Not quite; you're missing a fine point on the website. cleanflicks.com is selling the original cuts *along with* a DVD-R containing an edited version of the movie. Very, very different than what you said. While the DGA is still (correctly) complaining that this is taking power away from parents and giving it to unknown third parties, they're not complaining about the distribution (in this case).

from their FAQ: "...you can add the quantity you would like to purchase, and then click the buy button. We will then mail you the master and a brand new edited DVD."

There was no cover story. Blockbuster would have carried the film with that scene unblurred. It wasn't explicit. The MPAA gave it an R, played theatrically without a problem. It was just a quick shot. Nothing to freak out BB. Many R rated films they carry are far worse.

See, this is the way that Urban Legend about BB editing got spread. People don't want to believe the real story.

I didn't say that BlockBuster MADE them edit Mulholland Drive at all. According to the Variety story (I wish I still had it) the video release was right on the heels of the Requiem for a Dream issue and the producers of Mulholland Drive just assumed that BB would refuse to carry it if they submitted it, so they made the change upfront and never released the true theatrical cut to save money on two separate releases like Requiem.

I rented the movie Spun from blockbuster (on dvd) awhile back. The movie had beeps masking out certain toilet words and a blur effect over the naked girls croch. Having never seen the movie before I don't know if that was how the movie was made or if it was edited. Anyone know?

That really doesn't make any sense, as MD with unblurred crotch was rated-R.

Requiem is a different case as the movie was un-rated.

While rated versions of movies primarily exist so stores like Wal Mart and Blockbuster will carry them, these stores do not edit their own discs. And I only mention Wal Mart because they do carry edited CDs, but do they do that themselves or does the studios who put out the CDs offer those cut up versions of CDs as an alternative to them not carrying the music at all?

And has anybody else noticed that lately when two versions of a DVD are released, the chances are BBV will carry the UNRATED DVD for rental? Just about every time.

Requiem was released theatrically in the US at NC-17, but that's not the issue. I don't know if BlockBuster has or ever had a corporate policy against NC-17 films. I think it was just a decision made about a certain scene that had content they didn't like.

These days, I think BB is really changing their policies because there was quite a bit of backlash over the RFAD issue.

Look, I don't work for BB or the producers of these films. All I know is that I hate BlockBuster and I will NEVER use their services.

Related question:

Seems like half the Netflix discs I get these days aren't the commercial version, but specially manufactured rental-only discs. Why are they doing this? Are the other major rental places like Blockbuster this way now too? What financial good can it do them? Is there less content--extras, etc?

Just a theory, but they may be starting to sell versions that are like OEM software. Versions without packaging (since NetFlix doesn't use it anyway) that are slightly cheaper for them to buy.

I would imagine if they were sending out versions that had less or no special features or reduced quality, we would have heard about it already.

Sorry, I thought that was obvious, since you can't physically edit a read-only DVD. If your whole point was that right of first sale did not apply to reselling the original DVD and/or license to the material on the DVD then I apologize for misleading you with my original statements.

Either way, the DGA and the rest are still suing cleanflicks and the other 8 or so companies providing similar censorship services in various forms. The original suits are still pending and with no other evidence than hollywood's pretty clear desire that right of first sale would just go away, I believe that hollywood is the side stalling out the case. It is more useful for them to have it pending than decided because as long as it is pending they can point to it and jump up and down about how cleanflicks, et al are doing this only for the money (an argument that can't help but make me smirk at the irony).

As for the suppossed ruling in utah in favor of the DGA on some other case regarding vhs tapes of the titanic, well I'm pretty confident it didn't happen because the DGA would almost certainly have something about it in the archives on their website and they don't. While they do have info on the current cleanflicks suit,

Yes they are. Both Blockbuster Video and Hollywood Video get most titles as bare discs and a box full of cover inserts. I think blockbuster assembles them into their own funky lockboxes at their distribution points while HV does it in store (I just saw them doing it for "Bush's Brain" the other day).

No, it wasn't. The distributor rejected the NC-17 rating and released the film unrated to theatres.

DJ

Laymen probably aren't the people I'd turn to for legal advice, but maybe that's just me.

