5 ms·

The issue is that they no longer have classic movies available through their DVD services. There are no legal or licensing restrictions there due to the First S

by guyzero 12y ago

The issue is that they no longer have classic movies available through their DVD services. There are no legal or licensing restrictions there due to the First Sale Doctrine.

acdha 12y ago
It's true that first sale prevents the studios from restricting Netflix's usage but it doesn't require them to make new copies for Netflix. If they aren't selling the DVD commercially, as is the case for many classic films, there's no way to legally create a new copy to replace a damaged disc.
- hayksaakian 12y ago
  wouldn't that qualify as legitimate use of a backup copy? if the original is destroyed?
  - MiguelHudnandez 12y ago
    I think that, if they were challenged, they would have to prove that they are only sending out as many backup copies as they have originals. I wouldn't want to endanger my business to licensing lawsuits based on something like that which would be terribly hard to prove.
    - nimblegorilla 12y ago
      That would actually be really easy to prove given their database already tracks the location of DVDs. I'm sure there are other issues at play.
  - dragonwriter 12y ago
    > wouldn't that qualify as legitimate use of a backup copy? The archival copy privilege as an exception to the usual rules that copyright excludes anyone from making copies without specific permission from the copyright holder [1] applies only to works classified as "computer programs" under the law. While DVDs do include computer programs, the main element of a DVD is an audiovisual work and likely wouldn't be included in the exception, so even if it would be a legitimate use of a backup copy, the kind of work isn't one in which there is any right under copyright law to create such a backup. [1] 17 USC Sec. 117(a)
    - nkurz 12y ago
      While I presume your quote is correct, I don't think you are applying it correctly. That is one exception, but there are others. Although I don't think there is clear case law, ripping audio CD's for archival backup is almost universally presumed (even by the MPAA and RIAA) to be legal in the US: https://www.publicknowledge.org/news-blog/blogs/united-states-copyright-office-ripping-illega https://www.publicknowledge.org/news-blog/blogs/united-state... And it's frequently presumed that creating backups of legally owned video DVD's would constitute fair use under US copyright, but is instead illegal because it requires breaking DRM to do so, and the DMCA offers no such exception: http://lifehacker.com/5978326/is-it-legal-to-rip-a-dvd-that-i-own http://lifehacker.com/5978326/is-it-legal-to-rip-a-dvd-that-... But if you happen to come across an unprotected commercial DVD that you legally own (I have only ever come across one, "Cane Toads: An unnatural history") I think you probably would prevail in asserting that it is fair use to create a personal backup copy for use in case the original is destroyed.
  - acdha 12y ago
    Potentially, yes. Would you want to spend the next decade fighting that lawsuit up to the Supreme Court, hoping that the case goes your way? I think the odds would be in their favor but am even more confident that the movie industry would see the threat of an expensive lawsuit as a great lever to extort higher royalties.
- guyzero 12y ago
  Yeah, this could be it. It could also be that Netflix simply isn't trying to replace titles because of reduced demand for the DVD service. Either way, too bad.
  - ghaff 12y ago
    And that, in fact, seems to be the case. I haven't looked at it in depth but at least some of the examples cited by the OP do seem to be available for new purchase from Amazon even though they're not available for DVD rental from Netflix. Given that Netflix has made it quite clear that the DVD rental biz isn't strategic for them, I suspect that they're carefully managing repurchases of seldom-rented back catalog items.
    - jonknee 12y ago
      Available for purchase by rental companies and purchase for retail are two different things. Netflix doesn't typically buy a bunch of DVDs from Amazon and then chuck the jewel case. There are exceptions though: http://articles.latimes.com/2012/jun/07/entertainment/la-et-ct-disney-netflix-20120607 http://articles.latimes.com/2012/jun/07/entertainment/la-et-...
      - ghaff 12y ago
        Right. But the point is they can buy from retail. (And I believe that's how they did it at first.) Today, they just generally choose not to do so primarily because it costs more.
golemotron 12y ago
The situation might be more complicated. If I was a rights holder for movies that Netflix wanted to stream (and sufficiently Machiavellian), I might negotiate reduced availability of DVDs of my movies to start transitioning everything to a streaming model. To be clear, Netflix may have the DVDs but they may be bound by a contract clause (that they agreed to) restricting them from offering the DVDs for rent. That said, maybe it's just Netflix reducing costs by dropping obscure inventory. I don't know what the relative costs and profit are of the streaming vs. DVD businesses that they have, but the costs of that physical inventory are not negligible. Back in the day when Best Buy opened a new store they stocked the CD and DVD sections with incredible amounts of diverse inventory and then let it sell off - restocking only the mainstream stuff. I assume the goal was to get customers with a front-end flourish. That's probably what Netflix did.
robryan 12y ago
Has this ever been tested around digital goods? As long as you had some mechanism to ensure that it is only streamed by one person at a time per license purchased.
- pbreit 12y ago
  Like Aereo, Zediva was shut down and was even playing an actual DVD. http://techland.time.com/2011/08/03/judge-rules-against-remotely-watching-dvds-over-the-internet/ http://techland.time.com/2011/08/03/judge-rules-against-remo...

