Boycott SmartFlix!

[TwistedLincoln]

Oh my god you are so out of touch! Explain how telling an author to ef off, in this specific instance, even if you legally can, is ethical? I'd love to hear that explanation!

As I said, if the author approached them in a reasonable manner, and they still told them to "f off", then that would be inappropriate, and not at all ethical. They do have a duty to treat others with a basic amount of respect.

However refusing to remove a product from their catalog is not in itself unethical, if done in an appropriate manner. As I haven't dealt with them, I cannot say in which manner they have acted.

 

[bbalser]

I have, I posted the comments, ignore what you want, fact is, they SAY UP FRONT they don't care what authors think. How can you continue to dance around that FACT?

There are several authors I personally know who HAVE approached them, and they just said, "tough titty, dude."

Spy, all I can think...

 

[Greggl]

If Netflix carried the BootCamp DVD, they'd have approached us openly about it.

So there is a difference between being mugged, and being mugged by a
polite assailant?

As for ethics, some of us work on projects that touch on some tricky areas
of fair compensation, 'alternative' subject matter and in mny cases, negligent
shooting practices as far as permitting, insurance and safety are concerned.

I'm not a fan of 'first use', but its there. I also would like residuals for some
of my work, but for what I do, still don't have enough clout with producers
to get it.

'How To' content providers are being burned by Smartflix and there may be
some legal remedies, but if the loophole really is there, then its just
business... and once its tested, expect other Smartflix(s) to appear.

 

[David Jimerson]

So there is a difference between being mugged, and being mugged by a
polite assailant?

It wouldn't be being mugged. We'd have the opportunity to decline, and there's probably a profit-sharing arrangement besides. But if there isn't, then we could sell at a higher price. All because they would approach us openly and honestly, which really does go a long way.

If you can't see the difference . . .

but if the loophole really is there, then its just
business...

So? No one said it wasn't "business." But there's a difference between acting legally and acting ethically.

 

[Greggl]

It wouldn't be being mugged. We'd have the opportunity to decline, and there's probably a profit-sharing arrangement besides.

Theres a lot of speculation in what you're talking. Though everything I've worked
on thats on netflix, was via a deal struck by the distributor.

So? No one said it wasn't "business." But there's a difference between acting legally and acting ethically.

Welcome to the industry then
Expect the worst out of non-creatives on the distribution end and you
won't be disappointed.

 

[Erik Olson]

So, all debating aside, where are we?

Are we decided that we're working toward creating two distinct products moving forward - one under a licensing agreement for the rental market (just like studio releases) and one for direct-sale to consumers? If so, I have an entertainment attorney that will look over the language in the policy card that would appear within the direct-sale editions.

On the licensed for rental versions, the standard FBI copyright tag should be enough.

For the new rental venture, please keep me informed and let me know if there is any way I can contribute to the work.

e

 

[Sad Max]

How is SmartFlix ripping off your hard work?? They buy a DVD in a fully legal transaction.

Their buying the DVD is not the 'ripping off' part.

At no time during that transaction did you make it clear that you are only selling them a copy under the conditions that they do not rent it out.

Is it reasonable to assume that a vendor would sell you a copy of his product, expecting that you would then use that copy to undermine his ability to sell more copies? Perhaps it's accurate, to say that every single product being rented, came without *any* notice that the purchase granted only the right to personal, not-for-profit use...but I sincerely doubt it.

Then they rent it out, and you somehow think you should get a piece of their sales??

I should point out that your use of the word "you" is kind of mis-leading, since I'm personally not involved with these people, at all.

But yes, I feel that the creator of content has a legitimate claim to a portion of the proceeds from the sale of that content. If he's smart, he buttons up the necessary language, all nice, tight and binding. If he's not quite that smart about it, well, that doesn't make it right and proper for someone else to take advantage. Legal, perhaps, but anyone who equates legal with fair, or legal with right, is some kind of dangerous simpleton. Even the lawyers that I know, do not make that equation...

That's the question that no one has answered. What is the reasoning behind the assumption that just because you create something, you should be able to control it AFTER you've sold it?

