More on the CleanFlicks Decision

Joe Gratz has tracked down a copy of the Clean Flicks decision. And he has some excellent analysis of the case here:

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 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.

Finally, I meant to mention the Family Home Movie Act, which explicitly legalized devices like ClearPlay, which edit out objectionable content from DVDs on the fly. It seems to me that ClearPlay would have been on much firmer ground than Clean Flicks even without this explicit exemption (since ClearPlay never makes any unauthorized copies) but in any event, parents wanting to shield their children from naughty words and images still have ClearPlay as an option. The FHMA did not mention DVD editing services like CleanFlicks.

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