Joe Gratz writes,
Judge Richard P. Matsch of the United States District Court for the District of Colorado [on] Wednesday filed this opinion granting partial summary judgment in favor of the movie studios, finding that CleanFlicks infringes copyright. This is not a terribly surprising result; CleanFlicks’ business involves selling edited DVD-Rs of Hollywood movies, buying and warehousing one authorized DVD of the movie for each edited copy it sells.
CleanFlicks edited the movies by bleeping out strong language, and removing or obscuring depictions of explicit sex and violence. (Tim Lee also has interesting commentary: 1 2 3.)
The opinion is relatively short, and worth reading if you’re interested in copyright. The judge ruled that CleanFlicks violated the studios’ exclusive rights to make copies of the movies, and to distribute copies to the public. He said that what CleanFlicks did was not fair use.
There are at least four interesting aspects to the opinion.
First, the judge utterly rejected CleanFlicks’s public policy argument. CleanFlicks had argued that public policy should favor allowing its business, because it enables people with different moral standards to watch movies, and it lets people compare the redacted and unredacted versions to decide whether the language, sex, and violence are really necessary to the films. The judge noted that Congress, in debating and passing the Family Movie Act, during the pendency of this lawsuit, had chosen to legalize redaction technologies that didn’t make a new DVD copy, but had not legalized those like CleanFlicks that did make a copy. He said, reasonably, that he did not want to overrule Congress on this policy issue. But he went farther, saying that this public policy argument is “inconsequential to copyright law” (page 7).
Second, the judge ruled that the redacted copies of the movies are not derivative works. His reasoning here strikes me as odd. He says first that the redaction is not a transformative use, because it removes material but doesn’t add anything. He then says that because the redacted version is not transformative, it is not a derivative work (page 11). If it is true in general that redaction does not create a derivative work, this has interesting consequences for commercial-skipping technologies – my understanding is that the main copyright-law objection to commercial-skipping is that it creates an unauthorized derivative work by redacting the commercials.
Third, the judge was unimpressed with CleanFlicks’s argument that it wasn’t reducing the studios’ profits, and was possibly even increasing them by bringing the movie to people who wouldn’t have bought it otherwise. (Recall that for every redacted copy it sold, CleanFlicks bought and warehoused one ordinary studio-issued DVD; so every CleanFlicks sale generated a sale for the studio.) The judge didn’t much engage this economic argument but instead stuck to a moral-rights view that CleanFlicks was injuring the artistic integrity of the films:
The argument [that CleanFlicks has no impact or a positive impact on studio revenues] has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright.
(page 11)
Finally, the judge notes that the studios did not make a DMCA claim, even though CleanFlicks was circumventing the encryption on DVDs into order to enable its editing. (The studios say they could have brought such a claim but chose not to.) Why they chose not to is an interesting question. I think Tim Lee is probably right here: the studios were feeling defensive about the overbreadth of the DMCA, so they didn’t want to generate more conservative opponents of the DMCA by winning this case on DMCA grounds.
There also seems to have been no claim that CleanFlicks fostered infringement by releasing its copies as unencrypted DVDs, when the original studio DVDs had been encrypted with CSS (the standard, laughably weak DVD encryption scheme). The judge takes care to note that CleanFlicks and its co-parties all release their edited DVDs in unencrypted form, but his ruling doesn’t seem to rely on this fact. Presumably the studios chose not to make this argument either, perhaps for reasons similar to their DMCA non-claim.
In theory CleanFlicks can appeal this decision, but my guess is that they’ll run out of money and fold before any appeal can happen.
Hollywood is losing money because I will not watch all their new movies anymore. good bye scummy hollywood. I’m going back to strictly watching old B&W movies!
ClearPlay is not our only choice. As I mentioned in my posting on July 26th, TVGuardian is another alternative to blocking out objectionable movie content. Both filtering methods have their pros and their cons. Let me briefly explain.
TVGuardian screens out bad language from some closed-captioned DVD’s, pre-recorded video tapes, and TV shows. To use TVGuardian’s service, all you need is one of their machines; there is no subscription fee.
The down side of TVG is that it will not work on DVD’s, pre-recorded tapes or TV programs that are not closed-captioned. And even some of the ones that are, TVG may still miss a bad word here or there, depending on how well the program was captioned. But TVG’s biggest weakness is that it does not remove objectionable visuals (sex scenes, excessive violence). They remain intact.
ClearPlay goes further than TVGuardian in screening movie content. It does not depend on closed-captioning to “clean up” a film. It can be programmed to remove ALL foul language as well as disturbing visuals from movies as if they were never there.
On the flip side, ClearPlay machines do not work on video tapes or on TV programs–ONLY on DVD’s that ClearPlay has made specific filters for. To get ClearPlay’s ever-growing list of filters, you must have a subscription to its service. At present, the cost is $79.00 annually.
If you can live with the pros and cons of TVGuardian and ClearPlay, I would suggest that you get both filtering services. They work fine for me.
I’m just glad that ClearPlay http://www.ClearPlayDVD.com is around. Until somebody can come up with a competing product, it’s our only choice.
“And we all know the studios don’t want us to see cleaned up movies.” Well, I do not necessarily concur with that. Hollywood, like most businesses, is in existense to make money. Since most moviegoers have such a high tolerance for sex, violence and profanity, Hollywood is only too happy to give them what they want. On the other hand, if most people who went to movies preferred the more Puritan approach to films, then all you would ever see on the shelves of your local video store would be videos of “The Care Bears” and “My Little Pony” and “Flipper”.
The demise of CleanFlicks is tragic. Only time will tell if it, and other such movie-content-filtering companies, will rise from the ashes. In the mean time, there are still ways we can enjoy movies at home without compromising our values. Do your homework and find out how.
And we all know the studios don’t want us to see cleaned up movies. If they did, there would have been no need for CleanFlicks and Clean Films.
Pardon my misspellings. That’s DiCaprio. And Richard P. Matsch is a dishonorable honorable.
If Clean Flicks were paying royalties back to the studios, there should have beeb bo problem with what they were doing. I believe all of us who are Christians should contact their U. S. senators to see wha can be done to have Richieboy impeached, which is what I intend to do. The Constitution does give me the right to see “Titanic” without seeing SiCaprio/Winslet & co. in their birthday suits and hving sex.
