Copyright’s Other First Amendment Problem

I just noticed a piece by Tom Berg on SSRN entitled Copying for Religious Reasons: A Comment on Principles of Copyright and Religious Freedom. I’m only familiar with the Scientology and “World Church of God” cases, so I look forward to reading this. Berg contemplates a potential “religious exemption” to copyright laws….something Congress may well be in the mood for taking up after Clean Flicks’ loss in district court a few weeks ago.

PS: In her analysis of the case, Marci Hamilton wonders how Clean Flicks “could believe that such a business plan was legal, or likely to be successful.” Even leaving the Family Entertainment and Copyright Act aside, I think they quite justifiably thought of themselves as latter day versions of “video rental businesses,” who seemed to have been vindicated by Sony. Here’s a company founder’s explanation of their approach:

We argued two points to fair use. The first point is that it’s for the good of the people, and we believe that our customers, it’s for the good of them. And then the other point of fair use was there’s no economic impact because every movie that we edit, you have to buy the original. And so it’s not like some guy in a back room somewhere just copying movies like in a black market situation. You had to have the original movie for us to edit it for you, and the ones that we rented out from Clean Flicks, we bought originals for every single one of those, so we kept it with a one-to-one ratio. And we just feel that if you purchase a movie, you should have the right, as a consumer, to bring it to a company like Clean Flicks and have it altered so that you can watch it in the privacy of your own home.

But common sense is no defense in today’s copyright wars!