Boycott SmartFlix!

[TwistedLincoln]

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.

Thank you, vidled. I very much appreciate your seeing the whole picture here, even if we disagree in the end.

I do try to be consistent in my beliefs, as best I can. I do not think it is appropriate to use other people's music or work in one's projects without permission. That's distribution, plain and simple, not use. And if someone else's work is used in a significant manner in your project (not in the background in an insignificant manner in a doc, but a clear precense -- like the soundtrack, etc), then they deserve compensation. In that case, they have added real and substantial value to your work.

Renting out DVDs, on the other hand, is simply another way to use a physical product. That's where I draw the line -- once one is simply using a product (rather than distributing it), I am much more likely to defend their actions.

What frustrates me to no end is that many don't see the distinction between use and distribution. How much money the copyright holder loses in the process has no bearing on the ethics. It is unethical to use someone else's song in your short film without permission, even if you never make a dime off of it, and even if the songwriter never loses any money.

And when it comes to using a product, the same issue applies. Here it is an issue of freedom, not price. It shoudn't matter if SmartFlix is making millions renting out DVDs, or if they did it for free just to help people out. I will defend people's rights to use what they paid for, just as I will always attack people who try to use something without paying for it.

 

[TwistedLincoln]

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?

I don't think a license agreement prohibiting rentals would be binding if you placed it on the disc menu or case, because the customer won't read it until they've already purchased the disc. And once they open the disc to see the menu, most places (including myself, I might add) wouldn't return it. That's the same problem I have with most software EULAs -- you have to accept them to use the software, but you can't read them until it is too late to get your money back if you don't agree...

You'd be much more successful getting those restrictions to be binding if you actually put the terms on a "click-through" section on the ordering page. That way you could prove (through server logs, etc) that the user at least had the opportunity to read your terms before buying. If they bought anyway, and then broke your terms, you have a case. Don't know if it would hold up in court, but it certainly seems like at least your intent can be clearly established.

Putting the notice on the disc itself and the case is still a good idea though-- that way if your customer sells the disc, the next person knows what the license terms are as well.

 

[Sad Max]

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.

This is not how ABC, NBC, CBS and Fox corporate look at it. They insist upon clearing everything - and I mean, everything. You probably wouldn't believe the quantity of clearance paperwork that floods seemingly every show now: even logos and business/product names deemed too similar to existing real-world entities, get nixed by the clearance departments.

This might have more to do with being over-cautious; perhaps the networks don't really have anything to fear, from a Coke billboard in the deep background of a shot (but they make us matte over it) or a Dell logo on a monitor (but they demand that we put tape over it). But it has become standard practice, none the less.

And, it's not so much about Coke being an everyday object in public life, as it is about the Coca-Cola Company wanting to have control over how their product is presented, and any associations formed around it. If someone over there is uncomfortable with a murder mystery where a Coke billboard is visible through the window of the psycho murderer's apartment, maybe they choose to make trouble because they fear that the shot creates a linkage between Coca Cola and psycho murderers. This is the kind of thinking we deal with...

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!

Well, that's just normal baseline hypocrisy.

 

[OldCorpse]

This is not how ABC, NBC, CBS and Fox corporate look at it. They insist upon clearing everything - and I mean, everything. You probably wouldn't believe the quantity of clearance paperwork that floods seemingly every show now: even logos and business/product names deemed too similar to existing real-world entities, get nixed by the clearance departments.

This might have more to do with being over-cautious; perhaps the networks don't really have anything to fear, from a Coke billboard in the deep background of a shot (but they make us matte over it) or a Dell logo on a monitor (but they demand that we put tape over it). But it has become standard practice, none the less.

Yeah, I think they're simply trying to avoid getting entagled in lawsuits. However, legally they are on very strong ground (unless they do something malicious, like intentionally make libellous statements about a product in order to damage the company). The courts recognize the particular leeway artists need in such matters - just as a similar leeway is recognized for journalists (a journalist can make even factually incorrect damaging statements about someone, but unless you can prove malicious intent, jouro goes free).

