Moot Court

Spring 1998

Super Cool Universal Movies, Inc. et al. v. Buy Your Own Booth, Inc.

Ruling on Motion for Summary Judgment
District Court for the District of New Hampshire

Elmo Clewlus, J., sitting by designation.
Super Cool Universal Movies, Inc. (SCUM) and other distributors of films and videorecordings seek full relief following regular performance at Buy Your Own Booth, Inc. (BYOB) of videos in which they severally hold copyrights. Insofar as their complaint is based solely on copyright, this court has jurisdiction under 28 U.S.C. 1338.
I herein grant BYOB's subsequent motion for summary judgment on the grounds that indisputable facts establish no basis for awarding plaintiffs relief.

I. Facts      Critical facts are undisputed. BYOB, operates year-round, 24 hours a day in Concord, NH. Its facility is approximately 40 by 40 feet, with a small lobby and eighteen much smaller rooms in the rear. The lobby has, e.g., popcorn and candy for sale. Behind a counter are shelves full of videocassettes and a door leading to the other rooms.
     Besides renting videos, patrons may rent a room. Charges are based on the time of day and room size. About 20% of the rooms hold up to four people; another 30% hold up to three. Strangers are never grouped. After an attendant escorts patrons to their rooms and leaves with the key, doors can be locked from inside and complete privacy enjoyed.
     Rooms, about four by seven feet, vary in shape. Occupants can toggle the light on or off. A typical room has deep-pile carpet on floors and walls and (1) a small refrigerator stocked with beverages and ice-cream for sale, (2) one or two futons with three-inch-thick plastic-covered cushions, and (3) an ordinary home entertainment stand holding a multi-head VCR and an ordinary thirty-two inch color TV. Simple wires connect four speakers that deliver Dolby surround sound and hang from the ceiling with $5.00 ropes designed for that purpose. Everything of that kind was bought at a local NobodyIsMoreInsaneThanMe electronics store.
     This dispute arose after a local theater owner griped to a distributor about losing sales to this "amateur movie house." Having heard similar reports from others, she brought the matter to the attention of the copyright owners whose works she distributes. SCUM sent notice to BYOB to cease its infringing activities. BYOB refused, and this action was filed.

II. Infringement and Defenses Plaintiffs claim that BYOB's on-site showings constitute "public performances" to which they have exclusive rights under 17 U.S.C. § 106(4). They emphasize that BYOB's ads regularly appear in the entertainment sections of local newspapers and feature popular videos. They also argue that BYOB is clearly open to the public, i.e., it is a "place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered". 17 U.S.C. § 101 (To perform or display a work "publicly").
BYOB counters that its rooms are no more "public" than patrons' homes where some view rented videos. It also points out that its new slogan: "Kids driving you nuts? We can help!" -- does not make BYOB a theater, regardless of where it appears. BYOB also takes apparently misguided solace from §110(5), pointing out that no room contains more than one set of "home-style" equipment, in stark contrast with theaters which use far more sophisticated equipment.

III. Discussion      At bottom, this case turns on whether BYOB operates a "theater" or a "hotel". The facts clearly indicate the latter. It is hard to see how the fact that BYOB's ads once emphasized entertainment more than escape has current relevance. Taking inspiration from its new slogan, BYOB patrons increasingly seek refuge from their children -- particularly those who cannot, for various reasons, manage an entire night in a hotel. Thus, BYOB provides a less expensive and otherwise attractive alternative.
     The perception that BYOB's facility is far more akin to a hotel than a theater is also confirmed by BYOB's use of perfectly ordinary TVs and VCRs. Its equipment seems exceedingly modest. This court takes judicial notice of the fact that much larger TVs and more sophisticated electronic equipment may be purchased from Sears. As urged by BYOB, no respectable theater would be "caught dead" using it.
     No additional charge is made to see videos at BYOB. Hence, it is difficult to ascertain an "admission charge" that one would associate with a theater. That patrons may also rent rooms or buy refreshments changes nothing. It is difficult to find a hotel that does not offer similar amenities. Perhaps more significantly, it seems irrefutable that BYOB offers its patrons privacy on a par with that of hotels and that the equipment it provides is commonly used in hotels.
     SCUM speculates that some patrons may use BYOB's facilities for less moral purposes than escaping from children, but that seems equally true of hotels. What can be made of this non-distinction? It is difficult to see what bearing further factual inquiry into that or other matters would have on plaintiffs' rights. Hence summary judgment is appropriate.
     Last, as a matter of pure policy, to find plaintiffs' rights violated under these circumstances would be, inescapably, to establish a treacherous precedent. Would hotels be forbidden from leasing lobby space for video rentals? Would video rentals be forbidden next door to a hotel; on the same block? Where and how would courts draw the line?

IV. Relief Based on this record, plaintiffs are entitled to no relief. Moreover BYOB is awarded costs and attorney fees in defending itself against this almost frivolous suit.

To students: SCUM et al. filed timely appeal, to the 1st Circuit, challenging both the district court's grant of summary judgment and its award of costs and attorney fees in favor of BYOB.

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