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The right of first sale trumps them 100% here. Just as I can buy a book, tear out half the pages and sell that as a book with half the pages missing, so can anyone buy a movie and cut out whatever they want and then resell it as a modified version.

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First Sale trumps the studios' 17 USC § 106(2) exclusive right to preprare derivative works? First Sale trumps the directors' 15 USC § 1125(a)(1)(A) right against having their names used without their permission in a way that implies origin, sponsorship, or approval of versions of films they weren't involved with?

Wow.

Let's see what the so-called First Sale Doctrine really says in 17 USC §109(a):

"Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

To make the above clear, § 106(3) is the exclusive distribution right. Thus, the First Sale Doctrine provides an exception to the distribution right by allowing lawful purchasers to re-sell their purchases. This is all that it provides. It grants no other exceptions to any other laws. It trumps no other rights. First Sale does not trump the exclusive right to prepare derivative works, and it doesn't even remotely involve, no less trump, the right against confusion of origin in commerce. You're going to need just a tad more than invented colloquial guesses about tearing pages out of a book to prove otherwise.

This should even be obvious to a layman. It's probably much less obvious to someone with an axe to grind who would rather believe in what they want to be true rather than in what is true.

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I went looking for the results of those lawsuits, could not find them in 2 minutes of googling. But what I did find is that the suits were filed in 2002 and cleanflicks.com is still in business doing exactly the same thing and so are a whole bunch of other outfits.

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So? I regularly work on litigation that is much older than this suit. This means nothing regarding the merits of the suit.

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As usual, it was just Hollywood throwing a hissy fit because they want 100% control and (fortunately) they have not been able to buy enough of congress to achieve that. Yet.

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No needs to "buy" Congress in order to make the studios' and directors' position on the Clean Flicks, et al., practices illegal. It already has been for quite a long time.

DJ

<i>It's probably much less obvious to someone with an axe to grind who would rather believe in what they want to be true rather than in what is true.</i>

You went to law school and you are appealing to "truth?" You know quite well that there is no truth in the court room, the antognistic process assures that. There is only he who tells a better story. ESPECIALLY with copyright law, being one of the most twisted, labyrinthine areas of code on the books.

For example, you have two basic points, here is a better story:

1) Confusion of origin - This argument is completely specious. Cleanflicks makes no attempt to hide the fact that they are editing the original works. Right there at the top of Cleanflicks page it says, <i>"As your premier source for edited DVDs and Videos..."</i> In fact, they are marketing their editing as the value-add that they provide. No one is going to mistakenly purchase a Cleanflicks edited version believing it to be an original work, that's why they go to the cleanflicks website in the first place.

2) Exclusive right to prepare derivative works - The editing that Cleanflicks does really isn't all that different from what you might see in a parody or long excerpts used in a critical review or scholary analysis, all well protected by that nebulous catchall of "fair use." Which could conceivably be stretched to allow Cleanflicks to distribute the results of their butchery completely without the permission of the original publisher.

But, just in case "fair use" won't quite bridge that gap, every edited version comes with a full-blown license for the material in question and that's where right of first sale applies. Cleanflicks bought a license and resold the license, included a repackaging of parts of the original licensed material. Just as it is perfectly legal to resell a book that has had half the pages removed, or every other word redacted because the original license is inherently included, so too is reselling the license for a movie with every other word bleeped out. There is certainly no basis for any claim of economic harm since, at the very least, Cleanflicks's action does not in any way reduce the total number of sales by the copyright holder. Instead it almost certainly increases them because certain people who would never have made the purchase without the edits are now buying a a fully paid for and licensed copy.

<i>So? I regularly work on litigation that is much older than this suit. This means nothing regarding the merits of the suit.</i>

The original statements that I was responding to were, <i>"There were a couple of companies that tried to do this while ago, CleanFlicks and ClearPlay, that got their asses sued to high heaven by all the major studios because it violates trademark and copyright laws. ... So any rumor that you've heard about Blockbuster or Walmart doing this is completely false."</i>

Clearly the second statement does not follow from the first because there has been no ruling and thus no precedent. If Cleanflicks is still doing it, then Walmart or Blockbuster could certainly be doing it too.