Gosh. I guess the next step for Hollywood to naturally take would be outlawing my volume and fast-forward buttons…
Leave my buttons alone! (
It’s not surprising that MGM, Sony and the “Studios” received a ruling in their favor. What IS surprising is that they felt the need to initiate litigation against the one percent who were purchasing and renting DVD’s legally through CleanFlicks. The “Studios” know that their movies without the sex, violence, and profanity would have been inherently better but would not have the public draw at the box office. The ruling has nothing to do with art or freedom of expression. It’s about power. The “Studios” had the power, CleanFlicks didn’t. Duh. Are we supposed to be impressed? It wasn’t enough to be high industry movie producers. They had to stomp out a mom and pop operation. Thanks CleanFlicks for the movies that my family has enjoyed! And to the “Studios”…you’ve missed out.
First, I want to apologize to Underwrap for calling him/her Undercut. Sorry.
Neo, I see you and I will have to agree to disagree. I do not impose my views on anyone. As free moral agents, we are all free to do what we want to do. However, our choices may come with dire circumstances. For instances, a smoker is free to indulge in his habit, although it may result in his contracting cancer down the road.
Some people are willing to accept just about any film that Hollywood decides to make, no matter how crass that film might be. They don’t need the services of companies like CleanFlicks. On the other hand, there are those of us who welcome the idea of a movie-filtering company that can remove elements of a film that we find distasteful. Just because we view certain parts of a film as offensive does not mean we are forcing or imposing our tastes on others. We are all free to choose what we want to do.
“Does the fact that they were consenting people in this act of infidelity make what they did proper? Of course not!”
Nothing was improper about the sex in this hypothetical scenario. If, on the other hand, she’d promised not to sleep with other men, but did so anyway, then she’s guilty of breaking a promise, and that is improper.
Of course, none of yours and her choices are binding on the milkman … or on some other couple halfway across the world. Maybe that couple likes to share…
Anyway I don’t take issue with people having their own preferences, or wanting promises of exclusivity from potential partners, etc. — only with them wishing to impose those views on the whole world, as implied when they claim any other way is “improper” or worse.
Coming from an independent filmmaking background, I find it laughable that some posts refer to Hollywood as “artists”. Hollywood is in the business of making money, plain and simple. Are we really trying to say that by taking the F-word out of a Owen Wilson film that we are censoring art? Come on people. The studio got paid for every dollar, a few more people were able to enjoy some films and yet somebody has to cry to the courts. Cleanflicks was not forcing their beliefs on anyone else, they bought a copy, took out a swear word or two, resold it to someone who was looking for exactly that. I find it surprising that someone would have a problem with that…
Neo,
Who defines the “proper use of sex”? To you it is between consenting individuals. To others it is soley between spouses. The fact is peoples views differ. The problem is that people have a hard time seeing that. I quote what was said
“Obviously, your perception of normal conduct differs from mine. My married friends and I are true to our mates. We do not use foul language and we do not abuse alcohol and narcotics. I suppose in your eyes, WE are not normal. If that is the case, so be it.”
Where in that paragraph does it say that it is the only valid preference a person can have. On the contrary it seems understanding that you don’t agree.
There are many people that don’t believe that things considered by them to be foul should be viewed. I do not see the problem of creating a way, mind you a legal way (clearplay, etc.) of removing things considered to be foul from the home.
I am sad to see that Hollywood wants to shut down these things. They lobbied against the act the made technologies like clearplay legal. I also don’t understand why they would want to do this since it does, in the end generate more revenue for them.
I also don’t understand why having a 3rd party (cleanflicks) edit a film that you own would be creating an illegal copy when if you were to do it yourself it would be legal. If it is not legal to do it yourself, then that is an entirely different matter.
“The `proper use of sex` is however the consenting people want to use it.” Do you really believe that? In an effort to avoid offending you, I will put myself in the following illustration. I come home from work one day and find my wife in bed with the milkman. Does the fact that they were consenting people in this act of infidelity make what they did proper? Of course not!
It is not surprising that you and I do not agree on the proper use of sex because we are not guided by the same standards of morality. As a Christian, my preferances in life are indeed narrow. My beliefs prohibit me from doing a lot of things that many people would view as proper conduct. For example, I do not steal from my fellow man for ANY reason, even if it meant putting more food on the table for my 6 hungry children; I will not lie down with my neighbor’s wife; and I will not retaliate against him if he does something to offend me. You are correct; my preferences regarding sex and other matters are extremely restricted. However, I would not have it any other way.
The “proper use of sex” is however the consenting people want to use it. I don’t disagree that people should have the choice not to view material they don’t want to view, or hear material they don’t want to hear. I do disagree with claims that your narrow preferences regarding sex are the only valid preferences a person can have.
Undercut, I can empathize with you over the demise of CleanFlicks. However, if you are considering a crusade to have it put back in business, you might have a long and difficult uphill battle. Unlike you and me, the vast majority of DVD consumers either enjoy or don’t mind it if the films they watch are laced with profanity, sex and excessive violence. Hollywood is well aware of what most of its customers want to see and hear in its movies. So the movie industry will continue to add what you and I would consider offensive content to its films.
It took years before Hollywood succeeded in putting CleanFlicks out of business. It could take several more years to get the courts to reverse its decision that CleanFlicks violated copyright laws. Of course, that may never happen. The best thing for you to do at the moment is to look for alternative movie-content filtering. As I said before, your best bet would be to go with ClearPlay or TVGuardian. I use both.
As a parent myself, I think that parents have a pretty good sense for what each particular child can handle. There have been adult things that I didn’t want a child of mine to see, because I thought those things would be too intense or troubling for the child, based on my understanding of the child’s emotional and intellectual development.
Some of the things I wanted to withhold were sexual, but most were not. People do all kinds of complicated and nasty things to each other, and I don’t think a child should have to learn about all of them right away. For example, a depiction of suicide might be too intense for a child, if the child’s friend had just lost a close family member to suicide.
Underwrap,
Congress passed the Family Movie Act to legalize a related technology that plays standard DVDs but skips the adult scenes. Congress could legalize the CleanFlicks model too.
I’m so glad to see that there are others like me who respect morality and virtues and who are not close relatives to the chimpanzee.
