Entertainment Law Reporter
www.EntertainmentLawReporter.com
July 2006 Volume 28 Number 2

Making “sanitized” copies of homevideos infringes movie studios’ copyrights, federal court rules in Clean Flicks case

The movie studios have won an important victory against Clean Flicks and other companies that make and distribute “sanitized” copies of homevideos. Federal District Judge Richard Matsch has granted the studios’ motion for summary judgment, holding that those who make and distribute “sanitized” copies of movies infringe the studios’ copyrights.

Clean Flicks and a company called Family Flix copied movie videos to a computer, edited the computer-based copies, and then rerecorded the edited versions back to DVDs or videotape. Both companies purchased an authorized copy of each movie they edited for each edited copy they sold. For that reason, the companies argued that they weren’t causing any financial harm to studios.

Nevertheless, they were making and distributed unauthorized copies, and thus were liable for infringement, Judge Matsch said, “in the absence of any applicable defense.” The defense the two companies asserted was the fair use defense; and the companies put particular emphasis on the “harm to the copyright owner” factor.

Judge Matsch, however, ruled that making sanitized copies of movies is not a fair use. The question of “harm,” the judge observed “is more than merely a matter of marketing; it is a question of what audience the copyright owner wants to reach.” Clean Flicks and Family Flix were selling to an audience the studios had chosen not to reach.

The judge also noted that just last year, Congress had considered the issue of “sanitizing” movies for home viewing and had enacted legislation that permits one sanitizing technique – but not the technique used by Clean Flicks and Family Flix. The Family Movie Act of 2005 amends the Copyright Act so that no infringement occurs when “limited portions of audio or video content of a motion picture” are made “imperceptible” during “private home viewing,” if “no fixed copy of the altered version of the motion picture is created.” (ELR 26:11:4) A company called ClearPlay sells movie-specific software that instructs specially-designed DVD players to fast forward through certain scenes and to mute certain sounds. But ClearPlay’s software does not physically alter users’ DVDs, nor does it make copies of DVDs. That software is like a computer-driven fast-forward button that leaves DVDs intact, in exactly the condition they were in when customers first bought or rented them from video stores. This legislation was relevant, because the legislative history of the Family Movie Act showed that Congress had heard “and rejected” the policy arguments made by Clean Flicks in this case.

Clean Flicks of Colorado, LLC v. Soderbergh, 433 F.Supp.2d 1236, 2006 U.S. Dist. LEXIS 47700 (D.Colo. 2006)