Digital First Sale Doctrine

by on July 9, 2006 · 22 comments

Matt Yglesias notes last week’s ruling that services like Clean Flicks, which buy Hollywood movies, take out the naughty parts, and resell them to parents, are infringing copyright. On a policy level, I agree with his general take:

Overwhelmingly, the impact of a service like CleanFlix is to make versions of works available to people who otherwise wouldn’t be consuming them at all. Even in a CleanFlix world, authors of “unclean” content will still enjoy extremely close to 100 percent of the pre-CleanFlix market. There’s no reason at all to think that the existence of this sort of service will seriously reduce future production of new things.

Artists and so forth who think their interests are being served by pushing a strong-IP doctrine on this front are essentially dupes. The people who control the existing distribution channels for film have a very serious interest in using the new-style super-strong IP rules to insulate themselves from the winds of technological change. So, in essence, they’re pushing forward on all fronts, stomping on various totally non-harmful cases of putative infringement and attempting to radically curtail people’s ability to do what they want to do with content they’ve purchased.

The defendants’ activities clearly had little or no negative financial impact on copyright holders. Arguably, in fact, services like Clean Flicks increase sales by widening the set of movies socially conservative parents are willing to purchase.

However, on the legal merits, this is hardly an easy case. I haven’t been able to find the actual decision so consider this wild speculation on my part, but it seems to me that a literal-minded interpretation of the four fair use factors very well might find this is not a fair use–the “effect of the use upon the potential market” is the only factor that clearly weighs in favor of a finding of fair use.


Conceptually, the stronger rationale for finding that such editing is legal is the first sale doctrine, which holds that once you’ve purchased a copy of a work, you have a right to do as you please with that copy, as long as you don’t make additional copies. No one would claim copyright infringement if I went into business buying books, blacking out naughty words, and reselling the edited books. Clean Flicks has already paid Hollywood full price for each copy of the movies it re-sells–what business is it of Hollywood’s if they alter the copy before selling it?

The problem is that the first sale doctrine only applies to the physical original copy. But with digital technologies, accessing and modifying content often requires copying it. You can’t modify a DVD–all you can do is burn a modified copy. That means that even if Clean Flicks’s business is analogous to actions that would have been perfectly legal with 20th Century technologies, that doesn’t mean it’s legal. What you’re buying when you buy a DVD is just a physical piece of plastic, not the right to own one copy of the movie stored in the disk. Such over-literalism, it seems to me, is a mistake that threatens to cause a lot of mischief as more and more of our culture is distributed in media where copying is an inseparable part of accessing.

For example, an over-literal interpretation of the no-copying rule was responsible for MP3.com’s loss in court. Even though MP3.com was simply helping users to consume content they had legally purchased in more convenient ways, the judge focused on the fact that MP3.com was copying and “retransmitting” the content without authorization from the copyright holder. That logic eviscerates the first sale principle in digital media, because all manipulations of digital content involve copying and transmitting content.

All of which is to say that Clean Flicks ought to be legal, but it’s far from obvious that it actually is. It would be a good thing if Congress clarified the first sale doctrine to make it clear that it gives consumers the right to consume and modify the content they purchase in the format of their choice, not simply the right to do as they please with a physical piece of plastic.

  • http://www.joegratz.net Joe Gratz

    I grabbed the opinion from PACER and have uploaded it to my blog. My post is available here.

  • http://www.joegratz.net Joe Gratz

    I grabbed the opinion from PACER and have uploaded it to my blog. My post is available here.

  • adamb

    People might not claim copyright infringement if you resold an edited book, but it would no longer be the book you originally purchased.

    These companies present their movies as a product of their original directors and cast, but they aren’t that at all; they’re a different movie altogether.

    These companies are just profiting from work that’s already been done. If they want movies that are free of things they find objectionable, they should make them themselves, instead of perverting the work of others.

  • adamb

    People might not claim copyright infringement if you resold an edited book, but it would no longer be the book you originally purchased.

    These companies present their movies as a product of their original directors and cast, but they aren’t that at all; they’re a different movie altogether.

    These companies are just profiting from work that’s already been done. If they want movies that are free of things they find objectionable, they should make them themselves, instead of perverting the work of others.

  • http://dr-flippy.livejournal.com/ Lewis Baumstark

    These companies are just profiting from work that’s already been done.

    This alone is no reason to rule against them. Especially since they also add value to that work through their own work (as opposed to simply passing the original off as their own).

  • http://dr-flippy.livejournal.com/ Lewis Baumstark

    These companies are just profiting from work that’s already been done.

    This alone is no reason to rule against them. Especially since they also add value to that work through their own work (as opposed to simply passing the original off as their own).

