THEY'RE BAAACK!

BY MICHAEL DOSSIER / April 9, 2007
The DVD Dossier

CleanFlicks, the Utah-based purveyor of censored movies, is apparently back in business.

The Associated Press reports (via Forbes) that they've now seized upon a loophole in copyright law that they believe allows them to edit films for "educational purposes." Judging by a recent visit to their website, it certainly looks like they've resumed their online business.

A court ruled last year that the sanitizing of movies on DVD or VHS tape - which is what CleanFlicks had done - violated federal copyright laws. At the time, CleanFlicks - and a few other firms with similar business models - were ordered to cease and desist and turn over their existing inventory to the movie studios who had brought suit against them.

But now, they're back... and they want to be your "family-friendly DVD rental resource," providing "movies you can trust" (with a library of over 1,000 titles, including those scandalous - but educational - favorites "All About Eve," "Brigadoon," An American In Paris" and "Damn Yankees" plus those very naughty TV shows "Bewitched," "The Jetsons," "Gomer Pyle" and "Saved By The Bell").

I trust the Directors' Guild of America and the movie studios who originally brought the suit will be doing so again, if only for "educational purposes."

LEGAL LOOPHOLE BRINGS BACK EDITED MOVIES

BY BARBARA DAVIS / April 9, 2007
Brigham Young University's Daily Universe

Utah County said goodbye to edited-movie vendors last summer, but local movie businesses have brought edited movies back by finding a creative way to justify their actions. Flix Club and Cougar Video are renting and selling edited movies, an action outlawed last July in the U.S. District Court for the District of Colorado. The judge ruled that movie-editing businesses and vendors create injury to creative expression and should shut their doors and call off operations.

So how are these stores getting around this? The ruling that forced movie-editing companies out of business has a legal loophole. Daniel Thompson, owner of Flix Club, 908 S. State, Orem, said movie-editing stores are continuing to operate based on two criteria.

He said under the fair-use premise, editing is permitted if it is for an educational purpose. The second is that these businesses are not actually named in the lawsuit so they are not banned.

Flix Club edits videos such as "Glory" and "The Patriot" for local schools, said Thompson, former owner of the retail locations for Clean Flicks. But he also edits movies that may not be easily identified as educational and some wonder what is educational about "The Matrix."

Some businesses learned of this loophole and began operation a few months after the ruling. Scott J. Mikulecky, member of the Litigation Department of Sherman & Howard's Colorado Springs office and attorney for CleanFlicks of Colorado in the lawsuit that provoked the ruling, said he does not know the details of operations but is skeptical. "There is a valid educational exception," Mikulecky said. "The question is if [certain movies] qualify. I don't see how [some] movies can be made educational."

According to the Motion Picture Association of America Web site, the association is committed to promoting copyright protection and other intellectual property protection. This is so those who create movies, software, music or other works can make a living by creating products that enrich lives. It implements programs to help secure the original product and reduce editing. The Daily Universe attempted to contact a spokesman for the Motion Picture Association but did not have phone calls returned.

Dan Pia, UVSC student from Pasadena, Calif., said he believes movies are a creative effort of many people to produce art, and he is not buying the educational claim. "I think it is ridiculous to allow them [editing companies] to do this," Pia said. He said editing movies is both dishonest and hypocritical. "They are taking advantage of the legal loophole," he said. "And people are hypocritical because they are watching movies they wouldn't choose to watch without the edited parts."

But many families in the area want edited movies and support movie-editing companies. There is a need for edited movies in this area where family values are important, Thompson said. "They [studios] may not realize there is a market here for edited movies," he said. "It is not R-rated movies necessarily that need to be edited; it is about family values in general. The support people here have for edited movies is amazing."

Thompson added that if someone owns a copy of a movie, then the individual should be able to do anything to it. "What if you took 'God's Army' and added profanity to it?" he said. "My response is, do with it what you want. The principle of editing goes both ways."