Does anyone know what we can legally do to change the laws and promote the freedom CleanFlicks provided in movie watching? Is this something that we can approach Congress about? Are there any grass roots movements that we can support? Any websites of groups that are trying to make a change? (Yes, I know all about Clear Play, etc., but I’m talking about getting to the root of the problem before those in Hollywood find some way to take these other businesses away from us.) It’s just amazing to me to find that those who so strongly support “freedom of choice” and “freedom of speech” and “freedom of artistic license” don’t allow us to choose, speak, or appreciate art in the way we choose.
I just want to make sure we are on the same page. My point was that the proper use of sex should be a private matter between a husband and his wife–not something to be cheapened and degraded by splashing it on a movie screen for a vicarious thrill. As has been expressed by many in this column, some people do not want to sit through movie content that they find offensive. With the assistance from companies like CleanFlicks, they did not have to. If you prefer to watch movies while leaving all the profanity, sex scenes, and over-the-top violence intact, go ahead. No one will stop you.
Obviously, your perception of normal conduct differs from mine. My married friends and I are true to our mates. We do not use foul language and we do not abuse alcohol and narcotics. I suppose in your eyes, WE are not normal. If that is the case, so be it.
“However, Hollywood exploits sex and makes it a subject of lewed entertainment rather than viewing it as a private expression of love and affection between a committed married couple.”
So? Sex can be all those things. So long as nobody gets hurt, and everyone consents, there’s nothing wrong with that, either.
“Hollywood portrays such lifestyles as normal human conduct.”
Newsflash: those lifestyles ARE normal human conduct. Normal chimpanzee and bonobo conduct, too — our two closest relatives. No surprise there.
“sex and other negative behavior”
Sex isn’t negative behavior.
I agree that sex is a normal part of human biology. (So is going to the bathroom.) However, Hollywood exploits sex and makes it a subject of lewed entertainment rather than viewing it as a private expression of love and affection between a committed married couple. But then, what does Hollywood know about what is decent? Now more than ever is the movie industry spewing out films where its foul-mouthed actors are involved in immoral lifestyles such as homosexuality, adultry and the misuse of drugs and alcohol. Hollywood portrays such lifestyles as normal human conduct.
Many moviegoers are turned off by the misuse of sex and other negative behavior in movies; CleanFlicks provided a service that gave them the freedom to see films they enjoyed without having to be exposed to content that they found offensive. Such a service will truly be missed.
BTW, violence can get people killed. So does sex when it is used improperly. I’m sure you’ve heard of AIDS.
Or, we could take the sensible but radical route of maturing, as a society, about sexuality and vocabulary, and realising that sex is a normal aspect of human biology, and depictions of it don’t harm anyone. Then only violence is an issue, as it should be. Violence gets people killed; sex gets people born. One is bad; the other good. 🙂
Diane, I agree with you 110%. (Is that possible?) The driving force behind the motion picture industry is the big “M”. Not morality, but money. Most of the movies in the theater circuit today have a PG-13 or R rating because that’s what most moviegoers want. That spells big bucks at the box office.
Let’s face it, shall we? Hollywood, for the most part, cares very little for families. For instance, a number of years ago, before the musical “Annie” was released in the theaters, it originally had a G rating. But the producers later feared that the film needed a broader audience; so they inserted profanity in Carol Burnette’s lines. That was enough to get the film a PG rating. So much for family values.
Although CleanFlicks and other such companies have been forced to shut down, all is not lost. Not by a long shot. TVGuardian-enabled VHS/DVD players can be configured to take out profanity from a number of movies that you already own or rent from your neighborhood video store. If a particular video or DVD contains closed captioning, there is a good chance that TVGuardian can eliminate most, if not all, of the bad language. However, it will not remove objectionable visuals. But it is better than nothing.
ClearPlay-enabled DVD machines, on the other hand, can be programmed to do more than just mute foul language. They can also cut out sex scenes and graphic violence. With this filtering technology, you would not mind playing such films as “A Few Good Men” or “The Blues Brothers” for the smallest of children.
I suggest that you go to ClearPlay and TVGuardian’s websites and get more information on their products. You may find, as I did, that family movie night is still alive and well.
I am gravely disappointed that Cleanflicks and other companies have lost the fight to be able to edit profanity, nudity, and other objectionable material out of movies. I realize that swearing, nudity, or other elements that would cause a movie to have a rating other than a G rating do not offend everyone. We as a family, however, intently try to avoid watching movies that contain these types of content.
The proponents of closing down Cleanflicks and other similar companies state that this type of editing compromises their artistic integrity and rights. The reality is that if no one wanted to watch movies that contained these elements, producers and directors would change their content in a snap. This isn’t a single piece of art that an individual will purchase and exhibit in the location of their choosing. This is art for the masses. Designed to sell to the largest market available. And while I understand that these elements can make a movie more intriguing for many viewers, these are things my husband and I want to avoid watching in our own home. While I understand that directors and producers want to have artistic rights, what about the rights of consumers to have enjoyable entertainment without specific elements?
It’s a little like wanting to purchase a pizza to bring home for dinner and having the chef insist that every topping is necessary for the end product. What if I don’t like olives or peppers or onions? Does the pizza have no value because certain elements are not ordered? Why can’t I pick and choose a place to get my movies that will remove specific ingredients that I personally find distasteful?
The thing I find ironic is that, it is not even as if Hollywood or the directors are losing money by these companies being open. The truth is we have rented far more movies in the past six months alone from CleanFlicks than we had rented in the last few years. It has been such a relief not to have to worry about certain content we avoid. The end result for us is that now that this ruling has been passed, we will spend much less money on movie viewing as we remain committed to keeping this content out of our home. This ruling will easily save us hundreds of dollars in the upcoming year alone, by not being able to rent the versions of movies that we would be comfortable with.
I just think it is sad that in these companies’ and directors’ quest to preserve copyrights, they are willing to crush the individual rights of consumers to purchase and rent movies they would be comfortable with their families watching.
