In a previous post, I noted the arbitrariness of copyright law in prohibiting editing a DVD to take out objectionable scenes, when presumably it would be legal to accomplish the same thing by other means–e.g., as I pointed out in a legal forum, by providing instructions to users to use to program a special DVD player that edits out the bad scenes “on the fly” in the user’s home.
Turns out there is such a service: Clear Play (thanks to Tom Woods for the link). You buy one of their DVD players, and load into it “filters” which you can download from the web with a subscription to their service. Amazingly, there was apparently some doubt about the right of consumers to do this, even for private use, so the Family Entertainment and Copyright Act of 2005 was passed last year to amend the Copyright Act to make it clear that it is not a copyright infringement to use technological means (such as ClearPlay’s DVD player and filter service) to skip objectionable material, such as profanity, violence, or other adult material, in the audio/video works that they legally purchased.
Gee, Congress, we’re so grateful, so very grateful, that you are permitting us to fast forward and skip nudity, gore, and profanity, or other scenes we don’t want to show, in our own homes, using our own DVD players. How generous of you. Is it okay if I skip commercials too, please? (Apparently, an earlier version of this bill contained “language that might make users and manufacturers of ad-skipping technology automatically liable for copyright infringement”.)
[From LRC 2006]
Tom, I too (as an IP attorney) find the copyright decision to be somewhat bizarre. In Clean Flicks v. Steven Soderbergh, a “federal district court in Utah held that companies that “sanitize” … motion pictures by removing sex, profanity, and violence, violate the motion picture studios’ copyright.”
The court thought it was an easy case, apparently. So does this law professor, who said “This case was about as straightforward a copyright case as there can be, and the court’s determination is plainly correct”.
As the court wrote:
CleanFlicks first obtains an original copy of the movie from its customer or by its own purchase from an authorized retailer. It then makes a digital copy of the entire movie onto the hard drive of a computer, overcoming such technology as a digital content scrambling protection system in the acquired DVD, that is designed to prevent copying. After using software to make the edits, the company downloads from the computer an edited master copy which is then used to create a new recordable DVDR to be sold to the public, directly or indirectly through a retailer. Thus, the content of the authorized DVD has been changed and the encryption removed. The DVDR bears the CleanFlicks trademark. CleanFlicks makes direct sales and rentals to consumers online through its website requiring the purchaser to buy both the authorized and edited copies. CleanFlicks purchases an authorized copy of each edited copy it rents. CleanFlicks stops selling to any retailer that makes unauthorized copies of an edited movie. … CleanFilms maintains an inventory of the unedited versions of the copies it rents or sells to its members in a one-to-one ratio. [italics added]
Note that CleanFilms buys one copy for every edited (sanitized) copy they rent. It seems to me, therefore, that this is just the digital version of physically removing parts of an analog movie on videotape. For example, suppose CleanFilms bought 1000 VHS tape versions of a movie, and physically removed lengths of tape that had nudity, then spliced it back together. Or, what if they just put white tape over the nudity-section of the film, or “erased” those lenghts of tape, then re-sold the VHS tape. Or what if technology were developed that let them shoot a laser into the DVD and basically just blot out the sections of video that contained nudity? Could it be argued that any of this is is copying or reproducing the movie? If not, why is the digital version of this any different? The fact that copyright law treats them differently shows how arbitrary and unjust it is.