<i>No needs to "buy" Congress in order to make the studios' and directors' position on the Clean Flicks, et al., practices illegal. It already has been for quite a long time.</i>

So says, YOU and Hollywood. Not really the best, or even particulary rational, company to be keeping.

FWIW, Wal-Mart does sell edited versions of PC games, although AFAIK, they received these versions directly from the manufacturers. I assume the same would apply to music cds, and videos, if they actually have edited versions of the videos. Of course, that is half the reason you see "Rated" and "Unrated" versions now, with the other half being a marketing ploy.

I can assure you, that wasn't the case at all. REQUIEM was a totally different case, had nothing to do with MULHOLLAND.

If Variety did indeed imply that, they were wrong.

Go back and look at the archives of these forums. Lynch was open about the change and his reasoning. A lot of people on these forums were quite upset by it. But it had nothing to do with BB not carrying it. That scene alone unblurred could have been in a PG-13 film. Very quick shot.

As far as Netflix go, with some of the packaging (especially Warner and Anchor Bay titles) featuring Netflix logos, they have special deals with them to get them. The discs are the same as you will get in stores (although some flippers only have one side), same extras, but the Netflix logo helps the tracking so they aren't stolen and people don't try to sell them.

Hmm, nobody has yet mentioned the dreaded DMCA in this thread. All the copyright discussion is pretty much a waste of time as the DMCA (may it die a speedy death) currently forbids the circumvention of protection schemes. Any copying or altering of DVDs is therefore illegal, although the courts will decide all that eventually. (17 § 1201)

Even in the wild and wooly world of copyright law, there are some obvious truths. The plain language of 17 USC § 109 makes it clear that First Sale applies only to the distribution right, not to the derivative work right or 15 USC § 1125(a). Just because law is a notoriously agnostic field, it doesn't mean that any old argument you might invent can trump the obvious.

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1) Confusion of origin - This argument is completely specious. Cleanflicks makes no attempt to hide the fact that they are editing the original works. Right there at the top of Cleanflicks page it says, <i>"As your premier source for edited DVDs and Videos..."</i> In fact, they are marketing their editing as the value-add that they provide. No one is going to mistakenly purchase a Cleanflicks edited version believing it to be an original work, that's why they go to the cleanflicks website in the first place.

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Knowing that the works are edited is far from sufficient. Do you even know what 15 USC § 1125(a) provides? The directors names are being used to indicate approval of a work which they did not approve. No disclaimer can overcome this, especially one completely broad and devoid of specific content. That the viewer might know that the works are edited provides no solace. The editing processes of Clean Flicks, et al., are such that entire scenes are often removed, making a film's plot incomprehensible. Unless one can simultaneously compare both the original and the edited version, it would be impossible for a viewer watching the edited version to know about the existence of a completely missing scene. In such a case, the use of the director's name implies approval of an incomprehensible film. This violates § 1125(a), general and pointless disclaimer or not.

At least you've given up the horribly fallacious claim that First Sale trumps § 1125(a).

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2) Exclusive right to prepare derivative works - The editing that Cleanflicks does really isn't all that different from what you might see in a parody or long excerpts used in a critical review or scholary analysis, all well protected by that nebulous catchall of "fair use."

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In what universe is re-editing a film simply to make parents more comfortable in showing it to their children remotely the same thing as a critical scholarly analysis? Come on, guy.

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Which could conceivably be stretched to allow Cleanflicks to distribute the results of their butchery completely without the permission of the original publisher.

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It would be conceivable only to those without any concept of the issue. Clean Flicks blatantly and solidly fails at least 3 out the 4 Fair Use factors in 17 USC § 107: purpose of the use (wholly commercial), nature of the underlying work (highly creative), and the amount of the underlying work used (the entire work is subject to re-editing). It also fails the fourth factor, the effect on the potential market, as it inhibits potential sales of possible future authorized edited versions released by the copyright holders. Your argument is only conceivable if one is utterly uninformed.

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But, just in case "fair use" won't quite bridge that gap, every edited version comes with a full-blown license for the material in question and that's where right of first sale applies.

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What full-blown license? First Sale? First, First Sale doesn't function as a license. Second, even if it did, it surely isn't "full-blown" in a way that has any relevance to derivative works. As 17 USC § 109 clearly reads, as I've already quoted for you, it applies only to the distribution right. No other exceptions to any other rights, including the derivative work right, are granted.