Although I was never a consumer of CleanFlicks, I salute their efforts to provide a product for people who are sick and tired of all the garbage that constantly shows up in otherwise good films. As was stated earlier, you can no longer depend on family-oriented Disney to always come up with wholesome programming for the whole family to enjoy. (Are you aware that R-rated “Crimson Tide” is a Disney production?) I am no expert in the laws of copyright violations. All I know is that a company that made home movie night fun again for the whole family has been unfairly silenced. Thank goodness ClearPlay is still in business.
This argument is pathetic. If you buy a piece of art it is yours to do whatever with UNLESS you plan to make a “profit” on it by making “illegal” copies of it. If I bought a painting and thought it was stupid then I have the right to say draw a mustach or black out the teeth of anyone inthe painting I want. I do not support cleanflix but I think our right of Fairuse is being destroyed by this ruling. I have no clue why movie makers want to get rid of things like cleanflix when they air edited movies on television all the time! Double standard if you ask me.
Dennis McDonald (July 13th comment) sums up the “hollywood” argument perfectly. He states, “But don’t prevent me from watching what I want…” (he’s refering to the original DVDs). My question to hollywood and Dennis is – who is preventing you from watching the “original artistic intent”? Go to Blockbuster and rent the movie – nudity, language and all. If it makes you feel wonderful to fill your mind with indecency, do it. However STOP insisting that you have the right to watch this junk and I DON’T have the right to watch a movie without it. Yes, we subscribed to CleanFlicks, and Yes, my kids were able to watch more “adult” movies with us, and Yes, we will not be watching movies like we used to. We paid more each month in movie rentals to support the original work and the edited version ($10 more per month than Netflix). We weren’t tricked into watching a movie that we thought would have the nude scene in it only to be shocked and disappointed that it wasn’t in there! We paid extra to not see it!! Hollywood and people like Dennis make it sound like CleanFlicks is editing every movie out there and no one will be able to watch the true artistic original movie. How do they get off making that arguement? Why does the judge think people will loose sight of the original? For each movie we purchased from CleanFlicks, we have the original copy right beside it. We OWN the original movie. So Dennis (and anyone else that agrees with his point), if you come to visit my house, when the kids go to bed, you can still watch the original. They are not gone. They are not becoming extinct. They are still available to the masses. But thankfully for the few movies that we own, the originals will not be watched by our family. FREEDOM AND RIGHTS SHOULD GO BOTH WAYS. Thank you judge for taking away my freedom!
BTW – Has it occured to anyone else that Walmart sells edited CD’s. I see that Amazon also carries them, but I haven’t been able to find them in many other places. I guess it is a lot harder to edit a DVD than a CD 😉
Some of the people who agree with this decision seem to be convinced, or at least willing to believe, that most any movie studio might have any
credibility as artists. These studios don’t care about art, as a whole, they care about stabilizing and increasing their profits. If the souless, blood sucking hollywood big-wigs cared about art, I hardly think that movies would resemble anything that is in theaters today.
For someone that might argue that this issue has anything to do with software copyright infringement, you are comparing apples to oranges. Software is generally interactive product, that is to say generally the software performs a function or intentionally allows you to manipulate either the software itself or another digital medium. I fully agree that software infringment is hurtful to the author and should be regulated. Generally, though, software is sold on license basis. If Jonny Customer wants to use software X on 15 PCs, well he is going to have to purchase 15 licenses, if he wants to do that legally. If Johnny Customer only buys 1 license and uses the software on 15 PCs, that is illegal, prosecute Johnny Customer if you are the softwares author. Now if wants to edit the software so that his employees cannot use it for personal use or in a way that would detract from company time, but you as the author of the software aren’t willing to make such a modification, would it hurt the author? Not at all, especially since you have made clear that you won’t make such a modification. As long as the author is making his per license fee, he makes money and can continue to make quality software, just obviously not the kind that a certain clientel demands. It makes no sense monitarily to hinder the sales of your software because you REFUSE to modify your product to meet the demands of a given client base.
Hollywood and the entertainment industry are so fixated on “stopping” copyright enfringement that they only continue to prove that they care nothing about the quality of their product or a percentage of their potential client base. Personally, I would love to see everyone boycott the entertainment industry. Then when they don’t have their noses so high in the air, because they aren’t making such obscene amounts of money (that they don’t rightly deserve or earn – but only make it by playing to the clamoring masses who demand overpriced and underqualified entertainment and will purchase said products without a second thought) perhaps they will be forced to use reason and understanding rather than manipulating the legal system to their greedy and underhanded goals.
(yes, I will get off my soap box now 🙂 )
-Mjollnir
The fact that 90% of Hollywood movies are crap doesn’t invalidate the general point. As Sturgeon stated, 90% of everything is crap. But should the true artists be denied the ability to present only their true vision just because most people aren’t producing anything worthwhile?
My medium is software. I look at it as a form of art sometimes, although maybe that’s just because I can’t draw, compose music, or write fiction. If it were possible for another company to come along and start altering and reselling the products I’ve worked on, this would annoy me greatly. It would also be detrimental to the customer in many ways. People who bought the imitation product will be getting something that’s less reliable and from a company that can’t support them very well. People who bought the real product will be getting an inferior product because my company has to spend effort disclaiming the imitation product instead of doing more productive things.
I once had somebody produce a Chinese translation of one of my programs. I discovered this on a Chinese forum where it was being offered for download. I was kind of annoyed but it did no great harm since it was presented as a package to be downloaded and added into my product, rather than a replacement. If the customer wants to play with his own stuff then that’s fine with me, but if the forum had been distributing the entire package including the translation then I think that would have been unacceptable for the reasons I stated above, although I doubt I could get such a thing removed.
In determining the desirability of a particular bit of copyright policy it always helps to consider the overall goal. The overall goal in the US Constitution is to promote the useful arts and sciences. You might not agree with that goal, which is perfectly fine, but I think it’s the right one. If I had to worry about legal modifications to my product, I would probably be making fewer and worse things. Whether this applies globally is up for debate, but in my opinion it does.