That doesn't mean that overeager lawyers on retainer won't file suits left and right, and if it's just easier and cheaper to cover up the logos, then why not do that and not go through the headache of protracted legal actions. That's why there is such a thing as intimidation suits - even with no grounds, you can shut someone down simply by issuing legal threats (unless you have massive $$$ and time and will).

 

[Christopher Barry]

You'd be much more successful getting those restrictions to be binding if you actually put the terms on a "click-through" section on the ordering page. That way you could prove (through server logs, etc) that the user at least had the opportunity to read your terms before buying. If they bought anyway, and then broke your terms, you have a case. Don't know if it would hold up in court, but it certainly seems like at least your intent can be clearly established.

Putting the notice on the disc itself and the case is still a good idea though-- that way if your customer sells the disc, the next person knows what the license terms are as well.

Hi Tony, good point regarding on-line purchasing. I had thought of that and thought I had generally covered that ("and this is disclosed at/before the point of sale"), although failed to explicitly cover the on-line purchase scenario in my example. :dankk2:
I am still not certain if this is now binding on the original purchaser (that old case law David mentioned earlier in the thread?) and then there is the sale to a 3rd party scenario, the Saturday garage sale and/or eBay (first sale doctrine)?

Welcome to the mine field (mind field)...

 

[David Jimerson]

They will ignore you.

Ignore us? How?

If they approach us, we know who they are and what they plan to do.

Unless they intentionally hide it through a dummy sale. In which case, YES, I would be as scornful of them as I am of SmartFlix.

But they have no reason to do that.

 

[cwebster]

I'm curious if the majority of the videos here are in the form of DVD-movies that can be played on all DVD players including computers or, are they QuickTme, WMV, AVI, etc files that are more commonly played on computers only?

I don't want anymore of my stuff being rented...PERIOD! We can protect ourselves by repackaging and making the DVD information INSTALLABLE to a computer. It is then software and can not be rented PERIOD!

As long as the normal mode of operation of the dvd is not
installation, it is considered a conventional DVD and can be rented. Make it where it has to be installed or watched via a computer program installation, and that's the end of the rental. That is the law! If you want to protect your stuff from being legally (although not ethically) rented, release it in some form that must be installed to a computer.

 

[David Jimerson]

I don't want anymore of my stuff being rented...PERIOD! We can protect ourselves by repackaging and making the DVD information INSTALLABLE to a computer. It is then software and can not be rented PERIOD!

As long as the normal mode of operation of the dvd is not
installation, it is considered a conventional DVD and can be rented. Make it where it has to be installed or watched via a computer program installation, and that's the end of the rental. That is the law! If you want to protect your stuff from being legally (although not ethically) rented, release it in some form that must be installed to a computer.

Not very customer-friendly. Would cost more sales than the rentals and sour our reputations.

 

[sean90291]

Can't you just include one piece of software on the DVD disk? I think someone else mentioned that. SmartFlix would not be allowed to rent the DVD because it contains software, and they would not be allowed to copy just the video portion because that WOULD be a violation of copyright. Starting to sound like the best fix to me. Every creator of video tutorials on DVD must include a little software in a separate file on the disk that specifically precludes rental.

 

[Greggl]

Err.. you sure about that? I've rented plenty of studio features that include
software apps, gamelets for the kids, etc on the dvd-rom 'computer only'
portions of the disc.

 

[arrestthisman]

I love how filmmakers and musicians call themselves artists, and then ***** about copyright.

If someone is watching your film or listening to your song, however they got it, you should be happy. Period. Otherwise you are nothing but a SALESMAN. Selling a product. A product is not art.

 

[Steve_Arm]

Relax. Making a living is a different thing from making art and a different thing from getting ripped off.
The conversation here is about products that are made for selling.
I urge you to read all 22 pages.

