D. Colo.: CleanFlicks Infringes Movie Copyrights
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.
The EFF 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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[...] Joe Gratz writes, [...]
Pingback by Freedom to Tinker » Blog Archive » CleanFlicks Ruled an Infringer — July 10, 2006 @ 7:35 am
[...] CleanFlicks and droit d’auteur Joe Grantz, on his blog (via Freedom to Tinker, has posted an interesting overview of the recent CleanFlicks decision. CleanFlicks, along with others, was producing less raunchy versions of popular movies that were then distributed on DVDs to home consumers. CleanFlicks purchased a legitimate DVD copy for every edited DVD they sent out in an effort to stay legit. Congress recently provided statutory protection to companies that manufactured machines that could do this just-in-time when provided with a skip list, but did not protect companies like CleanFlicks, something the court found signficant. [...]
Pingback by Rant, less » Blog Archive » CleanFlicks and droit d’auteur — July 10, 2006 @ 9:25 am
FWIW: MPAA conceded the intermediate copying issue.
http://www.eff.org/deeplinks/archives/004127.php
Comment by Derek Slater — July 10, 2006 @ 11:13 am
“Clean Flicks”, copyright infringement, and DMCA…
Bowlderization not OK, but wary on DMCA.
…
Trackback by Infothought — July 10, 2006 @ 12:06 pm
Thank you so much for the links to the actual ruling and briefs. I spent the last hour searching for those documents after hearing about this on Boing Boing, finally finding your site through Freedom to Tinker.
Comment by Brent Tubbs — July 10, 2006 @ 11:27 pm
[...] CleanFlicks and droit d’auteur July 10, 2006 on 9:25 am | In Friends of ILISA | Joe Grantz, on his blog (via Freedom to Tinker, has posted an interesting overview of the recent CleanFlicks decision. CleanFlicks, along with others, was producing less raunchy versions of popular movies that were then distributed on DVDs to home consumers. CleanFlicks purchased a legitimate DVD copy for every edited DVD they sent out in an effort to stay legit. Congress recently provided statutory protection to companies that manufactured machines that could do this just-in-time when provided with a skip list, but did not protect companies like CleanFlicks, something the court found significant. I thought the ruling was interesting, if only because it seems to represent the artist’s moral rights approach to copyright law, rather than the traditional U.S. utilitarian view. Moral rights, at least in civil law systems, can apparently a lot further than U.S. style copyright law. In this case, the similarity lies in an artist’s right to protect the integrity of his or her works. I’m not sure how the willingness of the directors to allow TV edits of their movies would impact this type of analysis, but that’s certainly an interesting question. The bigger issue may be in fair use analysis. Fair use makes sense, I think, when we think about socially valuable or important uses that copyright law would, hopefully unintentionally, suppress. I guess that could be considered a type of market failure correction in copyright law, when transaction costs or unreasonable actors need to be corrected. In the case of moral rights, however, the analysis is more rawly normative that socially utilitarian. If you truly believe that an artist has an inalienable moral right to preserve the integrity of his or her works, that may be very difficult to reconcile with socially valuable uses. Any thoughts on scholars who’ve looked into this subject? [...]
Pingback by ILISA » CleanFlicks and droit d’auteur — July 25, 2006 @ 8:48 pm