Devonavar makes an interesting point. Let me extend his argument. The vision of the artist should be clear and holistic and result in a work that is more compelling than a redacted work. I think that Hollywood industry ‘artists’ are kidding themselves if they believe that what is sold is a clear and holistic artistic vision. Whose vision? Who is the artist? Why do Director’s cuts exist then? In Spy Kids why is there a line “Your poop is being flushed”? Apparently there is a requirement for two scatalogical references in order to secure the coveted PG. Is that part of the artistic vision? Whose? Is that line essential to anyone’s enjoyment of that movie? If you were editing the film and had to pay for every second would you put it in or leave it on the floor? And if everyone votes to put it in…then why always two? WHy not three scatalogical references. Let’s recognize that the artistic vision is $ and a PG rating is worth more than a G. But Hollywood doesn’t have enough creative types to challenge the model to understand that is wrong. See a G movie lately that moved you like Shakespeare does? How about when the chicks die in March of the Penguins. If we had artists producing movies we wouldn’t have this discussion.
I have seen 50 or so of Cleanflicks films. HOwever they didn’t do anything that I couldn’t do myself. I copied a VHS tape of MOnty Python’s search for the Holy Grail so that my children could watch the funny, rather than the naughty parts, though clearly Castle Anthrax is both. The technology to do this yourself with a DVD is too simple.
And as far as the DMCA discussion. Is there anyone over the age of 10 in the world who can’t easily and cheapily copy every DVD on the market. The more interesting point is that you would not use CleanFlix to make your illegal copies since they put their films on single layer DVD. Just rent from Netflix (or Hollywood Video) and make all the copies your little heart desires. The genie is out of the bottle and he’s not going back in.
I am very happy with clean flicks. We ordered a lot of movies that we love and did not recieve half of them. The least clean flicks can do is send me the rest of my orders.
Thank you. Daile Varney
“But don’t prevent me from watching what I want — and don’t forcibly steal a copyright owner’s intellectual property because you can’t control what your kids watch!”
Forcibly?
Ironically, the people who call copyright infringement “stealing” are applying their own “moral version of the world” to a statutory infringement. Legally no, copyright infringement has nothing to do with “stealing.” Any more than speeding, trespassing, libel or slander.
People just call it “stealing” in hopes that you will incorrectly apply your morals about theft and property, and support more concrete and permanent copyright laws then what were laid down in the constitution. I believe that “intellectual property” is a similar ploy: copyrighted material is not like physical property, but some copyright holders would benefit if it was.
Xcott
“What is the difference between skipping commercials and skipping profanity and why is one a derivative and the other not?”
There’s a big advertising lobby, but there isn’t a big profanity lobby; just the ACLU?
Of course, this is also why redacting commercials is illegal derivation but adding them in the first place isn’t.
The last few posters make a good point – stop watching the movies and boycott them if you don’t feel they support your moral version of the world!
This is the same answer I give to those who want to censor what I want to watch on TV — if you don’t want your kids watching things you don’t agree with, DON’T LET THEM WATCH IT!
But don’t prevent me from watching what I want — and don’t forcibly steal a copyright owner’s intellectual property because you can’t control what your kids watch!
Time to boycott Hollywood. Their market is going straight down the sewer along with their movie plots. I got rid of the TV about a year ago when I saw that even the Disney channel was full of trash (Linsey Lohan dancing around half-dressed). MTV not only runs MTV, but 10 other cable channels. The whole family has been happier and we spend so much more time together. We even get enough sleep now. I don’t miss it one bit. Take my advise, boycott Hollywood and be happy.
My teen now gets to watch all the movies she wants thanks to Clean Flicks. I am sure I am not the only one who uses their service. Most of my church does. We will be out of luck if we do not get to count on Clean Flicks any longer. That was the only way we as a family get to sit down and enjoy any movie. That is not a cartoon. I wish that judge would have thought about that before he ruled. The studio did get the money once for each copy. What Clean Flicks does with their copy should not matter. I guess we will give up movies altogether and just take a walk.
Neo: The comment processing software has flukes. I’m occasionally getting “you can post only every 15 secs” on my first comment.
Murrel: One can argue that commercials are not part of the artistic work.
Forgive me for sticking my nose into a legal discussion, IANAL … but being from the area of mathematics we often note from topology that two systems are equivalent if there is a transformation that retains the initial attributes. For example, a rubber band and donut are equivalent even if the rubber band is stretched and twisted.
Since the ClearFlicks process results in the same final product that I as an owner of a CD can legally produce on my own, I fail to understand how the transformation by ClearFlicks is any different from what I legally decide to do to my own purchased copy. Since I must purchase a copy of the CD before ClearFlicks will exchange it for me, the final transformation is the same product and ClearFlicks is only acting as my agent in making that transformation.
Note, because the transformation results in the exact form that I can already do for myself, it is not the same as the above example of using it as a Donald Duck vehicle for those changes have not already been shown to be something which a user may do for himself. ClearFlicks is indeed transforming the CD as the customer at the end of the day still has only one CD, albeit the modified CD.
I also suspect that Judge Richard Posner would be mighty disappointed if he were told that such modifications don’t produce a derivative work, since he used that as the basis of his decision regarding commercial skipping this past year. He stated commercial skipping “amounted to creating an unauthorized derivative work”.
What is the difference between skipping commercials and skipping profanity and why is one a derivative and the other not?
Devonavar:
There’s a bit of a misunderstanding here; when I said I didn’t know if I agreed with all of the judge’s reasons, that’s exactly what I meant. In other words, I didn’t read them thoroughly and have a difficult time understanding any legal language, so I simply do not know whether I agree or not.
I think our main difference is that I agree with classical copyright (limited monopoly, no evil things like the DMCA, lifetime + 75 extensions, etc.). It is sometimes illogical and sometimes unenforceable, but overall I think it provides a good balance between authors and the public.
You are correct that derivative parodies are legal, but other derivatives are not. This is because parodies are almost impossible to make without creating a derivative work, and we think that parodies are valuable enough that they should nevertheless be allowed. Other forms are not so limited.
It’s difficult to make a parody of Mickey Mouse without making something that derives from Disney’s work. But I can make a straightforward story about a bunch of humorous talking animals that’s directed towards children without being derivative, if I want to.
Obviously you can’t make a censored version of a movie without being derivative. But the law says, and I agree, that censored versions are not something we want to protect. Unlike parodies, they get no exemption.
Allowing the sale of derivative works so long as it does not cost sales comes very close to statutory licensing. If I’ve created something then I believe I should be able to determine how it is sold, with exceptions made for resales of the same copy, but not how it is used.