 

[Christopher Barry]

Steve, what's your view on my question raised at #200?

[SIZE=+0]I know there may be no definitive answer, as the law is subject to interpretation, and may also require acts of litigation and/or legal defense to resolve a specific set of facts, on a case by case basis.[/SIZE]

A lot of good discussion in this thread, however, perhaps we should distill a summary of the best methods we can implement into/onto our products to best protect our media interests (if at all legally possible/enforceable)? Erik provided a EULA sample, and discussion of placement on the product case/DVD/DVD menu acknowledgment ensued. You (Steve), David and others have highlighted various legislation provisions, doctrines and case law. Perhaps there is no method to legally prevent our products (say various DVD content), from ending up on a rental store's shelf at the cost of a retail version of the product or less (second hand), end of story?

 

[Steve_Arm]

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:

A suspicious author should enter a screenshot with copyright info on the DVD before the menu at least, if he doesn't have a case with cover.
Bying from Mr Joe doesn't mean that he is the owner of the disc.
Of course you are aware that I'm not a lawyer?

One should be protected by all means and search for even for the tiny details.
Definetely an agreement should be made on the spot as someone mentioned before.

 

[SmartFlix]

A reply from SmartFlix

A reply from SmartFlix

Hi,

This is Travis Corcoran founder and president of SmartFlix.

I'd first like to thank the group, in advance, for letting me post here, and (hopefully) taking a few minutes to read over my post and give me a shot at presenting the other side of the debate.

A few assertions that have been brought up here, including:

* we have illegal copies in our inventory
* it is illegal to rent out videos without paying royalties

Addressing these in order:

We do not have a single illegal copy of any video anywhere in our inventory. We've communicated with dozens and dozens of vendors and reassured them of that, and also told them that if they ever want to do an audit of our inventory for illegal copies, we'd be happy to help. We've got over a dozen 3" binders filled with receipts for every purchase we've ever made, and we can document the legal origin of every one of the tens of thousands of DVDs in our inventory. I take copyright violations very seriously, and would NEVER engage in such activity.

As some here have already pointed out, it is perfectly legal to rent out videos, assuming that they were legally purchased. This is called the "First Sale Doctrine", and it has been part of the law for a century. SmartFlix consulted with a lawyer before going into business, and we are a member in good standing of the EMA - an association of video rental stores.

I am (believe it or not) troubled by the fact that several folks have called the business of renting videos "unethical". I, like most folks, try to be an ethical person, and if I consider a certain course of action unethical, I will not do it, even if it is legal. I've gotten into heated debates with marketing folks, etc., because I want to engage in business in a way that will let me sleep at night.

The ethics charge basically boils down to two points: (1) a rental market cuts into author profits; (2) a renter should talk to an author before renting out his or her videos.

The first point is an easy one... it basically boils down to a matter of economics, and facts that the industry as a whole has learned over the past few decades. When the first video rental stores came into business in the 1970s the studios fought them tooth and nail, and took the lawsuits all the way to the Supreme Court. The court reiterated the First Sale Doctrine, and told the studios that when someone legally purchases a copy, they can rent it out.

...and then a funny thing happened.

Over the following decades, Hollywood's profits exploded. Selling to rental stores became a big slice of their business (and profits), almost as large as the initial release in the movie theaters.

Sales to video rental stores weren't undercutting direct sales to customers; they were complimenting them.

I'm sure that everyone reading this thread rents videos monthly, if not weekly. Let me ask you an honest question: if X-Men 3, or Bridges of Madison County, or whatever wasn't available for rental, can you honestly say that you would have purchased each and every one of these titles?

I have a pretty robust DVD collection at home - probably 1,000 dvds or more (obviously I love movies) ...but I still rent videos every week. The two are complimentary. In fact, I often sample dvds by rental, and then buy them. This is especially true with boxed sets - I sampled Sopranos, The Wire, The Shield, etc. by rental before purchasing...and I now own every season of each of those.

