November 4, 2005 | By Rebecca Jeschke

Big Win for Fair Use in Colorado Court

For years, EFF has been following a case in Colorado District Court involving Family Flicks and Play it Clean Video -- companies that make and distribute copies of movies with sexual and violent content removed. The Motion Picture Association of America (MPAA) and a number of prominent Hollywood directors claim this is copyright infringement.

EFF has no opinion on that aspect of the case. What interested us was a particular element of the claim that would have broad implications for fair use of copyrighted material. When Family Flicks and Play it Clean Video make their "clean" copies, they first make an "intermediate copy" of the entire movie in order to edit it. The MPAA claimed that the copy was an infringement as well as the final product.

In an amicus brief filed in August, EFF argued that as long as making clean movies is not itself an infringing activity, the practice of making intermediate copies should be considered non-infringing also. It's an important point, because intermediate copies are crucial to the process of creating new copyrighted works. For example, a documentary filmmaker might need to make these temporary copies in order to include clips in his or her film. In the software industry, the process of reverse engineering often also requires intermediate copies to be made, and courts have considered this a fair use.

In response to EFF's amicus brief, the MPAA turned around and quickly conceded the intermediate copying issue, claiming that despite explicitly raising the issue in their brief, they never sought to make such copying illegal. The court ruled this week that because the MPAA had dropped the issue, there was no need to rule on it and thus, EFF's amicus brief was also moot. It's a strange way to win a case, but we're glad to know we helped keep fair use intermediate copying safe, at least for the moment.

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