To take an extreme example: let’s say I write a really great but obscure story that I sell for ten cents a copy electronically. Disney decides that they can make a huge bundle of money by using this story as the basis of a movie to revitalize their Donald Duck franchise. So they take my story and turn it into a screenplay, then animate the movie. To cover anticipated sales, they spend $1 million to buy ten million copies of my story, meaning they can sell ten million copies of the movie before they even have to talk to me. So at the end of the day, I’m $1 million richer, but Disney is selling a movie version of my story without my permission containing Donald Duck whom I hate, and they never even so much as talked to me.
If you really follow it to extremes, I could have a story that I give away for free, and the megacorp just downloads it a billion times and never has to talk to me again, even while making millions from my work.
Obviously this is a very different sort of situation, but it’s the same basic principle. You could have a law which allows one but not the other, but I hope that gives you an idea of why I think this sort of thing is wrong.
The motion for summary judgement & CleanFilms’ response to the motion make for interesting reading; the documents lay out the arguments of both sides in s fairly clear & organized fashion. They can be downloaded from:
http://www.cleanfilms.com/legal.phtml
& Thanks to Joe for posting the court’s opinion, which i’ve been unable to find elsewhere…
Legally, I think the fundamental problem for CleanFlix is that there was no legally-recognized right for a company to space-shift a copyrighted work and then sell the space-shifted version. Indeed, it’s unclear that a person even has the right to hire someone else to space-shift a work for him (e.g. though it would be legal for someone to transfer legally-owned copies of movies from film to video for personal use, I know of no commercial film transfer services that would perform such a job).
What would have been interesting–though the technology probably would have been too expensive for CleanFlix to be able to do this–would have been to use a very precise high-powered laser to render unreadable the objectionable parts of a disk. The behavior of players encountering such sections is not entirely predictable, but I would expect that properly placed damage could manage to make most players skip the necessary bits.
BTW, a number of disks like Terminator 2 already allow the viewer to select among different edited versions of a film. There would be no particular difficulty with studios doing likewise.
Michael Ash:
I am aware of how copyright works, and I have already agreed that, as the law is written CleanFlicks is illegal.
What gets me is that fact that you *agree* with the ruling. I guess part of my problem is that I find copyright contradictory, as you pointed out. I am perfectly aware that reselling ripped MP3s is illegal. What I am trying to get at is that it *shouldn’t* be illegal if the original CD is destroyed. Copyright is too broad in this respect; it is meant to prevent multiple copies from entering the marketplace, not restrict how a work can be transformed.
To answer your question about a new Mickey Mouse movie, I would answer yes, you should be allowed to make it. Authors should not have exclusive rights to the characters they create or specific parts of the works they produce. In fact, under US law they *don’t*; derivitive works for the purpose of a parody is legal. I don’t see why other reimaginings (including censorship) should be any different. The only requirement should be that the altered versions should not be represented as the original work.
I must admit that I am a little puzzled by your response. You stated that, while you agreed with the ruling, you disagreed with the reasons. As an argument, you provided your opinion of what the law should protect, i.e. it should prevent others from reselling derivitive works. I expressed disagreement with your opinion, and provided my own reasons why. But your response is to quote the law to me. Given that you said you disagreed with the reasons for the judge’s decision, it seemed to me that you disagreed with the law, if not the decision. Am I wrong about this? I am looking for an argument that selling derivitive works is wrong, not that it is illegal.
Devonavar:
My argument is no more self-contradictory than copyright itself. Consider the following:
I buy a CD and resell it. This is legal.
I buy a CD and rip it to MP3s. This is legal.
I buy a CD, rip it to MP3s, and sell the MP3s. This is illegal.
You can resell, you can shift formats, but you cannot resell the shifted format.
Let’s say that I decided to make a new Mickey Mouse movie without the permission of Disney. Should I be allowed to do this, as long as I use only clips from real Disney movies, and I buy one copy of each Disney movie I used for each copy I sell?
Censoring movies when you own a copy falls under fair use. Selling censored copies of such a movie does not, unless you’re selling the original media that has been altered. (Consider selling a book that’s been redacted, compared to selling a copy of the book, with the original book warehoused.)
I think a lot of confusion in copyright comes from this concept that when you buy a copy of a work, you now own a very nebulous and ill-defined “license” to that work, which follows you around like some kind of legal shadow until you resell that copy. But that’s not how it works. When you buy a DVD, you own that DVD. There are no licenses involved. It’s yours, just like anything else. What you do not own is the copyright, which is the right to make copies which do not fall under fair use. So you can do whatever you want with your DVD so long as you do not breach that copyright.
In the end, that’s what this case comes down to. The company was making unauthorized (altered) copies and reselling them, and the court determined (correctly, in my eyes) that warehousing the original was not sufficient to make such an action fall outside of copyright.
The difference I see with commercials is that the copyright owners are different from the movie copyright owners. Neither makes a claim to own the other, nor does the network gain copyright over the commercials and the movie. So, I elect to record the movie, but not commercials.
There is no rule that I must record commercials, when I am not recording the movie so why would the reverse not also be true?
I’m intrigued by the possible applications to the concept of “commercial skipping”. Right now, any video editor will let you mark and delete commercials, and many will even find and mark them for you. We’ve always thought that creating our own commercial-less recordings (i.e, of TV shows) for later viewing was considered a fair use right. Now we may not be allowed to do that. In fact, if taken to the extreme, it will be illegal to get up for a kitchen or bathroom break while a commercial is running…
Dennis D. McDonald suggests that any advertisement of a the title of a bowdlerized edition of a movie is infringing. I’d argue that the use is at least partly nominative; if someone wants to buy the movie without the naughty bits, how are they to identify it? Nominative uses, even for comparison (e.g., “FooCo Ibuprofen contains the same active ingredient as Advil® and Motrin®”) have generally been considered fair.
The arguments that people might be confused that this is the original work intrigue me. Firstly, people have to go out of their way to rent/buy a CleanFlicks video, and secondly it is marked as such — the video has a large logo on the front (and is obviously not in the original packaging), and, peridodically while viewing the video, you will see a CleanFlicks logo in the lower left-hand corner. [Which, trivially, is a transformation in my mind.]
If said people had wanted the work as the artist had produced it, they would have obtained said work, instead of a purposefully modified copy.