Finally, in order to provide a rental service, SmartFlix puts a lot of money in authors' pockets via our original purchases. A quick check of the database shows that we own 1,501 different copies of videos in the Digital Art category, and another 846 in the Audio / Visual category. At maybe $40 per disk, that's just shy of $100,000 that we've pumped into this marketplace.

So, to summarize the "lost sales" argument:

1) when folks rent, many are often unwilling to purchase at the listed price, and thus no sale is lost.

2) but other folks are interested in purchasing, and rent to test the waters before committing.

3) a rental company purchases LOTS of videos, which puts money into authors' pockets.

Now, to address the "we should talk to the authors before renting out their videos" point: this isn't a bad idea, and we love it when we have author buy-in (as we do for many of our videos - lots of times we first hear of an author or a video when the author comes to us and asks us to distribute their video, to make it more widely known, and/or to give it buzz). Unfortunately, getting in touch with every author isn't practical. We carry almost 5,000 titles, from over 1,500 different authors, purchased from nearly 700 different vendors. Barnes and Noble does not contact authors before they carry a book. Netflix does not contact actors, directors, and DPs before they carry a video. La-La does not track down musicians before they allow a CD to be sold.

That having been said, I would far, far prefer to have good relations with artists and authors, and always respond in a timely manner, and always give them my direct-dial phone number, so that if they have any question, about any topic, they can get in touch with me, directly, immediately.

Speaking of which, I'm going to post my direct phone number here, as well (down at the bottom of this post).



Now, addressing a few smaller points:

Jdajda compares renting out a movie to renting out a CD. In fact, US Copyright law makes it illegal to rent out music, but explicitly makes it legal to rent out a movie. The idea behind the law is that the only reason someone would rent music is to copy it (thus undercutting a sale), but this is not true of videos.

Steve Arm says that renting out videos is a "loophole". In fact, Congress and the courts have established the First Sale doctrine quite intentionally. When you buy a car, Ford doesn't get to tell you who you can rent it to, or if you can resell it. If you buy a book (another example of a physical item that holds intellectual property), the author doesn't get veto power over selling it used, or if you can loan it to a friend, etc.

BenB says at one point: that Netflix and SmartFlix have "two very different business models." In fact, they're identical.

Chris Messineo says that it's a shame that we don't give money back to the original authors. In fact, we have a pay-per-rental program that we're using with a few vendors, where we do exactly this. I told BenB about this program in email.

Eignacio wonders if businesses, colleges, and institutions that rent out videos have to pay more. The answer is no. Alex DePew notes that if a purchaser wants to show it to multiple people, they DO pay a higher rate, and he's right. Showing a video to multiple people simultaneously is called "public performance", and special deals must be negotiated for that...and that's why we put in the terms of service that customers of ours are not allowed to show a video in public.

BenB also mentioned that a rental market could kill of the how-to video space. We've seen the opposite: in the four plus years we've been in business, we've seen an explosion in the how-to video market, and we've had lots of first time authors get in touch with us to ask us about the market, and how to get their video "out there".

Cecil995 says that because we rent out DVD+/-R videos, we have "shady practices". Again, we own only legal original copies. Some smaller vendors issue their titles on DVD+/-R (for example, I believe that every author who sells via Customflix is selling DVD+/-R disks). Greggl notes exactly this point in one of his responses.

Cecil995 also says "The only reason smartflix is probably getting away with this is because the copyright holders are small time producers". In fact, the larger producers are usually very accepting of our business model. Magills, AGI, and a few other vendors have dozens, if not hundreds of titles each, and when they got in touch with me, we had very short conversations, along the lines of "They're all legal copies?" / "Absolutely!" / "OK, I just wanted to know who I was dealing with and that you're buying originals straight from us". It's typically the smaller producers who are unfamiliar with the economics of the rental market, and who are unfamiliar with the copyright law, and who get upset.

Anyway, I've had my say, and I thank those (few?) of you who have read this far. I really do appreciate your taking the time to hear the other side of the debate.