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Cleanflicks bought a license

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They did? What license?

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and resold the license,

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They did? What license?

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included a repackaging of parts of the original licensed material. Just as it is perfectly legal to resell a book that has had half the pages removed, or every other word redacted because the original license is inherently included, so too is reselling the license for a movie with every other word bleeped out.

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Again, your invented colloquial guesses aren't even remotely enough to challenge the clear language of the statute. You keep citing to this invented "perfectly legal" situation of editing a book and reselling it, but do you have any statutory or case law support for it? Or are you just guessing at it because you want it to be true?

In reality (read: not your invented desires), re-editing a film is a violation of the derivative work right. As the District Court of the Central Circuit of California held in Batjac v. Goodtimes, 964 F. Supp. 1416 (C.D.Ca. 1997), re-editing a film by panning and scanning it creates a derivative work because it involves creative editing choices. As the court laid out in that case, the re-editor "created the pan and scan version by 'making artistic decisions about the composition of each frame of the 1963 picture, determining which portions should stay and which should be 'chopped off.''" 964 F. Supp. at 1427-8. The Clean Flicks process is largely the same, as they make artistic decisions about each visual frame and line of dialogue in each film they edit, deciding what should stay and what should be cut out, as they attempt to make it conform to their aesthetic standard. Clean Flicks creates derivative works, plainly and simply, and First Sale provides no escape hatch from that. See also Roy Export Co. Establishment etc. v. Columbia Broadcasting System, Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980), where a re-edited compilation of Charlie Chaplin films was held to be a derivative work.

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There is certainly no basis for any claim of economic harm since, at the very least, Cleanflicks's action does not in any way reduce the total number of sales by the copyright holder. Instead it almost certainly increases them because certain people who would never have made the purchase without the edits are now buying a a fully paid for and licensed copy.

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Irrelevant. Economic harm is not a necessary element of a civil copyright infringement claim.

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So says, YOU and Hollywood.

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...and the plain language of statutory law and case law. And what have you got to rebut all of this? Nothing more than an overactive imagination. If you're going to attempt to engage in a serious discussion on these topics, you've got to, at the very least, have the first clue on what you're talking about. You fail this most basic of tests. But, if you're brave enough to be honest with yourself, you already know this.

Instead of just inventing legal claims out of thin air, just this once, try actually doing some real research and then applying the results of it to your sweeping legal claims. You might be surprised.

DJ

Knowing that the works are edited is far from sufficient. Do you even know what 15 USC § 1125(a) provides? The directors names are being used to indicate approval of a work which they did not approve. No disclaimer can overcome this, especially one completely broad and devoid of specific content.

You can keep saying that over and, it does not make it any more true than it did the first time. No one looking to buy an edited version is going to believe that the edits are the original author's intent. All the "Director's Cut" editions of DVDs have banners all over the place saying exactly that. These don't. They don't say, "Official Studio Cut for Delicate Sensibilities" They don't say, "James Cameron's Official Aliens for The Righteous," and they certainly don't say, "Southpark: Smaller, Shorter and Cut." No, what they do have are labels obviously applied by Cleanflicks claiming that Cleanflicks has edited the original material for content.

Or more specifically:

<i>Likely to cause confusion or mistake?</i>
No Buyers must come looking for the edited version on their own, it isn't being sold at wal-mart or somewhere without context and each copy is packaged with labelling that says cleanflicks is the place chopping it up.

<i>Deceptive representation of affiliation, connection, or association as to the origin, sponorship or approval of the studio and/or director?</i>
No Cleanflicks is clear that they start with the original work and do their own hack job, all on their own.

<i>Commercial advertising misrepresents the nature or origin of the goods?</i>
No In fact, you appear to be arguing that the director's name should not be mentioned at all. If anything, that would be misrepresentation as to the origin of the copy and perhaps even a violation of the right of attribution. After all, the original disc didn't just materialize out of thin air, the studio sold it to cleanflicks that is the 100% God's Honest truth about the origin of the movie and to imply otherwise would be lying.