What do you think of it when a cable station or airline modifies a movie to suit their audience? Is it the same or different than this case?
I’m happy with the decision and the fact that the “fair use” argument was rejected. My main reaction, though, is based on a moral rights consideration. The works being distributed by ClearPlay were NOT the works that the artists created. For example, a censored verison of “Seed of Chucky” is not ‘Seed of Chucky” and I would think the copyright owners should resist any advertising of that title in connection with the renting of the censored version.
Now it’s “moderating” my messages even if they don’t contain links. Am I now on some kind of black list?
“The decision might well have been different if they had figured out a way to scratch out the bits of offensive scenes *on the original disk*. Then it would match your hypothetical.”
Maybe we need a copyright equivalent of the “end to end principle”: if from the outside of the “black box” you cannot prove infringement is taking place, then it isn’t infringement.
In this case, making a modified copy and sequestering/destroying the original inside your black box, or actually modifying the original, leads to the same visible inputs and outputs: unaltered disks in, altered ones out.
First Sale would then apply, because the implementation details of the black box are none of anybody’s business, so long as the external result adheres to the law in its effect.
This “black box law”, if adopted, would also reverse the execrable verdict in that digital-jukebox case. Copying that an outside observer cannot infer occurred (from seeing one go in and two come out) is then always considered private copying, and fair use.
The “black box principle” should be applied liberally in the law of the land, IMHO, to any situation short of murder or statutory rape — so private drug consumption (whatever the substance) and private acts among consenting adults would be legal. Many such acts are still criminal, in a prudish Victorian throwback to medievalism, in a lot of nations and US states, under assorted drug and sodomy laws. No harm and out of public view = no foul is another way this could be summed up. No harm and in public view of course could be a violation of a taboo (e.g. public indecency; drug pushing) and the law. I’d also restrict serious time and felony status to serious harm — assaults, rape, murder, pushing addictive drugs … copyright infringement would return to being a civil matter or, at most, a misdemeanor.
“If I create something under copyright, I have a monopoly on who gets to copy the work. CleanFlicks was clearly copying works without the permission of the copyright holder. .”
One objection to this: in some formats, legitimate use is impossible without making at least an ephemeral copy.
If these were VHS tapes instead of DVDs, CleanFlicks could do this without making any copies. It is only because of the DVD format that doing the same thing now requires a copy be made.
This is why I am surprised that the public policy argument was ignored. I mentioned Sega v Accolade before; there, the console was engineered to force an unauthorized game to commit trademark infringement, and the decision held that if legitimate use was impossible without tripping over the trademark, then it wasn’t infringement. Here, the format is archtected so that any modification of the work requires an unauthorized copy.
Xcott
To me, the shocking bit is the judge’s repeated denial that the edited versions were “transformative,” as best summarized by this line:
“…There is nothing transformative about the edited copies…”
Elsewhere the judge seems to narrowly and literally define a transformation as an additive, creative contribution. The edits were a combination of audio and video blurrings; the question is, if they had been actual content ADDITIONS (such as a big black ‘X’ or a big black box saying EDITED, or a ‘BEEEEP’ in the audio), would the judge have considered these additions? If the edits were cuts, would the judge have considered these to be transformative? Probably not. by the judge’s criteria.
To me, this is a question of what constitutes “transformation” under the law, at least as it applies to the Fair Use section. It is curious to me that in this case an obvious TECHNICAL transformation is not a sufficient creative transformation under the law…
A related note: it has been mentioned elewhere that real-time editing services like ClearPlay were not included. It appears that these are different, in that they create an alternate manifestation at performance time, presumably to a private audience; these transformations are actual cuts, rather than ClearFlicks et.al’s blurrings…
Devonavar,
The artist’s moral right to the integrity of their works is a matter of representation and attribution, not one of control over derivation.
Outside of copyright, you can do anything you like with an artist’s works: create any derivatives you want, whether subtly censored or complete mash-ups. What you can’t do is, through explicit or implicit misattribution (even by omission or context), represent these works as those of the original artist.
So, CleanFlicks’ product only violates an artist’s moral right to the integrity of their works, if they provide DVDs that are liable to confuse an audience into thinking they are seeing the original artist’s works. As long as CleanFlicks introduce visible or audible cues to prevent such confusion then the redacted DVDs would not violate the right to integrity.
Remember, an artist may themselves produce different cuts or mixes. Those should not be confused by cuts made by a different artist – it is the responsibility of the deriving artist to prevent such confusion.
This is business being stupid. They should say: wait, let’s negotiate a license for you to do this. If a wholesale copy of the DVD is $5, we’ll let you buy a license for $2 that allows you to make one censored copy. You save money, we make sales that are pure profit, the consumer gets their service.
This isn’t an advanced economic theory, it’s a simple way to practice business so everyone wins. There is no easier IP dispute. Unfortunately the Cartels are no longer interested in doing good business and making happy customers.
Another Kevin,
While I agree that first-sale rights are slowly dying, I don’t think that this decision affects them.
Your analogy is not quite on target. The analogous situation for this case would be if you bought a book and copied it, omitting pages 243-247. You then printed and sold your copies; and for each one you sold, you bought an original book and stuffed it into a warehouse (or, for a different defendent, glued it closed and shipped it with your copy.)
The decision might well have been different if they had figured out a way to scratch out the bits of offensive scenes *on the original disk*. Then it would match your hypothetical.
This decision is downright weird; it appears at first blush to have impact on first-sale rights.
If I buy a copy of a book and tear pages out, make notes in the margin, and otherwise redact the text, can I no longer resell that copy? (Or, for that matter, even give it away: it’s still an act of distribution.) Is the damaged book an “unauthorized derivative work?”
The “first sale” doctrine is dying, fast. And of course, that’s just how the “content providers” would have it – if there are no first-sale rights, the publishers can have the “everything is pay-per-view” world that they think they already enjoy.
This looks to me like just another example of big business using their brute force legal powers to bully the little guy.
Michael Ash:
I fully agree that the judge made the right decision where the law is concerned. As the law is written, this does seem to constitute copyright violation. What concerns me is that this sort of thing shouldn’t be illegal, and you seem to agree at least partly since you are willing to support “on-the-fly” censorship.
