thoughtful and well-researched advice. I must say it's a blessing to have this forum.

So I guess the short answer is I'm SOL as far as putting this to a stop or seeing any of the profits.

I'm really just a hobbyist who puts out a DVD from time to time, but I must admit even this small incident gets under my skin. If it was a library loaning my copy I'd be okay with that (even though that could be easily pirated). The library wouldn't be profiting from my blood, sweat, and tears like this rental place. If I were a pro like you guys, I don't know if I could sleep at night wondering if people were pirating my work.

I'll tell you what, making and distributing DVDs has certainly opened my eyes to the issues involved with copyright and piracy with digital media.

Dan

Take some consolation in this. For many of my biggest clients productions their largest sales sector is public lending libraries. Every library in the land buys a copy, that's a lot of copies and some of the titles sell for $100s. Also libraries loose things and / or might buy more than one copy. Plus when audio cassette went the way of the dodo they got to sell them another set on CD.

I'd also take some comfort in the fact that a rental business rekons your product will make them a return, you need to rent fair amount to get your money back and around here video rental shops are not a great money maker judging by the number closing.

Dan, i know how you feel. I've shipped a fair number of discs from my store and i now have downloads available right from my website. I always fear the possibility that someone will purchase (or obtain in some other way) my body of work and then resell it in bulk without me getting the money. I suppose copyrighting gives me some protection, but that's only if i am aware of the theft and have the wherewithall to take action against it. No one else is going to do that for me. I just keep plodding on, offering fresh content at fair prices, and trust that most folks will do the honest thing. So far quite a few have.

What supercedes existing case law (from my understanding; I'm not a lawyer and this isn't legal advice, consult with a qualified IP lawyer yourself) is that individual licensing and pre-sale terms and conditions that are agreed upon by specific buyers and sellers.

So yes my customers do digitally 'sign' an agreement forbidding resale or rental - since I'm selling the content on the DVD as individually-licensed /EULA content - not as simple media.

So my understanding of it is that, if you specifically, explicitly, before the sale is done, on the box and in your terms and condition, state that the product cannot be rented nor resold, and the customer agrees to those terms by buying, than it's an individually binding license agreement between buyer and seller. And of course if the prospective customer doesn't agree to those terms, they can't/won't buy.

Much like how you can't go buy digital juice DVDs and then rent them out nor resell them, nor put them on a network for everyone in your company to use, legally - since the license is per-person.

Ken

p.s. also, I refuse to sell to buyers in malaysia, china, russia, east europe or south america, due to rampant piracy.

"p.s. also, I refuse to sell to buyers in malaysia, china, russia, east europe or south america, due to rampant piracy."

If you think piracy is only rampant in those countries, think again. The USA is just as bad as tyhe other countries with the only difference is you dont see a ton of people selling them on the corners. Instead, they usenewsgroups, bit torrents, P2P etc... If you think piracy isnt as rampant here in the states then why else would the MPAA and RIAA be spending so much resources suing everyone?

Ken re-read my post. It is extremely clear what the law is in the US. While you can control "first sale" you cannot control what happens after that.

...on the box and in your terms and condition, state that the product cannot be rented nor resold, and the customer agrees to those terms by buying, than it's an individually binding license agreement between buyer and seller.

And this is exacly what was talked about in reguards to the whole DCMA, which i quote in the last part of my post above and will re-quote a bit here: On the one hand, copyright law has long coexisted with contract law. On the other hand, the movement at the state level toward resolving questions as to the enforceability of nonnegotiated contracts coupled with legally-protected technological measures that give right holders the technological capability of imposing contractual provisions unilaterally, increases the possibility that right holders, rather than Congress, will determine the landscape of consumer privileges in the future. Although market forces may well prevent right holders from unreasonably limiting consumer privileges, it is possible that at some point in the future a case could be made for statutory change.

Some keywords are "in the future" and part of that is simple - technology. The limited use DVD's that came out for example. After 5 or so plays that is it. Macrovision and other copy protection is a type of this as well. As Bob pointed out in his post just because you put somehting on a sleeve or even at the head of a show, doesn't mean it voided the whole concept of First Sale. If I buy a copy of your DVD and I want to sell it at a garage sale you, currently, would not be able to stop me. As section 109 makes clear, however, the copyright owner’s rights under section 106 (3) cease with respect to a particular copy or phonorecord once he has parted with ownership of it. and notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

On a like topic - I have several movie posters. (1- sheets, a fre britsh quads and so on) At the bottom of the US 1-sheets it clearly says the posters are property of the MPAA and can not be resold. How come every collectable shop around the world has not been shut down? Look at the "previously viewed" DVD and Video section. Most all of this product also has the normal junk on it as well. Yet the previously viewed market is huge and places like DV&A are not entanlged in copyright lawsuits.

Just another tidbit of info.
I spoke with a good friend of mine who use to work for a dub house back in the VHS days. The rental oulets used to pay around 6 times the retail price for a VHS. Of course they got to buy those copies before they went on sale to the general public, so they have a window of opportunity to make a dollar on the inflated price.

Bob.