  • Sarcastro

    No, Clean Flicks should not be legal. No more than a service that took your writing, “cleaned” it of “objectionable” material and then resold it, still attributed to you although the meaning has changed to something you did not intend, for a profit.

    The very idea is absurd. This isn’t about fair use or first sale, this is about changing the meaning of an author’s work without their permission and then representing it as still being the original author’s work. It most certainly DOES affect the market for a work and NOT neccesarilly for the better.

    Take Terry Gilliam’s Brazil for instance. There was a huge dustup when the American distributor changed the ending of the movie from a terrifying and sinister finale to a lame happy forever-after. Gilliam is not about happy endings or trite love stories and it was a disservice to his work to misapropriate it that way. Both the consumer – who might go looking for 12 Monkeys expecting a nice, clean, fluffy ending – and the creator – whose intended audience may well have been turned off by the mangled version – suffer due to such monkeying with works of art.

  • http://www.techliberation.com/ Tim Lee

    Except that in the case of Clean Flicks, it’s clear to everyone involved that they’re selling a sanitized version of the work, not the original. Consumers seek Clean Flicks out and pay extra money for a sanitized version of authors’ works.

    Now, I might agree with you that it’s a “disservice” to the original director’s artistic vision to allow such editing. But it’s not clear to me why that’s relevant. The purpose of copyright law has never been to protect the “artistic integrity” of creative works–it’s to encourage and reward their creation. Artists do not and should not have an unlimited right to control how copies of their works are used by their paying customers. Once I buy a book, CD, or movie, I should be able to do as I please with it as long as I don’t distribute copies to others.

  • Sarcastro

    No, Clean Flicks should not be legal. No more than a service that took your writing, “cleaned” it of “objectionable” material and then resold it, still attributed to you although the meaning has changed to something you did not intend, for a profit.

    The very idea is absurd. This isn’t about fair use or first sale, this is about changing the meaning of an author’s work without their permission and then representing it as still being the original author’s work. It most certainly DOES affect the market for a work and NOT neccesarilly for the better.

    Take Terry Gilliam’s Brazil for instance. There was a huge dustup when the American distributor changed the ending of the movie from a terrifying and sinister finale to a lame happy forever-after. Gilliam is not about happy endings or trite love stories and it was a disservice to his work to misapropriate it that way. Both the consumer – who might go looking for 12 Monkeys expecting a nice, clean, fluffy ending – and the creator – whose intended audience may well have been turned off by the mangled version – suffer due to such monkeying with works of art.

  • http://www.techliberation.com/ Tim Lee

    Except that in the case of Clean Flicks, it’s clear to everyone involved that they’re selling a sanitized version of the work, not the original. Consumers seek Clean Flicks out and pay extra money for a sanitized version of authors’ works.

    Now, I might agree with you that it’s a “disservice” to the original director’s artistic vision to allow such editing. But it’s not clear to me why that’s relevant. The purpose of copyright law has never been to protect the “artistic integrity” of creative works–it’s to encourage and reward their creation. Artists do not and should not have an unlimited right to control how copies of their works are used by their paying customers. Once I buy a book, CD, or movie, I should be able to do as I please with it as long as I don’t distribute copies to others.

  • http://users.bestweb.net/~robgood Robert Goodman

    I agree with Tim Lee. There’s a broader IP principle that should be invoked, but perhaps is superseded by some particular of copyright — the principle of exhaustion. You sell a copy, who cares if you keep a “backup” (or even transiently had a potential backup) that’s never used or rented out at the same time as the copy that’s actually for sale or rent? As long as it’s 1:1, there’s no legitimate interest being harmed.

    The consumer of the edited version doesn’t actually have a legit interest in the copyright question — that’s actually handled by trademark — but even if the consumer did, in this case it’s clear the consumers knew they were getting bowdlerized versions, and indeed patronized Clean Flicks for that very reason. No way that should hurt the reputations of the makers of the originals.

  • http://users.bestweb.net/~robgood Robert Goodman

    I agree with Tim Lee. There’s a broader IP principle that should be invoked, but perhaps is superseded by some particular of copyright — the principle of exhaustion. You sell a copy, who cares if you keep a “backup” (or even transiently had a potential backup) that’s never used or rented out at the same time as the copy that’s actually for sale or rent? As long as it’s 1:1, there’s no legitimate interest being harmed.

    The consumer of the edited version doesn’t actually have a legit interest in the copyright question — that’s actually handled by trademark — but even if the consumer did, in this case it’s clear the consumers knew they were getting bowdlerized versions, and indeed patronized Clean Flicks for that very reason. No way that should hurt the reputations of the makers of the originals.

  • bud

    “The problem is that the first sale doctrine only applies to the physical original copy. But with digital technologies, accessing and modifying content often requires copying it.”