If you have any questions, please don't hesitate to contact me. While I always supply my phone number to authors, I've never made it public on a discussion board before, but the folks here seem very mature and reasonable, so I think it's a risk worth taking.

If anyone in the filmmaking community here at dvxuser.com wants to talk to me, they can email me at tjic_dvxuser@smartflix.com, or you call me directly at (781) 316-2739.

(I do note that we're having the phone lined moved from the old office to the new office as I type, so if you don't get through with in the next 24 hours, I'm not dodging your calls).

Thank you for your time,


Travis J I Corcoran, President
SmartFlix

 

[Erik Olson]

Travis,

I appreciate you taking the time to come into the lion's den and weigh in on this debate over your business model.

As you are certainly aware, the core point of the debate over these 22 pages is that your company purchases titles intended for single license end-user use on the open market and rents them out for profit.

You don't address this key central issue that content creators have with your rental model.

The simple answer I'd suggest is that you immediately formulate and implement a baseline $/min. mass license offer for any author (really should be all authors whose titles you've purchased on the open market in this manner) who approaches you to dispute your distribution of their intellectual property.

No residuals, just a one-time flat amount per finished minute as a license for each physical copy in your library. It could be pennies on the minute. Conversely, if the offer on the table isn't accepted, you should offer the author a chance to buy back their titles at FMV and forever remove them from your library of available titles.

I'm not against the rental industry - it definitively makes titles available to a much broader and disparate segment of the public market.

Play nice and you'll be respected and embraced by this growing segment instead of threatened and lamented as illustrated through these hundreds of posts here.

e

 

[David Jimerson]

No, Travis; despite your rather opportunistic mischaracterization, no one is saying that tbe "business of renting videos" is unethical. One thinks you protest too much.

What's unethical is the sneaky way in which you go about what you do.

You do not, as other rental businesses do, approach a content provider in good faith and ask to purchase content for your business. You buy retail copies with no indication whatever what you plan to do with it, and leave it to the content provider to figure it out, if they ever do.

Then, of course, as others have said, once people were on to SmartFlix.com being the buyer, you started buying under other, more innocuous names.

That's nothing but bad faith. You know full well that it's not what the sellers have in mind when they offer their product for sale to the public. The sellers sell in good faith. You purchase in bad faith. What you do (in terms of that) may not be illegal, but it's slimy. And you know it is. Or maybe you don't. And if you don't, then I'm sorry for you.

(And it's ironic, because if you had approached us openly, we could have worked out a deal which may have garnered you more copies at a better price, and we wouldn't think so poorly of you now. Sadly, that option is no longer available to you.)

You also say that you don't have time to contact every provider. I'd wager that in 90% of the cases where you purchase, you're purchasing directly from the vendor himself, and you're doing it manually. If you have time to make the purchase, you have time to add a note.

You've said, in various fora around the web, that your business is based on making it so that people don't have to pay the content providers for their product. Then, here and on your website, you play at arguing that it's good for the content providers, too. Hogwash. I'd like to see some data to back up your assertion that your renting the material has resulted in increased sales, anywhere.

You say you're just doing what Blockbuster or Hollywood or whoever do.

Well, if you want to be Blockbuster, then order 10,000 copies from us, negotiated openly, on contracts based on Blockbuster's, and we'll completely change our opinion of you and your "business model."

Now, as you presume to lecture people on the law, perhaps you can give your opinion on this little bit of legal analysis . . .

You say on your website that in using screen caps and "descriptive text," it's "clear" that you're covered by Fair Use.

In our case, the HVX BootCamp DVD Vol 1, let's go through the points of Fair Use, shall we?

1) You are not a library. You are not a school. You are not a news organization. You are not a research organization. You are not a non-profit organization. You are not in the business of disseminating information for the sake of information. You are a for-profit company which creates, as far as we can tell, none of its own content.

