Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/174

158 performance license would be infringing. That same year, Utah’s Attorney General wrote that the Utah State Prison could not show videotapes of movies to inmates even if the inmates were limited to groups of twenty or less. The Alaska Attorney General similarly held that their Department of Health and Social Services could not show rented videos to inmates. In 1985, however, the Attorney General of Louisiana ruled that their Department of Corrections could show films rented from local stores to groups of between twenty to thirty prisoners, reasoning that those performances were not public. Then, in 1988, the Louisiana Attorney General reaffirmed the 1985 ruling, but held that showing tapes to audiences of two- to three-hundred inmates would be infringing.

Performances are public if a substantial number of people have the potential to see or hear a protected work over the course of time, regardless of how many people actually see or hear it at a particular time or place. A few cases illustrate how courts determine when a performance is public.

The first case involved a video store that played tapes rented by their customers in small two- to four-person viewing booths. The U.S. Court of Appeals for the Third Circuit decided that this arrangement was similar to a movie theater with the added feature of privacy, and concluded that such performances were public. Two years later, the same court, ruling in a case with a slightly different twist, held that a video store could not rent videotapes and allow the renters to play the tapes in small viewing rooms in the store.

A line was drawn in 1989 when the Ninth Circuit Court of Appeals held that a rented hotel room is not a public place, and that a hotel could rent videotapes to their guests for viewing on equipment in their rooms. So a guest could receive Room Service at the Hilton and rent the 1938 Marx Brothers film at the same time.