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Indiana County Drops Case vs. Kiosks

5 Mar, 2010 By: Chris Tribbey

The Vanderburgh County, Ind., prosecuting attorney decided March 5 to drop his case against DVD kiosks, a case in which retailers with Redbox and MovieCube kiosks had been threatened with felony prosecution if they did not remove DVDs rated higher than ‘G’ that could possibly be accessed by minors.

Calling it “a virtual certain not guilty verdict,” Vanderburgh County prosecuting attorney Stanley Levco said he reached his decision after reviewing case law and speaking with members of his community.

“The kiosks have protections in place to restrict access [of objectionable DVDs] to minors, and there was a strong community objection to filing,” he said. “I don’t believe a jury would have convicted.”

Letters from Levco’s office were sent to about a dozen county retailers with DVD kiosks in January, warning them to remove DVDs rated above ‘G,’ or face felony charges under Indiana state law. Levco’s office was prompted to send the letters by the owner of a chain of local video stores.

“The county prosecutor wisely refused to take the bait from competitors,” said attorney Larry Mackey, who is representing both Redbox and MovieCube operator NCR Corp. in Indiana.

Mackey, who is best known for his work as the government prosecutor in the case against Oklahoma City bomber Timothy McVeigh, said both his clients hope other prosecutors countrywide take note of the Vanderburgh County case.

“In the end, Mr. Levco concluded that the parents of his community can best protect their children and that government interference was neither wise nor warranted,” he said.  “Redbox and NCR are very pleased with his decision and the guidance it provides to other prosecutors who may face the same question in their towns and cities.”

Both Redbox and NCR praised the decision.

“Our MovieCube kiosks operate consistent with the law and industry-wide practices for DVD vending kiosks throughout the United States,” said NCR spokesman Jeff Dudash. “It was clear that our position is supported by the public: NCR’s DVD kiosks are affordable, accessible and family-friendly entertainment options for families in Indiana, and our processes provide sufficient restrictions to age-appropriate renting.”

Both Redbox and MovieCube kiosks require a valid credit or debit card, and ask for confirmation of age whenever an ‘R’-rated title is selected.
“Redbox is pleased with the Vanderburgh County prosecutor’s decision to not pursue action against video rental kiosks that would seek to limit consumers’ access to films with a ‘PG-13’ or ‘R’ rating,” a company statement read.

Paul Black, an Evansville, Ind. attorney representing the area video store owner, said he was disappointed with Levco’s decision.

“I appreciate the fact he took a hard look at it,” he said. “A lot of guys wouldn’t have even taken a look. I don’t know where this goes from here.”

Ted Engen, president of the Video Buyers Group (VBG), which represents more than 1,700 independent movie rentailers nationwide and has been vocal in opposing DVD kiosks, said the next step in fighting kiosks and the apparent ability for minors to access inappropriate DVDs will be taken at the state level.

“This is far from over,” he said. “The county attorney was buried with press and attorneys, and he looked at the cost of moving forward. It was very high profile.

“He wasn’t convinced he could get a conviction, and he didn’t think there was enough to move forward. We commend him for taking on the issue.”

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