2) Our work is commercial, and it is the culmination of thousands of hours and thousands of dollars worth of study and preparation, none of which were done by you or anyone connected to SmartFlix. We are not a large company, and anything which interferes with the sale of even a single copy of our work represents a real financial hardship to us.

3) The screencap may be only a single frame out of thousands, but it represents the very heart of the DVD set – the operations of the HVX200 being explained by Barry Green, the internationally-recognized authority on the camera, and a man for whom you do not have image rights. Our DVD has far more market value than any competing HVX200 DVD precisely because it is presented by Barry, whose knowledge of the camera is recognized to be unsurpassed. The DVD is sold partially on his reputation. Therefore, using his image is not minimal, and in fact goes to the heart of the set.

Further, the text you used is a verbatim copy of the text on our Amazon.com product listing. It, too, is covered under copyright, and your purchase of the DVD does not in any way entail the right to use that text. And being a word-for-word, complete copy of our listing text, it is definitely not minimal.

You are not using these items to criticize or as a parody. You are using them in order to further your business.

4) You have said repeatedly over various places on the Web that your business exists specifically so that people don’t have to pay the producers of the videos you rent the sale price of their work. Your entire intent is to interfere with our business, and you are unapologetic about that.

We are a small-volume company, so as I said above, every sale we do not make represents a hardship to us, and does have a real, negative effect on the market potential and the value of our product. Simply put, if people do what you intend for them to do, and avoid paying us the $60 for our DVD set, and instead rent it from you, the value of our product is harmed.

Therefore, under the four points of the Fair Use test, you are NOT “clearly” covered.

Thoughts?

 

[cwebster]

Read this and see if YOU think it is a fair, ethical offer.

HERE IS THE PAY-PER RENTAL PROGRAM OFFERED BY SMARTFLIX (After they already have your video):

Although under 17 U.S.C. 109 it is clearly lawful for the owners of a
non-infringing copies of an audiovisual work to rent those copies to
whomever they choose without the consent of the copyright owner and
without paying royalties, it is the case that two parties may enter
into an agreement to pay a per-rental fee for the use of a legal copy
instead of paying an up-front fee.

Thus, we hereby agree that Technical Video Rental, Inc. a
Massachusetts corporation d/b/a SmartFlix.com ("SMARTFLIX"), and
_________________________ ("VENDOR") shall enter into an
agreement whereby VENDOR owns multiple legally created copies of
several instructional / educational / documentary dvds, and loans
those dvds to SMARTFLIX for an indefinite period of time for the
purpose of SMARTFLIX renting them out to customers.

SMARTFLIX shall not be liable for destruction, theft, or damage to
the DVDs. In the event that SMARTFLIX is forced to be liable for
destruction, theft, or damage to the DVDs, the DVDs shall be priced at
$1 each.

In consideration, SMARTFLIX shall pay VENDOR $1 for each time one of
said dvds is rented out. Amounts owed shall be computed quarterly.
At any quarter boundary when the total amounts owed exceeds $50,
SMARTFLIX shall pay VENDOR the total amount owed via a check, mailed
no later than 30 days after the close of the quarter.

VENDOR shall have the right to verify the accounting by inspecting
SMARTFLIX database records and other resources with a SMARTFLIX
corporate officer up to four times per calendar year.

​

 

[Jason Ramsey]

Travis,

You speak of being ethical. My main question for you is this:

If you have such a strong desire to be ethical so you can sleep at night, then why do you purchase dvd's under names other than that of your company? The company for which the DVD is intended for. Do you consider that ethical? Don't you consider that misleading? Purposefuly hiding behind a false name? Why can't you be straightforward as has been requested here? Both in your purchasing tactics, and in your dealings with authors who you apparently so highly value.

Why are so many people saying that when they have contacted you after they found out that you purchased one of their products, that you were anything BUT polite, courteous, etc.???

I also am interested to here your response to David's questions. Particularly the use of screen captures, text, etc. that were not sent to you, nor authorized for you to use as promotional materials for your own for-profit endeavors.