    I’m no expert on how DVDs do error correction, but it seems to me that if all you want to do is delete certain material, it should be possible to use a laser to burn over the pits. Then you would be sending the consumer the “original” copy.
    There may be some frozen screens, etc, but it *should* work.

    This is idle speculation on my part, I *like* the dirty bits!

    email is human readable – aloud

  • bud

    “The problem is that the first sale doctrine only applies to the physical original copy. But with digital technologies, accessing and modifying content often requires copying it.”

    I’m no expert on how DVDs do error correction, but it seems to me that if all you want to do is delete certain material, it should be possible to use a laser to burn over the pits. Then you would be sending the consumer the “original” copy.
    There may be some frozen screens, etc, but it *should* work.

    This is idle speculation on my part, I *like* the dirty bits!

    email is human readable – aloud

  • Bewildered

    I’m confused. How come when movies with foul language , nudity, and raunchy sex scenes come to “regular” TV edited, it’s not considered harmful to the so-called artistic integrity of the movie? Clean Flix is doing the same thing–they’re taking something otherwise unwatchable in my house and making the “TV version”. Hollywood makes money from Clean Flix’s way and I don’t have to skip commercials. Actually the “TV versions” seem to do more damage when they cut out many pertinent scenes that affect the storyline to make room for more and more commercials. Who’s defending artistic integrity then?

  • Bewildered

    I’m confused. How come when movies with foul language , nudity, and raunchy sex scenes come to “regular” TV edited, it’s not considered harmful to the so-called artistic integrity of the movie? Clean Flix is doing the same thing–they’re taking something otherwise unwatchable in my house and making the “TV version”. Hollywood makes money from Clean Flix’s way and I don’t have to skip commercials. Actually the “TV versions” seem to do more damage when they cut out many pertinent scenes that affect the storyline to make room for more and more commercials. Who’s defending artistic integrity then?

  • Batman

    Okay, maybe I am confused, but this rulling seems to me to be a slap in the face to our society. I guess as Americans we like to see naked people and sex, hear language that is terrible, and see people’s gutts hanging out of there bodies. Is all that stuff really necissary to enjoy a good movie. I submit to you that no it isn’t. I for one enjoy being able to sit through a movie without worrying about objectional material poping up all the time. I think if Hollywood was smart they would realize that there is a market for clean material. Cleanflicks would not exist if there were not people willing to watch there work. If they are worried about a third party consumer making the edit why not do it themselves? There are many movies that I have rented from Cleanflicks and greatly enjoyed them. After watching Saving Private Ryan did I miss out on some of the graphic warfare? Yes, but did I walk away having any less appreciation to the people who gave there lives to preserve freedom? No! In Titanic was my experience any less from not seeing an actors breasts flash across the screen multiple time? No! I really enjoyed the clean version of the movie.

    I know that I am not alone, many good stories have been told with little sections of material that most people would agree probably doesn’t need to be in the movie to make the show work. Hollywood please wake up and continue to tell great stories but help out those of us who don’t wish to polute our minds with the added filth.

  • Batman

    Okay, maybe I am confused, but this rulling seems to me to be a slap in the face to our society. I guess as Americans we like to see naked people and sex, hear language that is terrible, and see people’s gutts hanging out of there bodies. Is all that stuff really necissary to enjoy a good movie. I submit to you that no it isn’t. I for one enjoy being able to sit through a movie without worrying about objectional material poping up all the time. I think if Hollywood was smart they would realize that there is a market for clean material. Cleanflicks would not exist if there were not people willing to watch there work. If they are worried about a third party consumer making the edit why not do it themselves? There are many movies that I have rented from Cleanflicks and greatly enjoyed them. After watching Saving Private Ryan did I miss out on some of the graphic warfare? Yes, but did I walk away having any less appreciation to the people who gave there lives to preserve freedom? No! In Titanic was my experience any less from not seeing an actors breasts flash across the screen multiple time? No! I really enjoyed the clean version of the movie.

    I know that I am not alone, many good stories have been told with little sections of material that most people would agree probably doesn’t need to be in the movie to make the show work. Hollywood please wake up and continue to tell great stories but help out those of us who don’t wish to polute our minds with the added filth.

  • Artsy-Craftsy

    Now I have to get my money back from CleanFicks. This whole issue is lacking in cogent thinking. Too bad we have judges like this one. The whole idea of licensing for the media industry is/was for them to get their money. Period. Get their money. From me.

    Content, shmontent. How self serving. The blatant truth is Everything is IP, not just an artist attempting to present something. I find it odd that in the presentation they really want money. If they don’t want it changed, don’t sell it. The licensing concept was a clever, clever concept that idiots with law degrees used to make their money. It implies a principle that does not exist which, if it did, should apply everywhere.