At least you've given up the horribly fallacious claim that First Sale trumps § 1125(a).

The point is so silly, so completely without merit and so easily shot down, that it did not even occur to me until you made it up.


You keep citing to this invented "perfectly legal" situation of editing a book and reselling it, but do you have any statutory or case law support for it? Or are you just guessing at it because you want it to be true?

Maybe it was something that you posted: "the owner of a particular copy ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy. I think it is the section of code colloquially referred to as, the doctrine of first sale. But, you know us laymen with axes, we see "otherwise dispose of" and think "chop it up like 300 year old-growth forest." Maybe a practicing lawyer with years of experience under his belt and no axes to grind at all would instead see it as, "store in a hermetically sealed container to maintain its pristine, untouched original level of quality."


What full-blown license?

It's statements like that which make me suspicious. Either you have some sort of bizzaro point that you are just waiting to pull out of your sleeve. Or, you are completely not paying attention.

What Cleanflicks purchases is a full-blown licensed copy of the original work. The same copy that the right of first sale lets them dispose of as they see fit. Each edit they make comes with this originally purchased copy, there is a one-to-one relationship.

Now, you might try to argue that cleanflicks bought one licensed copy and then resold one and a half copies to their customers. But a) that's only because the medium is not directly editable, unlike a paper book, and b) if your entire position rests on that technicality, then cleanflicks can just superglue their edit directly onto the original disc - tada! ONE copy fixed in the same physical object that Cleanflicks originally purchased.

The rest of your points keep trying to make a false analogy to copies of a derivative work independent of an original licensed copy where there can be no right of first sale. As that situation does not apply in this case they have no merit here.


Instead of just inventing legal claims out of thin air, just this once, try actually doing some real research and then applying the results of it to your sweeping legal claims. You might be surprised.

Yeah, you're right. I am so totally unfamiliar with Title 17 that I had no idea what the doctrine of first sale was. It was just some phrase I heard on the radio and I totally made up my own definition. Man, what would I have done without a lawyer with your <i>years</i> of practice in the field of intellectual property to set me straight and quote it for me. Quit being so full of yourself. Plain language, indeed.

That's not true (at least in the case of Blockbuster). Blockbuster buys directly from the studios, the discs are rental prepped in a distribution center then sent rental ready to the stores. The discs are the same ones you would buy at Best Buy, 2 disc releases are rented and Blockbuster always includes the bonus disc (even in 4-disc trilogies, Indiana Jones bonus is included with Temple of Doom rental and Star Wars bonus disc is included with Jedi). The only time Blockbuster may carry a different version of a film then the one you'd purchase at any retail outlet is when the title is direct to video or produced by the Blockbuster owned DEJ production company (Monster, for example).

Dealman - are you saying that BBV buys the entire retail packaging and tosses it at their distribution centers and then repacks the discs into their own lockboxes?

Based on my experiences with BBV, I'm always willing to believe that they will do something the stupidest, most cost in-efficient way possible. BUT, in this case I know that there is at least *some* difference between what you buy at BestBuy and what Blockbuster buys because most ofthe previously viewed discs for big-name movies that I have purchased from blockbuster have UPC codes that are rare enough that they aren't in DVD Profiler when I buy them (which is usually at least a month after retail release). I get the same phenomenon with big-name titles on HWV discs, although their UPCs on those titles are never the same as BBV's UPCs.

A couple of UPCs missing from DVDprofiler a month+ after release I would say is coincidence. But I'm talking over a hundred minimum. So, there is definitely some difference. Maybe it just a different UPC and everything else is the same, I haven't been to a distribution plant (and I certainly wouldn't believe anything a store-clerk says, even a manager, on this point) but if the studio can produce a different UPC you would think they could leave out the keepcases too.

Just in case those distribution plants are throwing out tens of thousands of keepcases, do you have a list of where they are? I'll volunteer to help them with their disposal problem and haul off a couple thousand empty keepcases to use as replacements for lockboxes on PVDs...

There is no doubt that Netflix buys rental only discs - they are stamped as rental only discs and sometimes are missing features. I believe they have a deal with WB for this.

That is a bunch of bull. Lynch made the decision to blur it on the DVD because he felt that he owed the actors some privacy. It looks pretty bad IMHO.

