Here’s another interesting wrinkle in the CleanFlicks decision:
CleanFlicks first obtains an original copy of the movie from its customer or by its own purchase from an authorized retailer. It then makes a digital copy of the entire movie onto the hard drive of a computer, overcoming such technology as a digital content scrambling protection system in the acquired DVD, that is designed to prevent copying. After using software to make the edits, the company downloads from the computer an edited master copy which is then used to create a new recordable DVD-R to be sold to the public, directly or indirectly through a retailer. Thus, the content of the authorized DVD has been changed and the encryption removed. The DVD-R bears the CleanFlicks trademark. CleanFlicks makes direct sales and rentals to consumers online through its web-site requiring the purchaser to buy both the authorized and edited copies. CleanFlicks purchases an authorized copy of each edited copy it rents. CleanFlicks stops selling to any retailer that makes unauthorized copies of an edited movie.
This is an unambiguous violation of the DMCA’s anti-circumvention rules. Yet interestingly, the judge didn’t even mention the issue. I have to assume that means Hollywood didn’t make a DMCA argument in its lawsuit. I wonder why not? Perhaps they were confident they’d win on the other grounds, and didn’t want to inflame social conservatives against the DMCA?
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