by guyzero 12y ago

The issue is that they no longer have classic movies available through their DVD services. There are no legal or licensing restrictions there due to the First Sale Doctrine.

acdha 12y ago

It's true that first sale prevents the studios from restricting Netflix's usage but it doesn't require them to make new copies for Netflix. If they aren't selling the DVD commercially, as is the case for many classic films, there's no way to legally create a new copy to replace a damaged disc.

hayksaakian 12y ago
wouldn't that qualify as legitimate use of a backup copy? if the original is destroyed?
- MiguelHudnandez 12y ago
  I think that, if they were challenged, they would have to prove that they are only sending out as many backup copies as they have originals. I wouldn't want to endanger my business to licensing lawsuits based on something like that which would be terribly hard to prove.
  - nimblegorilla 12y ago
    That would actually be really easy to prove given their database already tracks the location of DVDs. I'm sure there are other issues at play.
- dragonwriter 12y ago
  > wouldn't that qualify as legitimate use of a backup copy? The archival copy privilege as an exception to the usual rules that copyright excludes anyone from making copies without specific permission from the copyright holder [1] applies only to works classified as "computer programs" under the law. While DVDs do include computer programs, the main element of a DVD is an audiovisual work and likely wouldn't be included in the exception, so even if it would be a legitimate use of a backup copy, the kind of work isn't one in which there is any right under copyright law to create such a backup. [1] 17 USC Sec. 117(a)
  - nkurz 12y ago
    While I presume your quote is correct, I don't think you are applying it correctly. That is one exception, but there are others. Although I don't think there is clear case law, ripping audio CD's for archival backup is almost universally presumed (even by the MPAA and RIAA) to be legal in the US: https://www.publicknowledge.org/news-blog/blogs/united-states-copyright-office-ripping-illega https://www.publicknowledge.org/news-blog/blogs/united-state... And it's frequently presumed that creating backups of legally owned video DVD's would constitute fair use under US copyright, but is instead illegal because it requires breaking DRM to do so, and the DMCA offers no such exception: http://lifehacker.com/5978326/is-it-legal-to-rip-a-dvd-that-i-own http://lifehacker.com/5978326/is-it-legal-to-rip-a-dvd-that-... But if you happen to come across an unprotected commercial DVD that you legally own (I have only ever come across one, "Cane Toads: An unnatural history") I think you probably would prevail in asserting that it is fair use to create a personal backup copy for use in case the original is destroyed.
- acdha 12y ago
  Potentially, yes. Would you want to spend the next decade fighting that lawsuit up to the Supreme Court, hoping that the case goes your way? I think the odds would be in their favor but am even more confident that the movie industry would see the threat of an expensive lawsuit as a great lever to extort higher royalties.
guyzero 12y ago
Yeah, this could be it. It could also be that Netflix simply isn't trying to replace titles because of reduced demand for the DVD service. Either way, too bad.
- ghaff 12y ago
  And that, in fact, seems to be the case. I haven't looked at it in depth but at least some of the examples cited by the OP do seem to be available for new purchase from Amazon even though they're not available for DVD rental from Netflix. Given that Netflix has made it quite clear that the DVD rental biz isn't strategic for them, I suspect that they're carefully managing repurchases of seldom-rented back catalog items.
  - jonknee 12y ago
    Available for purchase by rental companies and purchase for retail are two different things. Netflix doesn't typically buy a bunch of DVDs from Amazon and then chuck the jewel case. There are exceptions though: http://articles.latimes.com/2012/jun/07/entertainment/la-et-ct-disney-netflix-20120607 http://articles.latimes.com/2012/jun/07/entertainment/la-et-...
    - ghaff 12y ago
      Right. But the point is they can buy from retail. (And I believe that's how they did it at first.) Today, they just generally choose not to do so primarily because it costs more.

golemotron 12y ago

The situation might be more complicated. If I was a rights holder for movies that Netflix wanted to stream (and sufficiently Machiavellian), I might negotiate reduced availability of DVDs of my movies to start transitioning everything to a streaming model. To be clear, Netflix may have the DVDs but they may be bound by a contract clause (that they agreed to) restricting them from offering the DVDs for rent. That said, maybe it's just Netflix reducing costs by dropping obscure inventory. I don't know what the relative costs and profit are of the streaming vs. DVD businesses that they have, but the costs of that physical inventory are not negligible. Back in the day when Best Buy opened a new store they stocked the CD and DVD sections with incredible amounts of diverse inventory and then let it sell off - restocking only the mainstream stuff. I assume the goal was to get customers with a front-end flourish. That's probably what Netflix did.

robryan 12y ago

Has this ever been tested around digital goods? As long as you had some mechanism to ensure that it is only streamed by one person at a time per license purchased.

pbreit 12y ago
Like Aereo, Zediva was shut down and was even playing an actual DVD. http://techland.time.com/2011/08/03/judge-rules-against-remotely-watching-dvds-over-the-internet/ http://techland.time.com/2011/08/03/judge-rules-against-remo...