And no one buying an edited version will have any way of knowing what elements of the edited film come from the director and what elements come from the re-edit. Therefore, the editing causes a confusion as to approval of some or all of the edits.

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<i>Likely to cause confusion or mistake?</i>
No Buyers must come looking for the edited version on their own, it isn't being sold at wal-mart or somewhere without context and each copy is packaged with labelling that says cleanflicks is the place chopping it up.

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Again, that general disclaimer doesn't inform the consumer as to what specific edits are modified and what specific elements of the film are left unchanged.

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<i>Deceptive representation of affiliation, connection, or association as to the origin, sponorship or approval of the studio and/or director?</i>
No Cleanflicks is clear that they start with the original work and do their own hack job, all on their own.

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But the film still says "Directed by X" on it. Therefore, it depectively states an affiliation between the director and the edited version.

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<i>Commercial advertising misrepresents the nature or origin of the goods?</i>
No In fact, you appear to be arguing that the director's name should not be mentioned at all. If anything, that would be misrepresentation as to the origin of the copy and perhaps even a violation of the right of attribution. After all, the original disc didn't just materialize out of thin air, the studio sold it to cleanflicks that is the 100% God's Honest truth about the origin of the movie and to imply otherwise would be lying.

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The relevant origin is not the original of the piece of plastic, but rather the content. Putting the director's credit on a re-edited work causes confusion as to the edited work as having originated with the director. This has been basic stuff since Gilliam v. ABC, 538 F.2d 14 (2d Cir. 1976). Seeing you sloppily attempt to argue it now is pretty funny.

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At least you've given up the horribly fallacious claim that First Sale trumps § 1125(a).

The point is so silly, so completely without merit and so easily shot down, that it did not even occur to me until you made it up.

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What's silly? When you claimed that First Sale trumped § 1125(a)? Indeed.

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Maybe it was something that you posted: "the owner of a particular copy ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy. I think it is the section of code colloquially referred to as, the doctrine of first sale. But, you know us laymen with axes, we see "otherwise dispose of" and think "chop it up like 300 year old-growth forest." Maybe a practicing lawyer with years of experience under his belt and no axes to grind at all would instead see it as, "store in a hermetically sealed container to maintain its pristine, untouched original level of quality."

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So what do you propose "dispose of" means? Simply anything you want it to? Since First Sale is specificly a limitation on the distribution right, it cannot be read to grant an exception to the other rights. Therefore, whatever "dispose of" means, it can't mean "copy," "create a derivative work," etc. Otherwise, there would be no need for a specific list of rights in 106, and we'd just have the all-encompassing "disposition" right. Sadly for you, this isn't how it works. Thus, if what one does with a copy of a work creates a derivative work (as Clean Flicks clearly does under statutory and case law that you don't even bother attempting to rebut), then First Sale provides no solace from an infringement suit.

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What full-blown license?

It's statements like that which make me suspicious. Either you have some sort of bizzaro point that you are just waiting to pull out of your sleeve. Or, you are completely not paying attention.

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What's bizarre about it? What license are you talking about? Be specific. Obviously you think that simply purchasing a product alone grants a license. It doesn't. First Sale is not a license. It's basic misunderstandings like these from clueless folk that keep such rampant copyright mythology going.

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The rest of your points keep trying to make a false analogy to copies of a derivative work independent of an original licensed copy where there can be no right of first sale. As that situation does not apply in this case they have no merit here.

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What false analogy? Clean Flicks creates derivative works. That they maintain a 1:1 copy ratio is irrelevant. The derivative work right is completely independent of any copying. Simply creating the derivative work is a violation.

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Yeah, you're right. I am so totally unfamiliar with Title 17 that I had no idea what the doctrine of first sale was. It was just some phrase I heard on the radio and I totally made up my own definition. Man, what would I have done without a lawyer with your <i>years</i> of practice in the field of intellectual property to set me straight and quote it for me. Quit being so full of yourself. Plain language, indeed.

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...And yet you still think that First Sale allows the creation of derivative works. Once again, more uninformed blather instead of actual research.

DJ

You know, the original question has been answered and the thread's deteriorated into people repeating each other's truths and rumors...