The reasoning is as follows: what has been sold, is the right to own and view and duplicate the work, for private, non-profit use. Not for duplication-for-distribution. Not for exhibition-for-profit, or distribution-for-profit. Now, I agree that someone who sells a copy of a tape or DVD without a sales agreement to that effect, is basically exposing themselves to whatever mischief the purchaser cares to perpetrate - in the strictly legal, letter-of-the-law sense. But in the world where we have professional ethics and a basic sense of fair play - those of us who have not attended law school, for the most part, anyway - taking your personal retail copy of someone else's work, and using it to (a) enrich yourself while (b) impoverishing them by cutting into their sales and (c) denying them a share of the proceeds so acquired is wrong.

I do get a bit offended by people telling me what I can and can't do with something I've purchased, despite the fact that such restrictions were never made known at the time of sale. It's one thing if I purchase something knowing what I'm getting into. It's quite a different story to get a suprise after I've paid.

You purchase copies of other people's work, under the assumption that it's fine to do anything not explicitly prohibited in writing on the box? I guess that's an example of the lawyerization of the society: screw what may or may not be right, so long as we can stick to the narrowest possible definition by which something may be legal. Yes, it will probably hold up in court (probably). It still stinks.

I have no desire to start a DVD rental service, so I'm arguing this on priciple, not because I want to actually do it.

Well, I think we're all arguing on principle, here. Except for the people who are losing money, and market share. And the people who are basically ripping them off, in order to get it.

I never want to see the day when I can't legally sell my old DVDs at a garage sale or loan them to a fiend because I'm somehow "taking money out of people's pockets" by causing somebody to lose a potential sale...

Fiends are notoriously untrustworthy and should not be loaned anything at all, under any conditions whatsoever.

I have never advocated downloading illegal music, copying DVDs you didn't purchase, or using software you didn't pay for.

But you *are* advocating collecting rental fees for someone else's work, without an agreement permitting the rent-collector to do so, and without compensation for the authors of the work whose work is being rented.

I'm not arguing that everything should be free, and to hell with those who make content. But people who buy physical, real-world products should have physical, real-world rights.

Well, intellectual property is not real estate. And buying a physical, real-world copy of a work, does not mean that you have purchased the rights to the intellectual property contained on that piece of media, to which you *have* purchased the rights.

Why is it that every time I see someone defend their behavior as being consistent with 'Christian Ethics,' they are behaving in a fashion that would probably have provoked Jesus to beat them unconscious with a money-changer's table...?

 

[Erik Olson]

Oh man, that was milk-out-the-nose funny. Great points SadMax. Hey! Do you know Brit Erwin?

e

 

[David Jimerson]

Theres a lot of speculation in what you're talking.

In what part?

There are two possibilities.

1) They would offer a share of the rental proceeds.

2) They would not, in which case, we would charge them more.

Is there another possiblity I'm missing?

Welcome to the industry then
Expect the worst out of non-creatives on the distribution end and you
won't be disappointed.

Never said I was surprised by anything.

 

[ChuckS]

They will ignore you.

 

[Sad Max]

Oh man, that was milk-out-the-nose funny. Great points SadMax. Hey! Do you know Brit Erwin?

e

I don't think so...what's his story?

 

[Erik Olson]

Just finished Loop.

e

 

[Sad Max]

We never intersected; I spent my time on stage or in the art dept. - never made it over to post.

 

[Steve_Arm]

Something similar:
http://luminous-landscape.com/forum/lofiversion/index.php/t12476.html

 

[OldCorpse]

Just a sidenote on the Coke story. Frankly, I think a producer could use a Coke bottle without permission and win in court against Coke. The argument would be "x being in the public object/figure". If Coke is such a part of daily life, that not using it would distort reality, and you are not using it to compete against them in their business, then you have the right to use it. Same thing as the difference between using a random private person's likeness in a movie, versus using a public person, such as a famous politician. You have a legally recognized right to, say, use the likeness of Bill Clinton in a totally fictional movie without either asking BC for permission or compensating him. And that's understandable. Otherwise you couldn't make most films or write many books - imagine if architects or builders sued you for having their buildings in your background shots ("we copyrigthed the design!"), and so on down to every single everyday object, knives, forks, clothes and so on. Bottom line, I think you could win in court against Coke in the Coke bottle suite.

