Steven Soderbergh, Copyright Hypocrite?

The filmmaker takes one approach to intellectual property in court, another in his own work.

David Post notes an odd inconsistency from a famous filmmaker:

Warner Bros.

Actor-director Steven Soderbergh has been getting a great deal of attention recently for posting his newly-edited versions of classic films: Psycho, Raiders of the Lost Ark, and, most recently, 2001: A Space Odyssey. Interesting and creative stuff, indeed. But as Mike Masnick points out over at Techdirt, Soderbergh has been a prominent copyright maximalist, testifying before Congress on behalf of the Director's Guild of America in favor of a harsh "three strikes and you're out" policy for online copyright infringers.

And both more peculiar, and closer to the point here, Soderbergh was the lead plaintiff in the 2006 case of Soderbergh et al v. Clean Flicks of Colorado et al. (433 F.Supp.2d 1236). Clean Flicks (and the other defendants) were in the business of preparing and distributing edited versions designed to be more "family friendly" (i.e. with the nasty stuff edited out) of previously-released motion pictures….The plaintiffs—Soderbergh included—were successful at shutting the operation down, on the grounds that the edited versions prepared by Clean Flicks violated their rights under sec 106(2) of the Copyright Act to create "derivative works" of the films—defined as "works based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

So I guess I don't understand where Soderbergh is coming from here. It's a little odd that he doesn't even mention the underlying copyright question(s) on his website—which he calls a "one-of-a-kind marketplace." Under the Clean Flicks case (which, presumably, he knows about) his activities here are pretty clearly infringing the copyrights in the original films. Is he just a hypocrite, who thinks that he has some kind of "artistic license" to do what he denies to others, that his creativity is somehow more valuable than the creativity of others?

There are differences between what CleanFlicks did and what Soderbergh is doing, starting with the fact that the former was a commercial enterprise while Soderbergh has been posting his edits online for free. But I can't think of any differences that make Soderbergh's edits acceptable under the arguments he endorsed in the CleanFlicks case. (Indeed, I could imagine a copyright enthusiast preferring CleanFlicks' model to Soderbergh's, since CleanFlicks made its revisions only for people who first purchased the DVD and sent it to the company. You needn't buy anything but an Internet connection to see Soderbergh's efforts.)

My guess is that Soderbergh is operating on the it's-better-to-ask-for-forgiveness-than-permission principle. His Heaven's Gate edit begins with the words "I acknowledge that what I have done with this film is both immoral and illegal," and his written intro to his Raiders of the Lost Ark edit says "I'm not saying I'm like, ALLOWED to do this." And he has now taken down his 2001 edit "at the request of Warner Bros. and the Stanley Kubrick estate." Too bad. I was looking forward to seeing what he did with the picture.

The rest of Post's post is here, and the rest of Masnick's post is here. Soderbergh's website is here. My favorite Soderbergh movie is here. The first and longest article I ever wrote about fair use and related IP issues is here.