    Applied everywhere, because it is a principle, then when I buy a plot of land I should not be able to build a house, or dig a hole. That would disturb what I bought. Or buying a car, the dealer should be able to insist I buy add on items from him, only. Removing red eye from photos should not be allowed. The concept was applied to marriage first in the same media, entertainment, and now to the whole country. God forbid my wife gets older, not the same woman I married – I’ll sue her or ask the judge to invalidate the relationship and call it ‘no fault divorce’.

    Applied universally, no one could send food back at a restuarant nor sue for food poisening, since the diner ate what the chef designed and arranged on the plate. That it was purchased ostensibly for consumption has no bearing. In fact a really Oscar winning restuarant could stop diners eating out of proper order for maximum gustatory results. Appetizer first and must be included, then salad with dressing on the side, not mixed in.

    I want to license my right view and do everything and send the bill to Hollywood. Perhaps I can get the judge to agree. Should not be hard with his reasoning ability. My walk is distinctive and you cannot watch without paying me. Have cash in your hand as I come by.

  • Artsy-Craftsy

    Now I have to get my money back from CleanFicks. This whole issue is lacking in cogent thinking. Too bad we have judges like this one. The whole idea of licensing for the media industry is/was for them to get their money. Period. Get their money. From me.

    Content, shmontent. How self serving. The blatant truth is Everything is IP, not just an artist attempting to present something. I find it odd that in the presentation they really want money. If they don’t want it changed, don’t sell it. The licensing concept was a clever, clever concept that idiots with law degrees used to make their money. It implies a principle that does not exist which, if it did, should apply everywhere.

    Applied everywhere, because it is a principle, then when I buy a plot of land I should not be able to build a house, or dig a hole. That would disturb what I bought. Or buying a car, the dealer should be able to insist I buy add on items from him, only. Removing red eye from photos should not be allowed. The concept was applied to marriage first in the same media, entertainment, and now to the whole country. God forbid my wife gets older, not the same woman I married – I’ll sue her or ask the judge to invalidate the relationship and call it ‘no fault divorce’.

    Applied universally, no one could send food back at a restuarant nor sue for food poisening, since the diner ate what the chef designed and arranged on the plate. That it was purchased ostensibly for consumption has no bearing. In fact a really Oscar winning restuarant could stop diners eating out of proper order for maximum gustatory results. Appetizer first and must be included, then salad with dressing on the side, not mixed in.

    I want to license my right view and do everything and send the bill to Hollywood. Perhaps I can get the judge to agree. Should not be hard with his reasoning ability. My walk is distinctive and you cannot watch without paying me. Have cash in your hand as I come by.

  • Jannette

    I am extreamly disturbed by some of the comments. I love these Hollywood movies but I can’t stand the content in them. There are scenes and language that are put in that have no point to even be there. I can’t watch movies with my children, even the “kids” PG movies. The language and suggestions that Hollywood puts in them are rediculous. I don’t even like to watch them, and I don’t. I haven’t been to a movie at the theater in years. I can’t go. It’s terrible. It’s offensive to me and should be to everyone else there sitting the theater. Where are peoples morals. All Clean Flicks was doing was making these great Hollywood movies available to the more sensitive and moral people in the world. If anyting, Clean Flicks was spreading Hollywoods movies to more people, I watched more movies that looked great from Clean Flicks than I ever had in my lifetime. I am very upset that now my over 150 “Hollywood” movies I would have liked to of watched from Clean Flicks is no longer available to see. I used to enjoy watching movies. Now days, it’s just plane sick and wrong what “Hollywood” is putting in them. It’s a shame. Clean Flicks and any other editing company have my 110% support. They are the only ones out there getting rid of the filth in movies. Anyone who feels different, your filth just like what’s added to these movies.

  • Jannette

    I am extreamly disturbed by some of the comments. I love these Hollywood movies but I can’t stand the content in them. There are scenes and language that are put in that have no point to even be there. I can’t watch movies with my children, even the “kids” PG movies. The language and suggestions that Hollywood puts in them are rediculous. I don’t even like to watch them, and I don’t. I haven’t been to a movie at the theater in years. I can’t go. It’s terrible. It’s offensive to me and should be to everyone else there sitting the theater. Where are peoples morals. All Clean Flicks was doing was making these great Hollywood movies available to the more sensitive and moral people in the world. If anyting, Clean Flicks was spreading Hollywoods movies to more people, I watched more movies that looked great from Clean Flicks than I ever had in my lifetime. I am very upset that now my over 150 “Hollywood” movies I would have liked to of watched from Clean Flicks is no longer available to see. I used to enjoy watching movies. Now days, it’s just plane sick and wrong what “Hollywood” is putting in them. It’s a shame. Clean Flicks and any other editing company have my 110% support. They are the only ones out there getting rid of the filth in movies. Anyone who feels different, your filth just like what’s added to these movies.

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