Thank you,
Jason

 

[Barry_Green]

Travis, sorry, that just isn't going to fly. You're being extraordinarily misleading in your arguments. You try to equate Hollywood video rentals with the individual training video business, and there's simply no comparison. Let's look at it, shall we?

First, Hollywood movies have multiple revenue sources outside of home video rental. Theatrical exhibition, cable, network broadcast, foreign sales, foreign theatrical, airlines, merchandising, music soundtracks... all of those are avenues open to Hollywood movies. We training video producers have NONE of those options available to us. We only have direct sales to home video.

So if Blockbuster were to threaten the home video sales model for a studio, it would be inconvenient -- but it wouldn't be a "death blow." Your renting of our product very much threatens a "death blow" -- you are interfering with our ability to sell our product, subverting our market, and taking from us the very market that is our only outlet. Night and day different, wouldn't you agree?

When the video rental business was beginning, and when Hollywood quit fighting it and instead embraced it, it was a very different business than it is now. Single copies of VHS videotapes were sold to the stores at around $250 each. And how many stores were there? As of today Blockbuster claims 8,000 stores. Factor in the peak of other chains too, and there were, what, maybe 25,000 or 30,000 stores out there? Each buying two to 10 copies of the hot movies? At $75 to $250 each? Let's do some hypothetical math, and say that there were 25,000 stores, buying an average of four copies, at $100 each: that's $10,000,000.00. Ten million dollars. I can well see why Hollywood would quit fighting that -- the rental industry was a ten-million-dollar end customer.

Now let's compare that with reality, shall we? Are you offering to buy ten million dollars worth of my title? If you do, I'll drop any claim that you're harming our business, because you would become (as Blockbuster became) a big-enough customer to warrant tolerating the rental business. But, sadly, for training video releases, that's just not reality. Reality is that there's a tiny market for special-interest how-to videos. BenB said he'd be lucky to sell a hundred units. A great-selling title might sell 1,000. And you undercut a serious portion of that by buying one or two copies from us. I've got maybe 1,000 potential customers over the lifetime of a title -- and you come in and offer it to them for 1/6 the price, so they go to you instead of me. And that means that if half my potential customers go to you instead of me, you've taken half my market and probably ALL of my profit. The first half of my sales might go to making up expenses. I was counting on those additional sales to make a profit and make it all worthwhile.

But you took it from me. Without my permission, against my will, and against my knowledge (because you buy products under hidden names or at least non-obvious names). Doesn't that make it hard to sleep at night? It should.

Here's the bottom line: you want to talk about "ethical"? WHEN AN AUTHOR OBJECTS, STOP TAKING HIS BUSINESS! If someone wants you to stop doing something, something that's actually hurting them, and they ask you nicely, and they get so upset that they even want to resort to using a lawyer to get you to stop -- why not just look in the mirror and say "hmmm... I'm causing this person serious anguish. I don't feel too good about myself now. Maybe I should stop harming them." Wouldn't that be a little more ethical? Stop hiding behind what's "legal", I'm talking about what's "right." And what's right is to recognize when you are hurting and causing distress, that you should want to NOT hurt and NOT cause distress, and that you take actions to stop being a source of hurt and distress.

If you actually cared about the authors, and about ethics and morality, you would conduct your business morally and ethically and above-board. You would approach the authors (who are NOT hollywood studios! These are little single-person operations, fer cryin' out loud!) and ask their permission. You say some authors have asked you to please include them in your catalog. Fine. Work with THEM. Treat them well. And for those of us who are begging you to stop abusing us, how about you (here's a thought) STOP abusing us? Call it quits. We'll buy the discs back from you. Remove us from your catalog. No harm, no foul.

I can accept the premise that perhaps you didn't really truly understand how badly you hurt the indie authors. But now you are fully made aware, so you no longer can hide behind that excuse.

So now the ball's in your court -- how do you respond?