Judge Richard P. Matsch of the United States District Court for the District of Colorado on Wednesday filed this opinion granting partial summary judgment in favor of the movie studios, finding that CleanFlicks infringes copyright. This is not a terribly surprising result; CleanFlicks’ business involves selling edited DVD-Rs of Hollywood movies, buying and warehousing one authorized DVD of the movie for each edited copy it sells.
Trouble is — according to Judge Matsch — that’s infringement. While the First Sale Doctrine protects resellers from copyright liability, CleanFlicks is doing more than reselling. They’re making unauthorized copies. Maybe otherwise-infringing copies should be legal if one authorized copy is warehoused or destroyed for each unauthorized copy made, but that’s not the current state of the law. (If it were, there would be pretty nasty proof problems involved in keeping copiers from playing with their numbers.)
Judge Matsch also marched through the fair use factors, properly recognizing that they represent only a part of the Fair Use Doctrine. His transformativity analysis was rather unsatisfying; it seems that, in Judge Matsch’s view, only additions of content, not deletions, can be transformative. I agree that these particular deletions were not transformative, but the opinion’s language is overly broad.
filed submitted an amicus brief seeking to rebut the studios’ argument that “the intermediate hard drive copies allegedly [used] to create [CleanFlicks'] final products violate a copyright holder’s exclusive right of reproduction[.]” The brief was successful; the court focused on the DVD-R copies CleanFlicks made, ignoring the intermediate copying in its infringement analysis. [Derek points out in the comments that the MPAA conceded the intermediate copying issue when the EFF moved to file its amicus brief, so the motion was denied as moot. Same outcome, different back-story.]
It’s notable that the injunction is based entirely on the infringement of the studios’ section 106(1) right of reproduction and the section 106(3) right of distribution; the court denied the studios’ summary judgment motion on their section 106(2) claim that CleanFlicks had created infringing derivative works. Sadly, this holding isn’t discussed much.
CleanFlicks has argued that an injunction like the one granted here will put it out of business. It remains to be seen whether they will be around to appeal.
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