GOING, GOING, GONE

BY MICHAEL DOSSIER / July 28, 2006
The DVD Dossier

CleanFlicks, which lost a lawsuit brought by Hollywood directors and movie studios a few weeks ago - but vowed to continue to fight for its right to excise sex, violence and profanity from movies - is closing up shop.

As of today, those who go to the company's homepage are redirected to a "liquidation sale" page with an animated "Going Out of Business" banner informing visitors that this is your "last chance to buy your favorite edited movies" and to "hurry while supplies last."
The sale - restricted to former customers only - may come as a surprise to Judge Richard P. Matsch, who ordered the firm to hand over all inventory to the movie studios.

FEDERAL JUDGE BLEEPS DVD EDITING

BY DEBORAH NATHAN, ESQ. / July 13, 2006
Find Law: Legal News & Commentary

A federal judge has stopped the distribution of major motion picture DVDs that were edited by several companies to remove objectionable content, ruling that the sanitized versions infringe the copyrights held by several major movie studios and directors.

Judge Richard P. Matsch of the District of Colorado granted the motion for partial summary judgment made by such cinema luminaries as Steven Soderbergh, Robert Redford, Steven Spielberg, Martin Scorsese and Sydney Pollack.

The directors and several movie studios were defendants in a 2002 lawsuit filed by Clean Flicks of Colorado, Family Flix USA, CleanFilms and Play It Clean Video.

The movie studios included Metro-Goldwyn-Mayer Studios Inc., Time Warner Entertainment Co., Disney Enterprises Inc. and Dreamworks LLC.

The plaintiffs sought a declaratory judgment that they were not infringing any party's copyrights by making edited versions of motion pictures.

The defendants counterclaimed, alleging copyright infringement, and then moved for partial summary judgment.

In response to the counterclaims, the plaintiffs argued that their actions did not constitute copyright infringement because they were making fair use of the copyrighted works.

The fair-use doctrine is an affirmative defense to allegations of copyright infringement. The doctrine allows use of copyrighted works for criticism, comment, news reporting, teaching, scholarship and research.

Courts balance four factors to determine if a particular use is fair: the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion of the work used; and the effect of the use upon the potential market for the work.

As explained in Judge Matsch's opinion, Clean Flicks and Family Flix operated similarly by purchasing an original DVD of a movie. After downloading the DVD onto a computer, they edited the film by deleting sex, nudity, profanity and gory violence.

The companies either sold the edited movies directly or through distributors CleanFilms and Play It Clean.

Judge Matsch weighed the four factors and concluded that the scales tipped in favor of the directors and studios.

The plaintiffs conceded that they were using the DVDs for commercial gain. Second, Judge Matsch said the edits to the movies, although constituting a small percentage of the original films, did nothing to transform the creative expression of the movies.

He explained further that the non-transformative nature of the edited copies, coupled with the creative expressions of the movies, weigh heavily in favor of the studios and directors under the second factor, the nature of the copyrighted work.

The judge also rejected the plaintiffs' claim that their use of the movies had no adverse effect on the value of the copyrighted work to the studios, noting that the argument ignored the intrinsic value of the right to control the content of the copyrighted work.

The plaintiffs also raised a public policy argument, claiming they were criticizing the objectionable content in many movies and were providing more socially acceptable alternatives.

Judge Matsch said that argument was addressed to the wrong branch of government, because courts are not free to determine the social value of copyrighted works.

He observed that during the pendency of the case, Congress enacted the Family Movie Act of 2005, which allowed private households to edit movies if no fixed copy of the movie is created.

The judge said Congress had the opportunity to make the policy choice now urged by the plaintiffs and rejected it.

Agreeing that the plaintiffs were infringing the defendants' copyrights, Judge Matsch enjoined them from continuing to produce and distribute edited versions of the films.

The plaintiffs' attorney, David N. Schacter of Sherman & Howard in Denver, acknowledged that Judge Matsch's opinion was well-reasoned, but said, "I'm disappointed that the court took the decision-making role away from the jury."