What I don’t understand is why you think “that if the people who created the work (or the people who now own the copyright) don’t want to distribute an abridged version, they should not be forced to allow others to do so.”
I find your phrasing particularly problematic. Why should artists have the authority to “allow” others to produce or distribute abridged works. As a producer, I find the censorship of my works abhorrant and insulting. Nevertheless, I don’t see that I have any authority to prevent such censorship from occurring so long as I am still allowed to distribute my own uncensored version, and the censored version is clearly labelled as such.
No matter how much I dislike others being able to make derivitive works from my work, I don’t see that I should have any right to prevent them from being made. If I release a work to the public, that work is a gift that cannot (or, should not) be taken back. If I don’t want derivitive works to be made from my work, I have the option not to release it to the public. Restricting what people can think of my work or how they view it is a worse censorship than allowing others to re-think it in a way that is more pleasing to them, no matter how badly I think they’ve misinterpreted it. Interpretation is up to the audience, not the artist.
I think your argument is weak and self-defeating. If a customer “can do anything he wants with it [your work] besides making and distributing copies”, why can CleanFlicks not censor works as they see fit. So long as they are actually purchasing copies of the movies they edit, they are customers, and, by your words, can do anything they want with it, except copying and distribution. But, CleanFlicks is not distributing the works in question; they are distributing censored versions that, even if they are not legally derivitive works, are substantially different enough that the studios think it is worth suing them. It is that substantial difference that is important; if CleanFlicks was simply reselling the movies that they purchased, their distribution would be perfectly legal. There are no laws against reselling so long as they were paid for originally.
So, it seems to me that the Studios’ case depends on the fact that the resold versions are substantially different from the original versions — even though they seem to have convinced the judge that they are not different enough to be “derivitive works”. Let’s take a hypothetical case here: By the logic of the judge’s decision, CleanFlicks would have been liable if they had distributed burned copies of the movies without censoring them. This is true even if they had bought and destroyed an original for every copy they sold. While this may well be within the letter of the law, it is too far from the spirit of the law for me to accept without suggesting that the law is wrong. There is no reason why such copies should not be allowed to be distributed, whatever the law says.
To sum up. You agree that censorship is acceptable is a customer decides to censor a work. CleanFlicks is a customer, and should therefore be allowed to censor the works in question. As far as I can tell, you do not think that they should be allowed to distribute such works. But, their distribution would be perfectly legal and acceptable if they were not selling censored versions. Therefore, I can only conclude that you object to the censorship, not the distribution. But, as per your agreement that censorship is acceptable, this cannot be the case. Therefore, I conclude that your argument is contradictory and self-defeating.
There is, as Bill Poser said, a competing service (ClearPlay) that works by providing “edit lists” to a computer or specially enabled DVD player, to be used in conjunction with the original DVD. In ClearPlay’s words: ClearPlay lets you turn ON or OFF up to 14 Filter Settings for each movie! You determine the Filter settings for your family. The DVD itself is never physically altered, but the movie is filtered during playback.
It’s kind of interesting to think about: is the ClearPlay edit list in some way a “derivative work”? Or, perhaps, is the package consisting of the original DVD, plus an edit list, a derivative work?
First let me say I doubt I’d ever want to watch one of those CleanFlicks movies, just as I’d not want to read Bowdlerized Shakespeare.
But: it seems to me that the judge was wrong on three out of four issues:
1) Of _course_ public policy should allow CleanFlicks to operate — it hurts no one, and benefits the people who want to see the movies that way.
2) Of _course_ the redacted copies are derivative works. The redaction indeed adds something (albeit not all that much): it amounts to commentary on particular sections of the film, which says “this section is offensive”.
3) Of _course_ CleanFlicks isn’t reducing the studios’ profits. Anyone who buys from CleanFlicks is unlikely to see the original movie at all.
Someone has already noted that there’s another (albeit technically complex way) that CleanFlicks can continue to provide a service: by selling, not ready-to-play DVDs, but rather small data files that contain lists of _regions_ on a DVD that they suggest skipping. With suitable technology, their customers could use those files to program a DVD player.
I don’t have an opinion on this as a matter of law but only as a matter of policy and justice.
The copyright owner got paid for every copy and that should be enough. What people do with their copies after they buy should be their own business and none of the studios. A right to forbid modification does not serve the progress of science and the useful arts.
Regarding: “the studios were feeling defensive about the overbreadth of the DMCA, so they didn’t want to generate more conservative opponents of the DMCA by winning this case on DMCA grounds.”
I don’t think so. I suspect they didn’t want to risk losing the DMCA claim based on a great sympathic defendant:
“CleanFlicks”, copyright infringement, and DMCA
If I recall correctly there is a service that does not directly modify movies but instead sells lists of potentially offensive regions labelled as to how they may be offensive. You then program your DVD player to skip regions with selected labels. This evidently falls outside the scope of the Cleanflicks ruling. As a result, it seems to me that the movie companies have shot themselves in the foot. Not only is there an alternative means of accomplishing the same goal, but it is one that requires programmable DVD players and therefore will encourage the use of technology that gives the consumer control over what he or she views. Among other things, this will create allies for Free Software among social conservatives.
I don’t know if I agree with all of the reasons, but I definitely agree with the conclusion.
If I create something under copyright, I have a monopoly on who gets to copy the work. CleanFlicks was clearly copying works without the permission of the copyright holder. The fact that they were buying one copy for each copy sold makes no difference, just like I couldn’t start an online music store with no studio participation by buying one CD per set of MP3s sold.
There may be a market for this, but in the end, I think that if the people who created the work (or the people who now own the copyright) don’t want to distribute an abridged version, they should not be forced to allow others to do so.
Devices which abridge the work on the fly are a different matter. Once the customer has a copy of your work, he can do anything he wants with it besides making and distributing copies (and sometimes even that).
Well, that’s disheartening news. I rather enjoyed being able to watch some movies I normally wouldn’t even consider.
Also frustrating is the fact that, if I understand correctly, the studios could release movies on DVD in such a way that you could choose the rating you were comfortable with, and watch the movie at that rating. Granted, it would require some extra effort on their part, but I not only believe that there is no technical reason why they couldn’t do this, but I thought it was one of the original selling features of DVDs. (Although, I may be out to lunch.)