11:05am PT by Eriq Gardner
Supreme Court Urged to Make Old Movies Digitally Available
There's not a single movie from 1960 streaming on Netflix. The absence of such classics as Alfred Hitchcock's Psycho, Billy Wilder's The Apartment and Stanley Kubrick's Sparticus was highlighted in an amicus brief submitted to the U.S. Supreme Court this week. While Netflix does feature A&E's Bates Motel and Starz's Sparticus, few cinephiles would accept such modern substitutes, and OmniQ, the company that told the justices of Netflix's dearth of old motion pictures, says it has a patent-pending technology to cure the problem. But it needs the high court's help.
OmniQ wants the Supreme Court to grant the petition filed by ReDigi, which made a splash an eon ago with an enterprise that created a secondhand marketplace for supposedly "used" iTunes song purchases. ReDigi claimed to be able to move digital files from a user's computer to its servers and then to another user's computer in accordance with the First Sale Doctrine, which allows the owner of a particular copy or phonorecord to sell or otherwise dispose of that copy without copyright liability. The Second Circuit Court of Appeals ruled against ReDigi. According to the ruling that is now being presented to the Supreme Court for scrutiny, ReDigi engaged in nothing more than unauthorized reproduction.
ReDigi declared bankruptcy. Apple just killed iTunes. The issue of whether the First Sale Doctrine has survived the digital age may make for good scholarly articles, but is the Supreme Court really going to devote its limited bandwidth to technology that's already outdated? Few people download songs anymore. Now most everyone streams. Who cares about the right to dispose when the era of personal ownership is seemingly over?
Well, OmniQ does.
In its amicus brief (read here), OmniQ doesn't get into the weeds of how its technology works, though it does say it is the assignee of inventions "that would rival those of ReDigi, and which provide a technologically different manner of shifting a work from one material object to another without reproduction."
For more details about OmniQ's technology, best consult with its patent application.
(Even if the Supreme Court does come to a new understanding of "reproduction" based on how copies of digital files are "fixed" in the transitory process of migration, that doesn't necessarily mean OmniQ has solved all its legal hurdles. For example, OmniQ sought an exemption from the Copyright Office to crack access controls on DVDs only to have the Register of Copyrights agree with opposition thrown up by the Motion Picture Association of America and reject a request for "non-reproductive" space-shifting. Then again, if the high court sides with ReDigi, the Register of Copyrights may later revisit its conclusion that the proposed technology likely results in a reproduction of a copyrighted work.)
Back to the problem as OmniQ sees it.
"As major streaming services become filmmakers in an effort to both compete using 'exclusives' and avoid the need to pay licensing fees, many films do not get a theatrical release open to everyone, or even DVD distribution, before being confined to 'exclusive' availability on a single streaming service," states the amicus brief, which then quotes film critic Leonard Maltin as saying, "Frankly, this is why I’m keeping all my DVDs. And it's a pain in the neck, because they take up space. But I don't trust the cloud. And I don't trust the marketplace to maintain titles that are in some cases obscure or not terribly commercial."
There's now only one Blockbuster in the world, as video rental stores go out of business. And subscribers to Netflix currently get just one Hitchcock film (Strangers on a Train) to enjoy.
So what to do about the millions upon millions of DVDs and downloaded copies of movies that OmniQ says are "gathering dust in warehouses, basements and living room shelves, or taking up needed space on the owner's hard drive"?
OmniQ hopes the solution is reinvigorating the First Sale Doctrine by coming to a conclusion that even in the digital age, there's a real distinction between reproduction and distribution.
Of course, as the major studios increasingly adapt to the streaming era and reorient themselves to licenses over sales of home entertainment, they are likely to see the situation quite differently — a threat to their business as well as a disincentive to make their works digitally available.
It remains to be seen whether the MPAA and content companies file their own amicus briefs opposing a grant in the ReDigi case. They may prefer to remain silent at this point with hopes that ReDigi's petition quietly dies, as so many petitions before the Supreme Court do.
In the meantime, the Supreme Court is now hearing this from OmniQ's attorney John T. Mitchell.
"[T]he public's access to movies is shrinking dramatically," he writes. "While there may be enough movies available to find something worth watching, the breadth of choice in movies was many times higher 20 years ago than it is today."