(Note: Copywronged is a 13 part blog of the backstory behind the 2019 Orphan Works Trial. You have come in the middle of story. Click back to beginning for the FULL story )
Between 2007 and 2011, EDGE Video did very well. Both stores were thriving, each with different clientele, but somehow they worked together. Even though the rest of the world was in financial chaos, EDGE was flourishing. The storefront video rental business peaked in 2008, after which many other video stores took a hard hit. Even the big ones like Hollywood Video, Movie Gallery, and Blockbuster declined rapidly. But I saw opportunity. I wanted to open more storefronts and expand our online presence. The Internet and e-commerce were clearly the future.
While the two stores took most of my attention (and gave me the most headaches), I spent every other waking moment developing online businesses. We had always sold on Amazon Marketplace and eBay, as that was the business model: from buying out stores and flipping the backstock product online to buying multiple new release rental copies and then selling the extras online. But I knew the day was coming when the rental market would be dead. We needed something else. Two of the business ideas we came up with started to gain traction: moviesfromtheEdge.com (a long title, for sure—that was one of my first e-commerce lessons) and replacetvdisc.com.
Let's talk about the origins of both sites, how they both met an untimely demise, and their relevance to the current legal situation:
From the beginning, EDGE Video was promoted as an anti-big-chain store. We had a great team who excelled at customer service and were brimming with movie/video game knowledge. It was designed to be a store for movie lovers and a fun place to hang out. We basically kicked our local competitors' collective asses. That included Movie Gallery, Hannaford, and yes, even Walmart. Really? You might doubt me, but at the time, Hannaford and Walmart both sold physical media (movies), and we sold them cheaper and had a better selection—not just the current dreck put out by Hollywood. I was personally told by some employees of those stores that management wasn't happy with EDGE and said things like, "They must be doing something wrong or illegal."... And that's when the seed was planted.
EDGE had a section in both stores called "Area 51." It was a couple of bays of rare, weird, eclectic, and cult movies. It was very popular and brought in customers looking for such films. Because the Internet was still young, not everyone liked ordering online, so special orders were also a big part of our business. For example, let's say a customer was looking for a movie called Babes in Toyland, a 1986 Christmas movie starring a young Drew Barrymore. They watched it as a kid and couldn't find it anywhere on DVD. They'd come in and have us look it up. The exchange would usually go like this:
CUSTOMER: "I'm looking for an old Christmas movie with Drew Barrymore and the guy from the Bill and Ted movies."
If we didn't know the title off the top of our heads (and many of the "EDGERS" were that good), we would cross-reference the names on IMDB/Amazon/VideoETA.
EDGE: "There's a musical from 1986 called Babes in Toyland."
CUSTOMER: "That's it!!!"
EDGE: "Well, we can order one, but it's out of print and very expensive."
CUSTOMER: "Um, okay, I really want to watch it. How much is it?"
EDGE: "$75."
CUSTOMER: "Geez, well, okay, I really want to watch it for Christmas. I want my kids to see it. Go ahead and order it."
EDGE: "Um, it's only on VHS."
CUSTOMER: "Really? I don't have a VCR anymore. Why can't you get it on DVD?"
(Pause, while EDGE types a little more on the computer.)
EDGE: "We can get one. But it's probably going to be a copy, you know, a bootleg."
CUSTOMER: "Is that illegal?"
The first couple of times this happened, I didn't know what to tell them, but after it happened more and more, I researched it heavily. This is when I discovered fair use, implied license, and orphan works. I asked many lawyers, online and offline, and no one could give me a straight yes or no answer.
So we started ordering them, almost as a customer service. Eventually, we ordered lots of them. It was a very popular service and ended up being one of the reasons for Edge Video's early success. After a couple of years of ordering the same special order movies repeatedly and getting all kinds of different versions of the films, I realized the quality of these products ranged from blank discs with a handwritten Sharpie title to professional-looking DVDs with full artwork. But
they were all unauthorized, non-studio versions.
Not one EDGE Video customer ever complained about the quality or wanted a refund for a special order. They just wanted to watch the movie. And so MoviesfromtheEdge.com was born. The website was always intended as an experiment, and honestly, I liked researching the movies to determine which were potentially orphan works, which weren't on DVD, which were public domain, etc. But as it grew and became "popular," I knew a legal fight might be on the horizon. I always thought it would be a civil case, not a criminal prosecution. I remained very diligent with any potential rightsholder who contacted us to remove their property. In fact, one of the first encounters with a major studio was with a lawyer from Warner Brothers. He sent an email, basically a form letter, to cease and desist selling the movie Ode to Billy Joe on DVD. So I called him up and asked if there was anything else on my site that belonged to Warner. About a week later, he called me back with a list of five or six titles. I said I would remove them immediately and asked what we should do next.
He said, "Nothing. I just want you to remove them. Warner will not pursue anything else. Thank you for calling me and asking me. We send out so many of these notices, and most people and companies just ignore them."
Honestly, I was a bit disappointed. As we got better at making the discs, enhancing the website by producing content, and increasing traffic, my goal was to be contacted by a rightsholder and then turn the exchange into a pitch to distribute their film on DVD. I knew I probably didn't stand a chance with the heavy hitters like Warner or Disney, but maybe some smaller independent filmmaker might go for it.
But that plan never came to fruition and looks like it never will. Let's move on.
When EDGE Video first opened, streaming was still on the horizon, and the day when it would crush every Hollywood business model was just a foreboding nightmare. Our TV on DVD section in Brewer was extremely popular and grew very fast. We started out with one bay and eventually expanded to ten or fifteen. The idea for the website came from an actual need. One of the major problems we encountered was when discs would get broken, lost, or stolen. That would make watching the rest of the season very difficult and result in some unhappy customers. Because we were already doing tons of special orders, we just ordered another season for just one disc.
I said to myself, "Too bad there wasn't a site where you could order just one disc of a season." So we made one. While it took a while for the site to take off, Replacetvdisc.com showed great promise. We were getting referrals from Netflix, although they wouldn't openly admit it. Some of our online customers told us that they had accidentally sent back a disc from their personal box set. They called Netflix, and customer service couldn't send back the personal disc, but they would look up the replacement disc on our site, credit the customer's account for the same amount, and refer them to our site with a link. I thought it was fantastic and had great potential. The best thing happened around 2010 when someone in charge of development from Amazon contacted me and said they wanted to merge our site into Amazon and create a specialized storefront that Amazon would market. That would have turned Replacetvdisc.com into a real property and launched our revenues into the stratosphere. Then 2011 came screaming in, and the Brewer Police Department wasn't far behind.
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