Copyright laws were designed to help companies protect their product form being confused with another product or producer - so you can't sell your drink in a Coke bottle or with a Coke design and claim it's "Coke" all the while it's your own stuff. That's the whole point of copyright laws, and it's a distortion to use them to prohibit use of that product that has nothing to do with competing with Coke. It's this kind of stupid overreaching that causes consumer backlash - as the RIAA is finding out with music. Don't overreach. Coke was overreaching, and should be slapped down.

 

[Steve_Arm]

OK, while the smartflix dude can refer to the copyrights law title 17, paragraph 107
and think he is legit, see http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000109----000-.html

it is clear stated in there that he must be authorised to rent,sell or lease copyrighted work. That's where he is stepping I guess. Also read here that there are many tricks you can do to bring them in court:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000506----000-.html

But who would go into a law battle?

As for the hand-made DVDs... there so no way in 2007 where you can buy a ram for 50 bucks/euros, there are video authors that don't have a printer to print a label onto their "work"! Are we for real now? Smartflix promotes piracy.

 

[vidled]

Do YOU personally think they are ethical? That's why I started this! Do you or not? Answer up front and honest! It is a simple YES or NO answer.

Hello BenB, I apologise in advance, this is not the yes or no answer you seek.

The rest of this comment is not directed at you but just general observations.
A forum like this is a great place to share ideas, thoughts, and learned from each other. The sharing of ideas will ultimately lead to some persons offering ideas that are counter to one's own. This is a good thing.

Going back into the archives and reading all sorts of posts of people bragging about how they didn't get permission to use a location in their film; how they didn't pay for this and that; and how they used music in their film without permission ---> when some of these things were pointed out as being unethical or unfair to the content's creator or property owner, oftentimes the person pointing this out was shot down and told to chill.
It may be surprising to some to learn that TwistedLincoln (sorry, didn't want to mention names here) was one of the ones who oftentimes protected the rights of the content's creator, advising STRONGLY against the use of copyrighted material. I know this because it was these threads that I took interest in also.
This has been mentioned many times before, and it seems like we are going in circles, but all this cuts both ways.
Why is it, that when someone mentions that he or she filmed at the location in stealth without permission of the property owner, that it is considered Rodriguezque and cool? Why is it, that when someone posts a short film which includes tunes by Pink Floyd, no one comments about the music selection? And why is it, one the other hand, that if someone's work on here gets ripped off, every one screams foul play?
There seems to be this notion that a small-time player is allowed to bend the rules. Is that hypocritical? Is THAT ethical? Just because no money is earned from the use of someone else's work should not mean that it becomes ethical.

This discussion here about SF is a good one, and to the answer the original question; no, I do not think that this is ethical/honourable what SF is doing; but it would be nice if there were some consistency in this area.

There is definitely a different sentiment in these threads when one of us GETS ripped of, as opposed to when one of us is DOING the ripping off!

 

[vidled]

...I think a producer could use a Coke bottle without permission and win in court against Coke....

That completely depends on its use in the production; whether it is a "meaningless" inclusion, or if there is a STRONG point being made (as was the case in the Italian production mentioned here).

This falls into the Trademark Law category, for which this little comic might be helpful (also includes Copyright issues):
http://www.law.duke.edu/cspd/comics/digital.html
(put out by "Center for the Study of the Public Domain; Duke Law; specifically written for documentary film making, but worthwhile to get a grasp on the subject)

 

[David Jimerson]

It's trademark, not copyright. There are exceptions to trademark protection, but it's not "fair use" as described in copyright law.

 

[Christopher Barry]

David/Steve, example, if I make a DVD for sale via retail, with the limited licensing that Erik drafted (no rental, etc) and placed it on the disk, the cover/case and perhaps a DVD menu requiring an "I agree" not to breach conditions and this is disclosed at/before the point of sale, is this binding or going to prevent an SF type situation?

Say this DVD disc is on sold second hand from Mr Joe Retailconsumer at his Saturday garage sale or eBay listing, to a 3rd party, is the limited license binding on the 3rd party (including an SF type group)?

Some of the answers are likely here in the thread (first sale doctrine) and I will read those Statutory provisions that Steve posted above, when I get a chance. Appreciate any general legal interpretation/summary/opinion. :thumbsup: