The Family Entertainment and Copyright Act of 2005 has made its way through Congress and is now heading toward the White House for George Bush’s signature. The bill includes new criminal penalties for people caught pirating movies and legalizes the production of DVD players (like those from ClearPlay) with filters that allow consumers to mute or skip objectionable language or scenes. Objectionable to whom? This is from ClearPlay’s website:
The ClearPlay service uses “ClearPlay Filters” that are associated with each different movie. The ClearPlay filters are compiled by our staff of movie professionals. These professionals go through individual movies and identify content which may have contributed to a movie’s PG-13 or R rating. The content they identify generally falls under the categories of graphic violence, sexual content, and language.
The user-interface is very simple. You can turn ClearPlay ON or OFF with a single setting. You can also customize your filter preferences by adjusting 14 different filter settings (that gives you 16,384 potential user configurations!). Based on your settings, content will be skipped over or muted during playback of the movie. Great care and effort is taken to ensure that although certain content is removed, the continuity of the story is maintained, and the presentation retains its entertaining value. Many say the end result is similar to an airline or television presentation of the movie.
According to news reports, various film industry groups vigorously opposed the cleansing provisions. The objections appear to be based on some inflated notion of artistic freedom. Count me on the side of the Electronic Frontier Foundation, whose attorney said, “Once you have the DVD in your living room, it’s nobody’s business how you choose to watch it.”
I say:
1. hip hip hooray.
2. i think it sucks that special interests (i.e. clearplay) have lobbied/campaign donated their way towards a legislative protection blanket for their industry; while their competitors clean fliks will have to suffer Hollywood’s legal arrows alone.
3. Would folks have a different opinion if ClearPlay was designed to filter “in” or “on” additional sex, violence, etc. rather than taking it out? Granted, maybe technology isn’t to the point of creating new scenes yet, but…the “once you have it in your living room, it’s nobody’s business” sounds alot like the Lawrence decision & could work both ways.
Does it violate artistic integrity to fastforward over certain scenes as well? Turning down the volume? What if I fiddle with the color or contrast controls on my television? Legal opposition to this sort of thing strikes me as further evidence that Hollywood is full of pretentious nitwits.
Lyle: It is by no means obvious to me that Lawrence was such a bad decision. It could well be harbinger of the return of the Constitution in Exile and all that.
Nate: You mean the non-existent Constitution in Exile “movement”? ;). In anycase, I was just asking the counter-factual.
Professor Smith,
Leaving aside the question of whether we should allow one corporation to censor the work of another for the benefit of people who are too stupid to make their own content decisions, I am still troubled by the bill.
Is it not the first step toward barring the redaction of commercial content? According to the CRS summary, the bill allows only editing that “makes no changes, deletions or additions to commercial advertisements.” Isn’t that the sort of thing that should be left to the parties, and handled in contract? What about a TiVo device? Can it still be uses to skip commercials? Will DirecTV have to remove that feature from new boxes it sells?
And what of product placements? Could the good folks at ClearPlay safely edit a nude scene in which the lady is wearing expensively-placed Victoria’s Secret lingerie?
If not, I predict a rash of films with Dorito-strewn bedcovers and tattoos of Coca-Cola cans.
CP
CP: Great point re: that loophole. If true (do I sense humor in your post?), that would certainly expose Hollywood’s true motivations and rip-away their pretentions to artistic integrity, wouldn’t it?
Gordon,
It’s funny, I usually would be on the side of the artists, but in this case I think you’re right on. “Artistic integrity” is nothing more than a front for “if you pay us enough, we’ll edit it as much as you need us to so it can be shown on airplanes and tv”. It’s all about the green and has nothing to do with any kind of integrity.
My question is this: Will the ClearPlay be able to filter out the objectionably stupid Jar Jar Binks from the new Star Ward movies…?
Er…. Star Wars, rather. I don’t mean to be giving Halestorm Entertainment any new, twisted ideas :)
The thing that bothers me about this is that when well-intentioned Mormons buy their edited copy of American Pie or whatever, yes they get to participate in the popular culture without seeing anyone’s naughty places but to the Hollywood establishment it simply rings up as another sale — more incentive to make more of the same.
You all know my disdain for the unwarranted slippery-slope argument, but I don’t think it takes much imagination to see that more sales = more violence, nudity, sexual themes, etc. in the future. If ClearPlay and the ilk are our way of taking a stand, I’d have to say it’s more of a slouch.
Lyle,
Certainly an attempt at humor, yes.
As for Hollywood’s true motive, I think it depends on the film. No one serious would argue that most movies out of Hollywood are artistic works. Rather, most are a product sold by a very profitable industry. That does not mean no movies are works of art. Some are, and are seriously intended that way. Some of those make money, though -sadly- not as many of them or as much money as is made by, say, The Mask. But that’s true of all art. For every serious painting, there are ten Thomas Kinkades sold to the same fools who buy tickets to Jim Carrey movies.
CP
I’m with Chat too on this. Buying a copy of a DVD that you then edit, only tells Hollywood that you bought they film and that they should make more. You’d think they would love this decision because the production companies and distributors sell their movies anyway and they don’t have to do any of the work of editing the product.
This is troubling on several fronts.
First, the bill priveleges a particular business model — ClearPlay’s. There are a number of other companies who offer similar products and services — Clean Flicks, a number of others — that are not exempted under this bill. Specialized legislation of this sort is always troubling.
Second, as Chad too’s comment implies, removing a few profanities or clipping a couple of scenes does not turn the the fruits of Babylon into those of Zion. I’m troubled that people seem to think that it does — that if you snip a couple of offensive scenes you can then indulge in the rest of the film that was intended to frame those scenes. Most of the spiritual damage that accrues from Hollywood’s output is not inflicted by the few snippets that these technologies remove.
Third, on the other side of the coin, there really are works of art that will be damaged by removal of the purportedly “naughty bits.” We’ve had a number of discussions here about the cultural damage that could be done by editing in BYU’s International Cinema, and often villified the Varsity Theater’s hamhanded editing in the process. Why re-create the Varsity Theater in your living room?
And, finally, EFF’s paen to self-determination aside, that is not what is going on there — what is going on in your living room with this technology is surrendering the editing function to someone else, whose values may or may not be yours. This might not be such a problem if a range of editors were available, so that several different products, tailored to different views on art and morality were available, but here is where my first comment about the priveleged business model comes back to bite — the other suppliers of edited films haven’t been given a pass by Congress, so it’s either ClearPlay’s view of morality or Hollywood’s.
I’m not crazy about ClearPlay and related services either. Argue all you want about how Hollywood is just selling a product and doesn’t care about art — people’s names are still attached to those films. How would you like it if someone sold a blog filter that deleted or changed some of the words in your posts without your knowledge or permission? (Ok, I’m sure there is a huge market for this kind of product) Probably not very much, I imagine.
Re comments 9, 11, 12:
I agree. It is foolish to assume that less evil equals good. I recall a GA making an apt and amusing response to a question about the propriety of watching soap operas—it was something to the effect that we should at least ensure that we are giving the Lord as much airtime in our homes as Satan.
The clearplay technology is no panacea; it does not permit abdication of the duty to judge wisely when consuming entertainment. I can think of numerous movies that would still be essentially trash even if all violence, profanity, and sexuality were redacted.
Still, I am optimistic. There are works of fine art (the thread here on foreign film comes to mind) that I may be more likely to enjoy with the new technology.
Diogenes and Bryce (no. 12 & 13):
The actual work of art retains its integrity. We are talking about altering my experience of a copy that is now my personal property. If I want to watch a movie that I own standing on my head or with one eye closed, what business does the “artist” have trying to stop me.
And I am glad to atleast try out paying someone else to edit on my behalf. I have neither the time nor inclination to edit for myself.
Shawn —
It’s fine if you want to edit it yourself, or if someone else wants to sell you technology that allows you to edit it yourself. My problem is with with someone else making money by essentially selling an edited version of my work without my authorization.
Bryce, I wouldn’t mind it at all as long as the edited version was clearly marked as altered, and everyone had access to the original version where they could see what I really said.
I don’t believe that art is sacred, especially when the artist gladly takes my money in exchange for it. Long live CleanFlicks!
Bryce: why is that a problem?
I think this is the typical scenario we are dealing with:
(a) The owner of copyrighted material makes a sale that would not have occurred but for the purchaser’s expectation that he/she could edit the film.
(b) The purchaser has neither the time nor inclination to edit the film personally.
(c) The purchaser pays someone else to do the editing.
What is the ethical or moral difference between me editing myself or me paying someone else to? Either way, the IP owner was compensated; either way, the copy I bought is now my private private property.
I think that Bryce’s larger point has to do with money-making.
If he’s running M* and charging a $5 fee for people to read his posts there, and then I come along and collect a bunch of his posts and publish them as “the best of Bryce” — potentially, I’m cutting into his profit margin. At the very least, he may have a right to charge me for the derivative use of his products.
Yes, TV and airlines edit films. They also pay buku-bucks to Hollywood for the privilege of doing so. Some of these companies, by contrast, seem to assume that they are entitled to make a buck off of altering someone else’s intelectual property, without paying the orginal property owner.
I thought I’d edit comment 18 to prove a point.
Bryce: why?
I think:
(a) The owner would not have occurred but for the purchaser’s expectation.
(b) The purchaser has time to edit personally.
© The purchaser pays.
What is the ethical or moral difference between me or someone else? Either way, the IP owner was compensated; either way, the copy I bought is now my property.
To look at a counter example:
Say that I decide to invent the opposite of Clean Flicks. I invent a gadget called the “p0rnografi-er.” This device allows me to go run edited versions of clean movies, with smut inserted. So I can watch “Notting Hill” and random scenes with a naked Julia-Roberts-lookalike will be interspersed throughout the film. Or I can watch Star Wars Episode 2, and images of a naked Natalie-Portman-lookalike will be inserted throughout the film.
Would there be anything conceptually wrong with that?
It seems that one potential issue is right to publicity. Julia Roberts has the right not to appear to be naked in a film, if she hasn’t actually filmed any nude scenes. Right?
So, does the counter argument apply? Do Sylvester Stallone and Bruce Willis have a right to maintain their swearing, violent tough-guy personas?
Bryan (no. 20): not only am I not offended by the way you mangled my comment, but I am mildly amused. What point were you trying to prove?
Just that I like it so much better. You use words I don’t like. Plus, I think I captured the gist of it. I think I can be conversant on this topic now just as if I never read your original comment. Plus, I now think I can show it to by wife and daughter. Plus, I think this version should be the one quoted on other blogs like M* and BCC.
I don’t like 22 either.
Here’s my new 22. Much better:
Bryan (no. 20): not only am I offended by you, but I am mildly amused. What point were you trying to prove?
Gee, Shawn, you come off as kind of a jerk.
Kaimi, yes, Julia Roberts has the right not not appear to be naked in a film, which is why altered films should clearly be marked as such.
“not not” —> “not to”
Bryce I: How would you like it if someone sold a blog filter that deleted or changed some of the words in your posts without your knowledge or permission? (Ok, I’m sure there is a huge market for this kind of product) Probably not very much, I imagine.
Nate replies: I would not care in the least. For all I know, this is how you have been reading my posts for months.
Kaimi: One problem with you sub silento slippery slope argument is that once we start creating property rights in public meaning, reputation, and the like we inevitably will increasingly place the state in the position of regulating what can and cannot be said about people and ideas. For example, if Stallone has a property right in his tough guy persona, then why can’t he get an injunction against me posting on a blog that I think he is really a wussy ninny?
Furthermore, we must ask ourselves the question of why we have intellectual property at all. Traditionally, American law has viewed IP as a limited monoply, created by the state as an exeption from ordinary economic competition, and therefore requiring special justification, generally as an incentive for production. In contrast, my understanding is that continental Eurpoean IP law — particually French IP law — has been more favorable to the notion that intellectual property exists to preserve the “integrity” of the artist’s creation.
This dicotomoy raises two big questions. The first is the extent to which we want the state to be in the business of policing the countours of acceptable use of ideas, images, and symbols. Not surprisingly, the French law tends to be less deferential to private speech and private symbolic ordering than is American law, something that manifests itself in everything from the Academie Francias to the greater tolerence for the legal suppression of religious symbols.
The second question goes to the basis of property itself. Do we create property rights to serve insturmental, social goals, such as economic efficiency and material propserity? Or do we create property rights because we see them as an expression of some sort of extension of indvidual autonomy into the world beyond ourselves or some other political conception? On this question, it is worth noting that the D&C has quite a bit to say about the subject of property, and from it one might argue that the beginning’s of a theory of property emerge around the concept of stewardship. If this is the case, then perhaps Mormonism offers some traction on this debate beyond the censorship v. smut dance.
Brian: so your no. 20 is a commentary on my no. 18? Do you for some reason want to foreclose such commentary? Are you out to protect those who are too dumb to read both comments and understand what is going on? Those who are too dumb to know that they are watching a modified version of someone else’s work?
Kaimi,
> If he’s running M* and charging a $5 fee for people to read his posts there, and then I come
> along and collect a bunch of his posts and publish them as “the best of Bryce” – potentially,
> I’m cutting into his profit margin. At the very least, he may have a right to charge me for the
> derivative use of his products.
The situation you’ve outlined is not analagous at all.
Imagine that Bryce is charging $5 for people to read his profanity-filled but insightful posts at M*. Some people don’t like seeing all that profanity, so I come along and sell a browser filter that converts profanity into “$%^#.” Bryce is still charging $5 for people to read his posts, and I have not cut into his profit margin in any way. In fact, I’ve probably increased his profits because some people who might not subscibe to his posts because of the profanity can now do so.
Bryce can still object that his posts are meant to be full of profanity, and that by filtering the profanity I’m diluting his artistic purpose. But I’m not cutting into his profits.
The only way I could be considered to be cutting into his profits was if he offered a $7 “profanity-free” access to his posts, which I am now undercutting with my browser filter.
If Hollywood were offering edited version of the movies, then they could complain that ClearPlay was harming their profits. But Hollywood isn’t doing that, so they are left with the artistic argument.
Will and Shawn, I’m not arguing for protecting art, I’m arguing for protecting ideas. It doesn’t take much editing to make a pro-war movie into an anti-war movie, or a pro-abortion film into an anti-abortion film, or vice-versa. There’s not much of a line between editing out a few scenes and bleeping out a few words and actually creating a derivative work of art. I don’t think that’s the intent of ClearPlay and related services, but I don’t see how you can make one legal without essentially opening up movies to any kind of editing.
Also, I’m not speaking as a lawyer (I’m not one), and I’m sure that there are other issues involved. And I can think of compelling reasons why there should be no limits on ClearPlay and related services and technologies. But there’s a part of me that wants me to control what gets published under my name, and how it is transmitted to the end user.
What I would hope might happen in the long run is that digital media publishers begin marking up their own content, readable by mass-market devices, that allow directors and other media producers to have some control over the content presentation, but that allows the end user to determine how the content is displayed. Kind of like CSS for DVDs. If this doesn’t happen, I don’t see how the moviemakers are going to win. You can make ClearPlay illegal, just like file sharing, but that won’t stop it from happening. The best thing to do is to take ownership of the process, which is clearly in demand.
Will, I am sympathetic to your position. However, let me quote from your comment:
Will said, in comment #17, “I ___ believe that art is sacred”
I’ve quoted from you directly, with one omission, and the original text of your comment is available above. However, I’ve completely misrepresented your position, and the non-careful reader will take away a message different from the one you intended. Now, I recognize that this is a pretty simple, somewhat stupid, and very contrived example, and that you probably don’t have much of a stake in whether T&S readers think you think art is sacred or not, but you get the point.
Shawn —
I’m not interested in the typical scenario — that’s exactly the point. I’m worried about the possible unanticipated side effects.
Eric, Hollywood offers edited versions of their movies on airplanes and broadcast TV and they do so for a price.
Eric,
But doesn’t the right to make this derivative work stay with the owner, even if she isn’t using it?
I.e., say I make the film Star Wars. I own the film. I also own the right to sell or distribute translated versions of it.
I decide not to enter the market in France. Not worth it. So I don’t make a French translation of Star Wars.
A couple of enterprising French kids dub a soundtrack in French and want to sell it.
As you say, “Hollywood isn’t doing that” and so it should be allowed, right?
But that misses that point that, whether or not I’m doing that right now, I’ve maintained a property right to do so in the future. And the French kids are harming that property right.
Similarly, Universal and MGM and Sony have edited movies in the vaults, which they make available to airlines etc. They may not sell these to the general public, but they are still Sony property. And your creation of a derivative work, that Sony is the sole party entitled to create, violates Sony’s property rights.
Brian: The problem is that Hollywood does not have a property right in what you view. They have a property right in what you COPY. That is why they call it “copyright.” When a TV company or an airline broadcasts a movie they are making a copy, for which they must get a liscense. They must pay up to Hollywood NOT because of the editing but because of the COPYING. In contrast, a person who buys a DVD from Hollywood and then uses technology to view it in a different way is not violating Hollywood’s right to not have their production copied without alternation.
Once we start extending copyright beyond a simple prohibition on unauthorized copying of material, we need to be quite clear about what we are doing. We are giving the copyright holder a property right in what the viewer can see. One of the reasons that I find the artistic integrity arguments so strained is that they ultimately rest on the — to my mind dubious — proposition that some southern California nitwit is entitled to a property right in what I put into my own mind.
Bryce wrote: “I’m not arguing for protecting art, I’m arguing for protecting ideas.” I am not sure what you mean here. But I think (as Nate points out) the state ought to avoid concerning itself with the ideological content of art. Indeed, editing a pro-war movie into an anti-war movie might result in rather powerful art. Why should we be concerned about this? Why should doing so be illegal?
Nate (#27):
Are you sure you wouldn’t care? What if those edits were designed to misrepresent your positions, so that you came across as some kind of apostate arguing against the fundamental doctrines of the church? With your name still attached? I would care very much.
Of course, this might be taken care of under some other aspect of the law, but I’m not interested in the law right now.
Bryce I: In my mind the distinction is between viewing and copying. If you were to alter my words using some program and then were to distribute those words to others claiming that they were mine, I would be upset. On the otherhand, if you have a plugin to your browser that inserts apostate rants when YOU view the blog BUT DOES NOT broadcast or copy the rant version of my blogging to others, I have no problem. You are not misrepresenting me, since you only read the rant version because YOU installed the software and therefore YOU know that you are not getting the real Nate. As I see it, I shouldn’t have a right to forbid you from reading something that is essentially your own composition, even if it is largely based on my blogs.
The point is that I may have a legitimate property right in how my work is copied and distributed to others, but I do NOT have a legitimate property right in what you choose to read.
Also, in the “it doesn’t harm Hollywood, why are they complaining” department —
If I’m a studio exec, I’m sure not going to trust some little outfit’s assurance that “Great care and effort is taken to ensure that although certain content is removed, the continuity of the story is maintained, and the presentation retains its entertaining value.”
I’m going to be very worried. Worried that this place is going to hack up the film, and the result will be unwatchable, and that that will cut into my future earnings.
For example, say that studies show that 75% of people who watch a movie will tend to watch the sequel. So 75% of the people who watch Jurassic Park will watch Jurassic Park II. That’s a big chunk of money.
Now take that group of people, and have some portion of them watch a terribly-edited, unwatchable Jurassic Park. How many of _them_ are going to want to see the sequel?
So yeah, this potentially impacts the studio’s bottom lines.
Bryce, your point is well taken. The use of editing to misrepresent the original is a dirty trick. My personal opinion is that the side effects of tightening restrictions on the use of intellectual property are potentially more harmful than the dirty tricks that inevitably accompany more liberal IP laws.
Kaimi: Why does the studio have a property right in how someone experiences Jurrassic Park. Suppose, for example, that I watch the movie in a theater while sitting behind someone with severe flattulence, and as a result I have strong negative associations with Jurassic Park. Should the studio be able to recover from flattulent movie goer or perhaps the movie theater, on the theory that the studio has a property right in how its work is presented?
Nate,
Okay, so the studio has no property right at all in how its work is presented. That’s quite an assertion.
Let’s see. Sony spends $100 million on Spider Man. It’s full of special effects and whatnot. It’s also clear as day that they’re intending this to be a money making sequel machine.
Universal, Sony’s competitor, decides to kill Sony’s golden goose. Universal gets a copy of Spider Man and makes an edited version. They insert flatulence jokes thoughout the film, cut out some crucial plot elements, and they add a computer-generated alien named Jar Jar Binks who is guaranteed to induce viewer hatred. They run their version in theaters at $2/showing, making no profit, but thoroughly poisoning Sony’s well.
Is that a problem? Why?
Kaimi (no. 37): Your hypothetical seems to assume the dumbest possible consumer: “Company X mangled Paramount’s latest blockbuster. Therefore, I will no longer consume Paramount’s products!”
As many other comments, this comes back to whether the consumer realizes that the product is modified. If someone buys a clearplay DVD player, inserts a DVD into it, and turns on the editing feature, that person is very likely (in my humble opinion) to realize that he/she is watching a modified version of someone else’s work.
Nate, as a representative of Southern Californian nitwits let me say this:
No one is extending copyright. That is not the bill that will likely be passed. I am not arguing that copyright should be extended. I will point out, however, and I think the fact I have to do so shows a certain lack of knowledge out there about how film editing actually works, that the cleaned up version you would view is in fact a digitally recopied version of the original you purchased. EDITING is COPYING. When I edited Shawn’s comments. I copied. I cut and pasted and took out what I didn’t like. This is what airlines and broadcast TV do. That’s why they pay.
Let me try to extricate myself from the mess I’ve gotten myself into. I’m all for DVD players that let me view DVDs however I want. I would love to be able to create my own cuts of movies I own, and I fully expect this technology to become available on the mass market in the near future, since there are others who want the same thing, I am sure.
The boundaries of what a piece of art or intellectual property or whatever it is we are talking about here are becoming increasingly fuzzier these days, however. Is a remix of an old Elvis song really an Elvis song? or is it the producer’s? or is it the work of some other person? We’re used to thinking of movies conceptually as a continuous piece of celluloid, or as one large .mpg file, but nowadays, it’s just as easy for a movie to be a sequence of small video files, with the sequencing information provided as a separate file. If we replace that sequencing file with one of our own making, I think it’s becoming increasingly the case that we’re creating a new, derivative work that should appropriately carry our name if it is being redistributed. However, the ClearPlay model doesn’t do this, for obvious reasons.
I don’t have a problem with editing or resequencing per se. My issue is with how we attribute the end product. The lawyers can argue about who should pay what and how. I just don’t want my name stuck on something I didn’t write.
I am an indefatigable Galapagos Mouse! Hear me roar! All your base are belong to me! Mwahahaha!
I think that Nate’s comment (#39) can be edited to the following:
“I have severe flattulence.”
That’s a perfectly valid representation of his original comment. I’ve just edited a few words out, that’s all.
Kaimi, that counter-example falls flat at the point of “[Universal] run[ning] their version in theaters…” The studio execs at Universal can do whatever they want with their DVD of Spiderman at the Universal getaway weekend, but they only get into trouble when they try to distribute it. They would get into trouble even if they hadn’t edited it.
Brian, I think Clearplay is a bad idea for the reasons Chad Too mentioned above, but in this case EDITING is NOT COPYING because the digital format allows for the editing to be divorced from the media that holds the movie. You can’t do this with film, you can with DVDs. In the simplest case, the editing would be nothing more than a list of points to fast-forward past in the film. No copying is involved. To my understanding, Clearplay is essentially distributing a list of of places to skip or mask in the film, not the film itself.
Bryce, you made a comparison to blog comments. But we already have the capability of running everything you say through the Shizzolator; what’s different here? Adobe and Microsoft sell pricey software that they don’t want copied, and other people develop plugins that can minimally or fundamentally alter the appearance and performance of their software. How is Clearplay different? Once people access media of any kind, only the reader/listener/viewer can decide how to receive it. It doesn’t take any editing at all to turn an anti-war film in the opposite, just a particularly keen appreciation for gore and explosions.
“Is that a problem? Why?”
Because it involves the COPYING and DISTRIBUTION of another’s work.
Brian: As I understand the ClearPlay technology, it does not create a new copy of the DVD. Rather, it places a digital filter between the extraction of the digital image from the DVD and the display of the digital image on the screen. It is a copy in the sense that any viewing of a digital image is a copy of the original digital format, but if this constitutes an illegitimate copying of a DVD, then any viewing would constitute such a copying.
This is a different kind of editing than occurs in the airplane context, where actual copies of the DVD are made, distributed, and shown to the paying public. Because the copyright holder has the right to forbid ANY kind of commercial copying, he can bargain with the airline to control WHAT SORT of copying is done. It is this bargaining process that gives the studio control over the airline’s editing process. The rights created are contractual rights rather than property rights (intellectual or otherwise).
Just to be clear: I have no particular stake in ClearPlay’s business model one way or another. I watch R-rated films from time to time and am not a huge fand of Bowlderization. I just get upset about the conceptual extension of copyright beyond the right to forbid copying into the realm of controlling the media consumption of others. It seems to me that giving people property rights in the intellectual consumption of others is a recipe for stiffling the free-flow of ideas and freedom of discourse.
I understand that some movies simply aren’t worth watching, edited or no. My preferred use of this technology is to take otherwise innocuous films and cut out swearing that I do not wish to hear. There is a reasonably large chunk of movies that include profanity that I would rather not have in my house even though the subject matter is inspirational or unobjectionable.
Also, I like putting economic pressure on studios to provide airplane/broadcast versions to the DVD market. It appears that they are leaving money on the table in favor of a preference they have for not editing DVD’s. I am guessing that that Hollywood social norm will come apart with the right competitive pressure.
Of course, even if the clearplay technology did make a copy, a congressionally enacted exception specifically permitting such hypothetical copying would render all discussion of general copyright law moot.
Jonathan, the difference is that when you run something through the Shizzolator (which doesn’t seem to be working right now), the output is understood to be (automatically generated) parody, which has a long and honored history, and which is well understood by its consumers. ClearPlay, on the other hand, tries to make the claim that “Great care and effort is taken to ensure that although certain content is removed, the continuity of the story is maintained, and the presentation retains its entertaining value.” In other words, the work is more or less as the original producer intended. My claim is that they are essentially producing a derivative work of art, and it should be recognized as such, legal issues aside (I don’t care who pays whom for what). Sequencing matters; otherwise, we all owe the dictionary publishers a lot of money.
Nate Oman writes:
Brian: The problem is that Hollywood does not have a property right in what you view. They have a property right in what you COPY.
I’m afraid this is wrong on the law. The exclusive rights of the copyright owner extend not only to unauthorized copying, but to unauthorized adaptations. (As well as to unauthorized public performances and displays — I could make the argument that ClearPlay creates an unauthorized public performance of the movie, but that is a fairly complicated argument, so let’s go with the easy one.)
The adaptation right does not have a fixation requirement, i.e., the changes to the DVD need not be permanent in order to create a derivative work. Bottom line: Hollywood probably does have a property right in what you view, which is why the Congressional exception is needed to shield ClearPlay if they are to continue in business.
Thanks, obi-wan. May the force be with you. (Hold on, I object to the word with). May the force be you.
re: buying & then editing still puts $ into hollywood & signals them to produce more filth.
No, not really.
1. sure, they still get their cash. however, the cash/revenue for editing is creating a secondary market of sorts. so, editing does _not_ tell hollywood to make more filth. It tells them loud & clear, in the only lingo they understand, i.e. $, that folks do _not_ want the filth & are willing to pay a substantial sum to avoid the filth. It is actually a very strong signal to hollywood; in compliment to the increased probability of profitability brought by family friendly movies, that they should make clean/family friend movies.
2. If there is a market to be served, then Hollywood either has to do something about it, i.e. serve the new niche market for ‘clean’ products, or allow someone else to do so. In fact, if they try to prevent others from entering the market, there maybe grounds to label that anti-competitive behavior and hence, an anti-trust suit.
Kaimi,
Again, your hypothetical is not apropos.
> I decide not to enter the market in France. Not worth it. So I don’t make a French translation
> of Star Wars.
>
> A couple of enterprising French kids dub a soundtrack in French and want to sell it.
>
> As you say, “Hollywood isn’t doing that” and so it should be allowed, right?
I didn’t say that. It is, as the French say, un homme du straw. (OK, maybe the French don’t say that.) I clearly allowed for the possibility that artistic control issues remained.
> But that misses that point that, whether or not I’m doing that right now, I’ve maintained a
> property right to do so in the future. And the French kids are harming that property right.
The specific argument I was countering was your claim that such activities were “cutting into profits.” (I must say I really like the new & improved corporate-capitalist Kaimi, always ready to defend profits from being cut into by the little guy.) Your hypothetical here assumes that making a French version of your movie is insufficiently profitable for you, so you don’t bother to do it. Now, as the French kids sell their French dialogue CD that is to be played in synchronization with your untranslated DVD, what happens to the sale of your DVD in France? Why, it goes up! Your profits are not being cut into.
My point is that the “profits being cut into” argument only makes sense if there is a profit to cut into.
Obi-wan: You may well be right on the law. My understanding, however, is that the ClearPlay case is very much on the margins. The core adaptation case, as I understand it, is someone who publishes an abridged version of a book, makes a movie version of a book, or performs an adapted version of a play. One can argue quite plausibly, I think, that ClearPlay is rather more like taking a magic marker and crossing out the offending portions of your personal copy of _Madame Bovary_. Obviously, if we are going to have any sort of real protection against copying, it makes sense that we have to also create some sort of protection against adaptations or else the protection against copying is swallowed by the exception. I would object to extending this probhibition farther than is necessary to secure the monoply in publication. I think that we enter completely different territory once we start justifying the rule by reference to artistic integrity, etc.
Is there any provision in the law to prevent the studios from contracting around it? It seems to me that they could try getting around the law using shrink-wrap lisences. Every DVD sold to the public would be wrapped in plastic. Under the plastic would be a piece of paper stating that by removing the plastic, the owner was agreeing not to ever view the movie (or any other movie for that matter) using technology that alters its presentation (obviously you need better language than this). By opening the movie, the studio and the viewer would now have a contract giving the studio more rights than they have under the copyright laws. The studio could then turn around and sue ClearPlay for tortious interference with contract.
Number 57
“One can argue quite plausibly, I think, that ClearPlay is rather more like taking a magic marker and crossing out the offending portions of your personal copy of _Madame Bovary_.”
No, that would be altering the book. It is more like hiring ClearPlay to come to your house for $5.00 and reading your copy of “Madame Bovary” to you according to what they think is acceptable to your standards. And doing it in home after home after home, perhaps altering the reading to fit that home’s standards. Maybe they take out a whole chapter in your house, but only snippets of words here and their in your neighbors house. I really don’t know if it is legal or not, but it just somehow doesn’t sound *right*. Why should they be making money off of the author’s work without his permission?
Back to lurking…
Well, besides the fact he is dead.
You may well be right on the law. My understanding, however, is that the ClearPlay case is very much on the margins. The core adaptation case, as I understand it, is someone who publishes an abridged version of a book, makes a movie version of a book, or performs an adapted version of a play. One can argue quite plausibly, I think, that ClearPlay is rather more like taking a magic marker and crossing out the offending portions of your personal copy of _Madame Bovary_.
Which, at least in the Ninth Circuit, is very probably an infringement. My copyright prof used to point out that by marking and highlighting our casebooks, we were quite likely violating the author’s exclusive right of adaptation.
The specific case that makes life difficult for ClearPlay is Kozinski’s opinion in Microstar v. Formgen — the infringing computer MAP files in that case are directly analogous to ClearPlay’s product, which creates a “new narrative” out of the DVD. Also on point is ABC v. Gilliam, where the network was held liable on multiple grounds for editing the broadcast of “Monty Python’s Flying Circus” to the point of mutilation.
I would object to extending this probhibition farther than is necessary to secure the monoply in publication.
Our judgment under the statute is that the right to control derivative works — that is, the right to control use of the work in adjacent markets — is part of the incentive conferred by copyright. I see above that Frank McIntyre believes the studios are irrational actors by not providing the edited versions themselves — believe me, they’re not, and the statute assumes that the copyright holder knows best how to maximize revenue from adjacent markets.
I think that we enter completely different territory once we start justifying the rule by reference to artistic integrity, etc.
Maybe, but if so we entered that territory a good 15 years ago when we acceded to the Berne Convention. Gilliam and similar cases are what allowed the U.S. to claim that we are in compliance with our treaty obligations to provide moral rights — that we do protect artistic integrity.
Which raises the interesting question as to whether this new statutory exception violates our treaty obligations under TRIPs, but that’s a legal discussion for another place, I think.
> It is more like hiring ClearPlay to come to your house for $5.00 and reading your copy
> of “Madame Bovary” to you according to what they think is acceptable to your standards.
> And doing it in home after home after home, perhaps altering the reading to fit that home’s
> standards. Maybe they take out a whole chapter in your house, but only snippets of words
> here and their in your neighbors house.
Actually, it’s more like hiring ClearPlay to come to your house for $5.00 and place strategically-shaped Post-It notes over the portions they think might be unacceptable based on your expressed prefences.
It’s not quite the same as hiring Pink Floyd to come to your house and play The Dark Side of the Moon while watching The Wizard of Oz with the sound turned down.
Thanks to Nate for making all of the right arguments so I could play hookey on this thread for awhile.
PF’s comment #59 is the last in a series of comments by people who express concern about ClearPlay (or anyone else) altering artistic content, but I cannot understand the sense in which the alterations allowed by the new law seem wrong.
Take another example of alteration that I trust all of us would find acceptable: I read books to my children. If I am reading and I come upon a passage that I would rather have them not hear, I skip it or substitute unobjectionable words. Do I have a legal obligation to the author to read such passages? No.
The difference between this situation and PF’s hypothetical is that ClearPlay is making the alteration choices under his hypothetical. Although I still wouldn’t see a problem with that, PF’s hypothetical does not accurately represent ClearPlay’s role. They should not be portrayed as altering the book based on their own judgments, but offering to locate objectionable passages based on parameters specified by the reader. The proper analogy, therefore, would have me hiring ClearPlay to expunge certain words that I otherwise would have to read and expunge on the fly. On what notion of artistic freedom is that objectionable?
#63:
“They should not be portrayed as altering the book based on their own judgments,”
But don’t they sit in their offices and “make judements” when they edit the movie and set up their filters? “Is this beheading too bloody, or not?”
My objections don’t have so much to do with “artistic integrety” as the idea of ClearPlay making money off of someone elses art-work without their permission, and without compensation.
Obi-wan, I think the 9th Circuit would not find ClearPlay technology to be an infringement of the derivative work right (or what you call “adaptation”).
Micro Star v. Formgren isn’t the right case to compare to ClearPlay. Micro Star compiled several player-created levels from the video game “Duke Nukem” on CDs and sold them under the mark “Nuke It.” The CDs contained copyrighted MAP files that were embodied in a concrete form. ClearPlay filters do not contain any copyrighted material. The filters are merely instructions that tell the DVD to skip or mute certain frames.
ClearPlay technology is much more analogous to the Game Genie, which was determined to not be an infringing derivative work in a case called Galoob before the 9th Circuit. The Game Genie “functions by blocking the value for a single data byte sent by the game cartridge to the central processing unit in the Nintendo Entertainment System and replacing it with a new value.” Like ClearPlay, the Game Genie doesn’t embody any copyrighted material in a permanent concrete form.
Therefore, ClearPlay never has infringed on anyone’s derivative work right.
If I am reading and I come upon a passage that I would rather have them not hear, I skip it or substitute unobjectionable words. Do I have a legal obligation to the author to read such passages? No.
You’re real sure of that, are you? Take a good hard look at 17 USC sec. 106(2).
And even if you are correct, you are not in the business of selling “Gordon’s Guide to Redacted Reading.” ClearPlay is. See Microstar v. Formgen Inc, 154 F.3d 1107 (9th Cir. 1998).
The scary thing about IP law is that obi-wan’s claims about its possible extent are not really all that far fetched!
Obi-wan, you also mentioned Gilliam v. ABC suggesting that ClearPlay mutilates artists’ works in a way that’s comparable to the mutilation in that case. I disagree with that also. In Gilliam, ABC edited out 24 minutes of a 90 minute episode of Monty Python’s Flying Circus and put it on television without any disclaimer that they had edited it. Viewers saw a choppy, disjointed show where some of the punch lines to the jokes were missing and for all they knew it was Gilliam’s original work. Gilliam won a claim against ABC under Section 43(a) of the Lanham Act for false misrepresentation of origin.
The case with ClearPlay is distinguishable. ClearPlay doesn’t confuse viewers into thinking that the original movie creators created exactly what they see on the screen. Viewers know when they are viewing a movie through a ClearPlay DVD player, and when the movie skips, they know that’s not bad directing. Also, ClearPlay edits out a much smaller proportion of movies than ABC did.
Micro Star v. Formgren isn’t the right case to compare to ClearPlay. Micro Star compiled several player-created levels from the video game “Duke Nukem” on CDs and sold them under the mark “Nuke It.” The CDs contained copyrighted MAP files that were embodied in a concrete form. ClearPlay filters do not contain any copyrighted material. The filters are merely instructions that tell the DVD to skip or mute certain frames.
As might be expected, I think this analysis is quite clearly wrong. The MAP files in Microstar did not contain any material copyrighted by Formgen, which is to say that they contained no material from the Duke Nukem game. They were (as all MAP files are) instructions on when and how to display material from the game’s library of images. Although they contained no protected expression, Kozinski claims that they infringed the “story itself” by constituting “sequels” to the narrative of the game, making them derivative works.
They are quite precisely analogous to the ClearPlay files, which contain instructions on when and when not to display material from the DVD, creating a derivative work of the movie narrative.
ClearPlay technology is much more analogous to the Game Genie, which was determined to not be an infringing derivative work in a case called Galoob before the 9th Circuit. The Game Genie “functions by blocking the value for a single data byte sent by the game cartridge to the central processing unit in the Nintendo Entertainment System and replacing it with a new value.” Like ClearPlay, the Game Genie doesn’t embody any copyrighted material in a permanent concrete form.
First, the reasoning in Lewis Galoob is somewhat questionable, given the emphasis on “concrete or permanent form” which is not required by the plain language of 17 USC 106(2). But even if we grant that fixation is necessary, ClearPlay, unlike the Game Genie, most certainly permanently and concretely embodies instructions for generating the new version of the DVD movie, a derivative work under Microstar.
Therefore, ClearPlay never has infringed on anyone’s derivative work right.
Having been more than a little involved in this issue, I’m pretty sure that they have, which is why Congress had to intervene.
obi-wan: Has any circuit other than the 9th considered related issues?
obi-wan, are you really arguing that substituting words while reading a book to your kids is an unauthorized derivative work? Nate Oman, are you really buying this?
That’s wrong because
1: when you read a book to your kids there’s no permanent embodiment in a concrete form
2: the doctrine of fair use would protect this activity
Nate Grow: I would have to read the case law. I have read enough — to my mind — horrifying IP decisions that it doesn’t seem impossible, especially in the 9th circuit which is prone to “creative” jurisprudence. I do think that obi-wan’s fixation argument is quite weak. Also, in the cases that obi-wan cites, the “derivative work” was being sold under a seperate title as a seperate product, where CearPlay makes not claim to be selling anything other than a filter. Hence, there is no possiblity of confusion as in the ABC case.
I want one of these filters!
Only, I don’t care about nudity/ violence/ profanity. I want to screen anything that refers to god/ religion/ Christ/ saints, ex cetera. Veggie Tales is SoOO much better without the last five minutes, right?
Just because the message is entirely different doesn’t make any difference. None of them are artists, they’re just in it for money. It’s my property now, right?
Drat, forgot to close the tags on that last comment again.
Nate Grow claims Viewers know when they are viewing a movie through a ClearPlay DVD player.
They do? How do you know this? How can you ensure that they do? That the little kids know it? That the friends they invite over to watch with them know it? That everybody who sees the edited movie knows it?
It would not be at all difficult to put James Cameron (and a parade of other directors) on the stand to testify that the ClearPlay “Titanic” is mutilated, is not James Cameron’s “Titanic,” and is falsely designated. There’s a very good 43(a) claim there, as well as the derivative work claim (which, if you’ll check the Gilliam opinion, the Pythons also prevailed on).
Believe me, this case is a copyright plaintiff’s dream, which, again, is why it took the legislature to save it.
obi-wan,
Huh? I never said they were irrational, I said I thought they weren’t maximizing profits, but rather satiating some other preference they possess. Further, I am guessing that to a significant extent this preference is susceptible to social norms (like tastes in clothing style are, for example), and so partial defection would lead to a great deal of defection. It isn’t textbook neoclassical microeconomics, but the actors are still perfectly rational.
But put that aside, I would be very interested if you have some compelling reason for why the studio could not make additional revenue by providing edited copies. I am always happy to entertain the possibility that the observed outcome is profit maximizing. It makes the math easier.
obi-wan,
I actually don’t think that it took the legislature to save ClearPlay. I think it was legal before. Register of Copyrights, Marybeth Peters agrees according to her testimony before a congressional committee on the bill.
Congress passed this bill perhaps because
1. they wanted to ensure that the district court in the 10th circuit doesn’t interpret the derivative work right, Micro Star and Galoob the way you do (which I don’t think is the right way).
2. they wanted to show their constitutencies that they support family values
Antigone,
Of course that would be acceptable. But one can edit the last 5 minutes very easily by turning off the dvd 5 minutes early. Thus the “off button” acts as one’s editing technology. Or just leave the room! Until, of course, obi-wan and the 9th circuit get a hold of you and make you sit through the whole thing every time!
Actually this all makes sense now. Obi-wan is worried because he knows people are fast forwaarding through all the horrible parts of Episode II and he wants to stop this destruction of creative vision!
Personally, I have no trouble believing that IP case law (or any other law) is a disaster. Fixing bad law is, purportedly, what the legislature is supposed to be doing all the time.
Frank: As I understand you, strictly speaking it is not possible to behave irrationally. One is always maximizing something and (I assume — for one needs this to make the tautology work) one’s preferences are always transitive.
obi-wan, are you really arguing that substituting words while reading a book to your kids is an unauthorized derivative work? Nate Oman, are you really buying this?
That’s wrong because
1: when you read a book to your kids there’s no permanent embodiment in a concrete form
Please read the statute. 106(2) — unlike 106(1) and (3) — contains no requirement for permanent embodiment “in copies or phonorecords.”
2: the doctrine of fair use would protect this activity
Ah, yes, poor fair use — the last resort of the outmatched copyright maven. First, since fair use is a defense, this doesn’t mean that there’s not an unauthorized derivative work created, only that it is excused. Since the reading is private, I agree it’s possible that the 107 factors might line up that way. But of course ClearPlay’s distribution of their files is not private, it is commercial, in multiple copies, which is why I suggested above that Gordon’s Guide to Redacted Reading would likely be a problem. I’m pretty sure that neither is fair.
Nate,
Yes, rationality is about transitivity and completeness. I think I complained about this last summer.
In this case, I could impose all sorts of restrictions on what is “rational” and be just fine. Obi-wan may be confusing “profit maximizing” with rational. I am clearly arguing that the firms (or someone in them) do not appear to be profit maximizing. But that is a long way from arguing that they would be happier doing something else.
For example, I am not a profit maximizer and neither are you. We are utility maximizers. So are directors. Studios, even profit maximizing ones, may find it cheaper to contract with directors to not release edited DVD’s rather than pay off the directors so that they could. The director satisfies his preference at the price of a lower financial payment and the firm gets what it wants. It appears to be a common error to say that someone not being a wealth-maximizer makes them “irrational”. This is not the case nor would it be a particularly useful definition.
Congress passed this bill perhaps because
1. they wanted to ensure that the district court in the 10th circuit doesn’t interpret the derivative work right, Micro Star and Galoob the way you do (which I don’t think is the right way).
2. they wanted to show their constitutencies that they support family values
Basically correct, except that I’m not sure what you mean by “right way” — as a matter of reasoning and precedent, it is the likely way for the 10th Circuit to go. But number 2 is the real reason — note that Congress did not amend section 101 or 106 to “fix” the Microstar holding; it only created a carve-out for the ClearPlay business model.
To Nate Oman: There is a 9th Circuit/7th Circuit split on a somewhat different version of the derivative work question; compare Mirage Editions Inc. v. Albequerque A.R.T. with Lee v. A.R.T.
obi-wan said, “Please read the statute. 106(2) – unlike 106(1) and (3) – contains no requirement for permanent embodiment “in copies or phonorecords.””
The statute may not say it, but Galoob and Micro Star interpret it that way. Also the House Report for the Copyright Act clarifies that Congress intended to make a fixation requirement for the derivative work right.
Frank: I guess my problem is that I sometimes have a hard time figuring out if saying “Nate is a utility maximizer” is any different than saying “Nate does stuff.” Afterall, we are not using utility here in any Benthamite or related pleasure-related sense of the word. Utility simply means that abstract maximand infered from my expressed preferences (a fancy way of saying, “What I happen to do”).
I don’t have time to follow all of the intricacies of the arguments presented here, but I just wanted to chime in as a happy consumer of ClearPlay’s services. The main thing that ClearPlay does for us is that we can rent a movie that we aren’t very familiar with and be certain that we and our children will not be exposed to profanity, violence or nudity. I agree that this still doesn’t protect us from bad movies, but there are many good movies that are marred by scenes or dialogues that seem completely unnecessary and seem to have only been put in to achieve a certain rating, as if the marketing dept. told them to do it.
We also don’t usually use it on movies that we own. We mostly rent the movies that we watch, especially because we don’t want to invest a great deal of money into a movie before we’ve determined that it is worth owning.
The point I was trying to make was that if i cut stuff out, I am changing the artistic vision of the movie makers. The picture might still be there, but what I was trying to say, what I was trying to express, has now been damaged. With fastforwarding and stopping, you are making a conscious choice to alter the worker’s art. But, with this, it may not be known.
You have the right not to watch it at all. You have the right of a fastforward, and of this technology. But I think it is immoral to trying and chop and slice someone’s work and still think that it’s their own.
Anybody watch Daria? Probably not, considering the company. But, in one of the episodes, Daria and her friend Jane draw a picture of a pretty girl and put a poem with it. The poem goes (and this is memory, but this is the gist) “She looks so pretty, she looks so thin// She could not be much thinner. She applies her makeup carefully// Then goes and vomits up dinner”. It was making a statement about bulimia, and pressures to be beautiful. The school tried to change the poem to: “She looks so pretty, she looks so thin// She could not be much thinner. She eats healthy every day// And that makes her a Winner!” The message was changed so that it was more palatable: same rhyme scheme, same picture, ENTIRELY different meaning. Daria and Jane wanted their name OFF of the picture.
Much the same way, I wouldn’t want someone subverting my message, yet stealing my work.
Nate, this is probably because you never actually do anything with utility maximization as a tool. At that level it is just a black box that does nothing philosophically useful. Economists use it by imposing structure on it, such as diminishing returns or stability over time, or only allowing it to depend on certain things, or whatever else is needed in the problem at hand.
But, more to your point, this is why I’d love to hear any alternative explanation of why this is a profit maximzing move without an appeal to someone’s preferences. Profit maximization, a limited version of utility maximization, is meatier empirically, and promiscuous appeals to preferences as explanations for behavior are understandably met with skepticism owing to their tautological nature.
I had a professor who, for this exact reason, was annoyed at attempts to explain charitable giving by saying that people enjoy giving money. Never mind that it probably is the truth in many cases, it was theoretically inelegant to just add it to the utility function.
Perhaps the studios should just sell two versions, one that allows tampering and one that can only be watched unaltered. If the people who wish to alter movies are willing to pay enough extra to overcome the artist’s reticience, everyone is better off. If they are not, then I guess the legislature needn’t mess with it.
This, of course, ignores the argument I made above about a social Hollywood norm against editing. In which case we could benefit from one-time legislateive action to help change the equilibrium. I am inclined to think that such a social norm exists, but I really don’t know.
“Economists use it by imposing structure on it, such as diminishing returns or stability over time, or only allowing it to depend on certain things, or whatever else is needed in the problem at hand.”
Fair enough. My point is less an attack on economics — which I think is actually a pretty good way of modeling and understanding behavior — than an attempt to get at the concepts that actually drive the model. Everyone spends so much time criticizing economics over whether or not people really are rational without realizing, I think, how thin — almost totally empty — the concept of rationality is. It seems to me that it is very difficult to be irrational in an economic sense (although I admit that it may be the case that our preferences are intransitive), so I don’t have much sympathy with the “People aren’t rational!” argument.
I assume that all of you who think ClearPlay’s filters are wrong or immoral also think movie studios and directors are wrong and/or immoral for buying a writer’s screenplay and then altering it in any way from the author’s original artistic vision.
Yeah, right.
Eric: The screenplay is not really a fair analogy, it seems to me, because the parties bargain over their respective rights and spell them out in a contract. In contrast, ClearPlay has no contract with the studios.
Nate, I think we are in total agreement here.
(But if we’re not, you must be wrong)
“you must be wrong”
Very unlikely; which leads me to believe that you agree with me.
Nate,
The question is whether I, as the purchaser of a DVD, have the right to alter the artistic vision of the director when viewing the movie.
If I do, then I am in the same position as a director who changes the artistic vision of the screenwriter.
And if I do, then ClearPlay’s lack of contract with the studios is irrelevant. They are merely acting as my agent in altering the artistic vision for my viewing pleasure.
If I don’t, then DVD players should only have a play button, because once the movie starts it would change the director’s artistic vision if I fast-forward, rewind or stop the movie as it plays. And the TV’s volume and mute buttons should be disabled during playback, so I can’t interfere with the sound as envisioned (enhearinged?) by the director.
But, contractual issues aside, I just find it funny that people are getting so worked up about preserving the artistic vision of directors, who seem to have no qualms whatsoever about reshaping a screenwriter’s artistic vision.
#93.
“But, contractual issues aside, I just find it funny that people are getting so worked up about preserving the artistic vision of directors, who seem to have no qualms whatsoever about reshaping a screenwriter’s artistic vision.”
The difference is that after negotiations, the director in effect “owns” the screenplay. The screenwriter gives up creative control, contractually. Usually. A noted exception: JK Rowling. She retained creative control of the Harry Potter movies, not just of the screenplay, but down to selecting actors and actresses. It is all part of the contract. There is no such agreement between ClearPlay and the movie industry.
#7 “My question is this: Will the ClearPlay be able to filter out the objectionably stupid Jar Jar Binks from the new Star War movies…?”
SPOILER AHEAD: Maybe ClearPlay can edit him out, but this will cause havoc with the soon to be released movie. I have it on good authority that Jar Jar Binks is scheduled play an integral part there. One huge bombshell will hit theaters when it is revealed that Binks, not Darth Vader, is actually the father of Luke Skywalker.
obi-wan (#66)
Here is the statute: “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (2) to prepare derivative works based upon the copyrighted work….”
The definition of “derivative work” is as follows: “A ‘derivative work’ is a work 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. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’.”
Under your reading, my reading to my children is subject to the control of the copyright owner. Good luck with that reading of this statute. Perhaps you would also contend that reading the book to myself is a derivative work. Stretching the statute to cover these activities makes the concept completely vacuous.
I hate to jump in so late on this post, but really all ya’all need to remember is “money talks”. If you don’t like the values shown in a movie, magazine, C.D., etc… don’t patronize them! I don’t buy rap albums and bleep out all the naughty words, I just don’t buy them in the first place. I eliminated (at least a little bit of) the demand for the rap album. If enough demand is limitted, they will stop. Or, find a way around the ‘system’. Example: I wanted to see Micheal Moore’s Farenheit 911, but I did not want my money to support him. I waited untill someone I knew rented or bought the film and asked to borrow it. Heck, this was a FREE way for me to discover that after 20 min. of stupidity I couldn’t even enjoy this artistically superior masterpiece without banging my head against the wall. But I digress, the most effective way to control Hollywood and the content veiwed in your home is to not patronize questionable media. This is why I don’t have cable television but do watch Joseph and the Amazing Technicolor Dreamcoat untill my DVD player melts the disk. : – )
Nate Grow writes The statute may not say it, but Galoob and Micro Star interpret it that way. Also the House Report for the Copyright Act clarifies that Congress intended to make a fixation requirement for the derivative work right.
Quite the contrary:
“Preparation of derivative works.–The exclusive right to prepare derivative works, specified separately in clause (2) of section 106, overlaps the exclusive right of reproduction to some extent. It is broader than that right, however, in the sense that reproduction requires fixation in copies or phonorecords, whereas the preparation of a derivative work, such as a ballet, pantomime, or improvised performance, may be an infringement even though nothing is ever fixed in tangible form.”
H. R. 94-1476 94th Cong., 2d. Sess. 62 (1976)
I’d say that Gordon’s hypothetical adaptation pretty clearly qualifies as an “improvised performance.”
Galoobis clearly wrong on this point. Rather than try the patience of the non-lawyers, we can discuss in another forum whether Microstar perpetuates the Galoob error.
Gordon — Sorry if you don’t like the statute. My reading is the reading outside the 9th Circuit, and after Microstar, maybe inside the 9th Circuit, too. Under the plain language of the section 101 passage you quote in your post, your reading to your children transforms or recasts the work — a derivative work, which as the legislative history indicates, need not be fixed in a copy or phonorecord (you might care to check the section 101 defintions for those terms). For that matter, reading the book to yourself might transform or recast the work, too. Probably the copyright owners will never know, so as a practical matter you won’t get sued. And as Nate Grow points out, you might be saved by fair use. But don’t commercially circulate your Redaction Guide the way that ClearPlay does.
obi-wan, I suppose that if I asked you about the speed limit on I-80, you might respond that it is 65 mph, but if someone driving 66 is never ticketed, I don’t know how meaningful it is to claim that 65 is the speed limit. Moreover, if you imagine the case where a policeman actually wrote a ticket for someone who was driving at 66 mph, my guess is that the traffic judge would waive the ticket. That was basically my point about reading to my children and the Copyright Act. My experience with courts is that the statutes are typically not taken to their silliest extreme, even if the literal reading would justify it.
How did we get on this anyway? Oh yeah, I was asking why PF felt that ClearPlay’s activities would seem “wrong.” Well, we have beat that horse to death, I suppose.
If I remember correctly, President Kimbal stapled shut the Song of Solomon in his Bible. Others following his lead and also stapling the same pages strikes me as an analogous situation.
If those that produce movies want to tightly control how they are view they are free to do so. They can simply only release it to theaters that agree to show it on a certain size screen, with a certain brightness, and with the air at a certain temperature. They could also dictate what food could be eaten etc. The theater would be responsible for enforcing this agreement. Studios or directors could have total control over the viewing experience.
However, they are so anxious to take my money that when I buy a DVD that they don’t bother to enter into any such agreement. So I can view it however I please in my home. Standing on my head, in slo-mo reverse, with a hotdog in each hand. If someone gives me some help in automating the process of viewing it how I please I don’t see what harm is done, especially if the original is untouched. Again this is analogous to someone giving me instructions for which pages of a certain book to staple shut.
“Filtering” programs in the future will be even more powerful. You can certainly imagine having a file that describes all the content (not just what might be offensive) and then using style sheets to view it as you please.
Stapling shut the Song of Solomon? Wow! Though it may not be scripture, I find it absolutely beautiful, both as human love poetry and–as most have read it for a couple of thousand years–as a lengthy poetic expansion of the metaphor in which of Israel is the bride and Christ is the bridegroom. I prefer other translations of the Song to that of the KJV, so I might replace that part of my Bible with another translation, but I wouldn’t staple it shut. If you find it offensive, try reading one of the Puritan or medieval Catholic commentaries on it. They can help give us new eyes with which to read the Song.
What ever happened to the THEATRE? There will always be a safe venue for “art”. Unless, of course, you’re talking about something like “Land Before Time CCCXXVII The Great Asteroid” which is a straight to video/DVD release.
Jim,
I’m not saying I think stapling any part of the scriptures is a good idea. Honestly the thing about Pres. Kimball it falls into the category of mission rumour so I don’t put much stock in it, but it illustrates the point well enough.
I should try reading the thread a little before I post. a random John said it better than I.
Drumroll…I agree wholeheartedly with Nate.
I’ll admit, I think people who embrace things like Clearplay are engaging in a “have our cake and eat it to” endeavor. If the movie is offensive, don’t watch it.
But once they’ve purchased the movie, shouldn’t they be able to watch it however they want? If I buy a painting and take it home, can’t I scribble all over it? Sure, I can’t scribble, then make copies and sell it (which is what Clean Flicks seems to be doing), but I can do whatever I want to my personal copy.
Lastly, the artistic integrity comment is pretty lame. That’s like saying I can’t buy a book and tear out certain pages. I might be a loser if I do that, but I’m not breaking the law or ruining someone’s “art.” Not to mention the joke of labeling 99% of what passes as film as “art” in the first place…
Pink Floyd,
> The difference is that after negotiations, the director in effect “owns” the screenplay.
And after paying for the DVD with my credit card, I in actuality own the DVD. If I choose to set the DVD on fire, the director and the studio can’t stop me. If I choose to shred it and eat it with cornflakes, it doesn’t matter whether that clashes with the director’s so-called artistic vision. If I choose to play the movie with the sound off while listening to “Weird” Al Yankovic songs, that’s my choice. If I want to watch the movie at 16x speed, I can, and it doesn’t matter if that messes up the director’s slow-motion sequences. And if I want to press the mute button whenever Jar-Jar is onscreen, George Lucas can scream at me until he’s blue in the face, but he has no recourse. I’m not allowed to copy the DVD nor show it in public, but other than that I can pretty much do whatever I want with it because I bought it, so it’s mine.
You’re right that a screenwriter generally has little control over the final product. You can bet most of them would rather not give up control, but the reality of power in the movie industry is that the vast majority of writers must give up control if they want to sell the screenplay. If they don’t want a director to mess with their artistic vision, then they can simply refuse to sell their screenplay.
In the same way, studios and directors who don’t want consumers to mess with their artistic vision can simply refuse to sell their movies on DVD. Now, you might think that’s a little harsh on the studios and directors, but at least they still made money on the theatrical release, whereas the average screenplay writer gets zip if he’s not willing to give up control of his artistic vision.
So you’re right, it is different. The screenplay writer deserves more sympathy from all of you who are concerned about tampering with people’s artistic visions.
> Sure, I can’t scribble, then make copies and sell it (which is what Clean Flicks seems to be doing),
This is slightly misleading, as it implies CleanFlicks is offering its scribbled-on copies in competition with the original. It’s more like they sell you an original plus a scribbled-on copy.
But I agree that the CleanFlicks model is more problematic than ClearPlay, because CleanFlicks is making a copy — the very sort of thing copyright is named after.
No one seems to be recognizing the fact that the technology that ClearPlay offers is of a different kind that the examples that are being offered up as analogies, which I think is a part of the reason there is so much disagreement on what should be a relatively straightforward issue. Stapling books shut, putting post-it notes in books, blacking out words in a book, tearing pages out of a book, pressing fast-forward or mute on the dvd/vcr — all of these methods of changing or editing the reading/viewing experience leave highly visible traces of themselves, meaning that the consumer cannot help but be aware of the fact that what they are experiencing is in some way other than the original producer intended.
ClearPlay’s technology, as I understand it (I have not used it), is appealing in part because it eliminates the traces, more or less. Offensive words are muted, but there’s no reason the technology can’t be changed to provide an alternate second or two of voiced-over dialogue to fill the gap, as is done for broadcast performances of such films. And scene deletions or resequencings can be more or less seamless. I’m sure the current technology triggers a pause here or there, but this doesn’t have to be the case. A good implementation would pre-read the movie and buffer it to provide seamless playback.
At any rate, the technology affords us an experience that up until now had been possible only through the processes of editing and copying, so naturally, that’s how we initially try to understand it. Upon further examination, the edit/copy model is found to be inappropriate for modeling the ClearPlay process, so we reject it and say that ClearPlay should be allowed to conduct business as it pleases. I claim that this response is inappropriate as well, because ClearPlay inhabits a new space heretofore unimagined that forces us to reconsider what we mean by words like copy, original, copy, intent, edit, and the rest of the vocabulary that we’ve been tossing around here.
Sure, the DVD owner has the ability to recover the original signal at any time. However, by using (a hypothetically perfect implementation of) ClearPlay, the viewer has no idea at what points the received signal differs from the original signal. This, in my view, places the work in a new category — it’s a kind of derivative work, but one which does not rely upon copying or redistribution of the original. It should be attributed as such. ClearPlay tries to claim otherwise; quoting from the blurb cited by Gordon in the original post, ClearPlay claims that “great care and effort is taken to ensure that although certain content is removed, the continuity of the story is maintained, and the presentation retains its entertaining value.”
One existing partial analogue to what I am describing is the staging of a well-known Shakespearean play, in which the director chooses to delete some scenes, rearrange the order or others, and assign speeches to characters other than the ones indicated in the text. We understand the play to be “by Shakespeare” at heart, but the interpretation belongs to the director, who receives appropriate credit.
Gordon Smith: My experience with courts is that the statutes are typically not taken to their silliest extreme, even if the literal reading would justify it.
You don’t do much intellectual property, do you, I say wryly.
Believe me, the Microstar opinion goes to a very, very silly extreme, and it is by no means the most tortured reasoning I could show you.
But, as much fun as this has been, I really am going to have to do some paid work now. How do you people have time for all these threads?
Bryce,
Re: #108
That’s a very good point, one I had not considered. I’ll have to think on it a bit.
Kaimi: Well, there you have it. Obi wan and others (maybe it’s both sides? I think one more than the other) are belated proof of your previous argument that Mormons will demand that market mechanisms trump over, what was it, morality?
Bryce, I don’t think your concern with people getting the wrong impression of a movie is compelling. People who pay for the ClearPlay service understand that the films they see differ from the original on the DVD. Since consumer DVDs are licensed only for private use and not public performance, everyone who might watch the ClearPlayified version should be a close personal associate of the DVD owner and ClearPlay subscriber, so that they too might reasonably be expected to be aware of what they are seeing. The licensing requirements of DVDs should take care of your concern about uninformed viewing.
Not, of course, that I know a thing about IP law, and I’m finding new surprises every time to I check this thread. Obi-Wan, don’t hold back on the details; it’s fascinating to eavesdrop on this conversation between lawyers. I appreciate and sympathize with Nate Grow’s arguments to the contrary, but I have no way of evaluating them; ObiWan maintains that there are legal arguments for regarding parental editing of children’s books as a violation of IP law, Nate Oman seems undecided on the point, while Gordon Smith disagrees but can’t dismiss it out of hand–which tends to confirm my impression that “don’t get caught” is the best approach of an informed citizen to the legalities of intellectual property.
So what I want to know is: will ClearPlay work with the XviD-encoded DVD rip of “Starship Troopers II,” once I download it? I bet that movie would be really great without the swear words.
One last question before I go to semi-permanent lurking mode again:
ClearPlay is now (almost) legal. Can a “ClearPlay” movie theater be opened? That is, can a theater owner open and advertise that he will show ClearPlay edited movies to the public without permission from the studios? DVD’s can be projected in a movie theater setting, although the quality is not as good. (We’ve done the Church DVD’s in the chapel.)
Is this different than the Varsity Theater?
Jonathan —
You’re not quite getting my point. I’m not arguing that ClearPlay users won’t be able to recognize that they are seeing an edited version of the movie — that goes without saying. I am arguing that they are not seeing the equivalent of a fast-forwarded, muted performance, but rather a new, derivative work, one that does not require copying, and that we generally do not have sufficient understanding of how this affects our thinking about who owes whom what, who owns what, and the rest of the legal mumbo jumbo.
I’m actually not against ClearPlay as such, just the marketing of it as an innocuous profanity/sex filter. It’s much, much more than that. If ClearPlay is legal (and I don’t know of a good reason why it shouldn’t be), then there’s nothing preventing someone from releasing a filter that produces The Phantom Edit from your personal edition of The Phantom Menace.
Pink F: the statute (link provided by Gordon in the initial post) uses the following limiting language: “by or at the direction of a member of a private household … during a performance in or transmitted to that household for private home viewing.” Thus it appears that there will be no legal Clearplay theatres under the legislation.
Would this practice (public projection of ClearPlay-edited movies, comment 113) be different from that employed by the Varsity? It woiuld seem to me that the answer is “Yes”–assuming the old Varsity followed the same policies as IC. When editing was done at IC it was done with distributor permission in accordance with the exhibition and advertising rights extended to IC as part of the film rental fee. Wouldn’t the public exhibition of movies outside fair use parameters in a form other than that contractually permitted and/or without having secured the exhibition rights violate copyright?
I enjoyed being able to watch movies that were edited, but I felt conflicted about it, sort of guilty at the same time. It’s sometimes not only the language or the violence or the nudity, there’s a tone.
I don’t watch R-rated movies, because I was traumatized by the movie Seven, but I’ve wondered if I could watch comedies. I’m discussing this with the Lord.
Bryce,
Who cares if the instructions are carried out manually or done for you automatically? The distinction seems artificial. If you want a current situation that seems similar, consider a DJ in a club mixing tracks as he goes, changing the tempo, adding beats, etc. Of course that is a public performance, so it is even worse than watching a changed movie in your own home, right? In any case I still think that analogies to books are valid. Instead of staples of ripping out pages you could just have a list of instructions telling you what to skip, or even telling you how to skip around. I don’t see how the extra step of automating those instructions suddenly changes things. I guess I don’t see what the line is that you are drawing and during which example it is crossed.
a random John —
The distinction isn’t between automatic and manual, it is between visible and invisible, the point being that up until now to get an invisibly edited movie, you had to make a copy of it, and we had specific rules governing that situation. Now that we can make invisibly edited movies without copies, those rules don’t have their intended effect.
Think of it this way: ClearPlay allows you to make your own cut of a movie without altering the original. I don’t think it’s hard to argue that a different cut of a movie can create an essentially novel viewing experience — Hollywood exploits this already by marketing “director’s cut” DVDs, or rereleasing new cuts of old movies (Apocalypse Now Redux). Now, suppose lots of people have ClearPlay machines, and there is a publicly available API or language for creating your own specifications for a particular cut of a DVD (if there isn’t, no problem, since someone is sure to deobfuscate the thing). I can 100% guarantee that a community of DVD users will spring up that trades customized cuts of films, where the cuts are nothing more than a set of ClearPlay instructions. My contention is that those instructions are in and of themselves new pieces of creative output (I’m trying to stay away from the language of art, since there are many legitimate non-artistic uses of visual media that would be affected here), but that we don’t have the means of talking about them yet, since our idea of creative output is still tied a physical conception of film. Each new ClearPlay filter is, when combined with the appropriate source material, a new movie. Until everyone starts recognizing this, we’re not going to make any headway in these debates.
Some really cool filmmaker is going to realize this soon (actually, I’m sure many already have) and issue a make-your-own-film DVD. Eventually, all DVDs (or whatever new medium takes its place, since DVDs aren’t quite up to the task) and their associated players will have the capability to easily produce customized cuts of a film. It’s inescapable.
The list of instructions book analogy isn’t the right one — with the list of instructions in front of me, I know exactly what changes are being made, and where, and furthermore, implementing them takes time, and interrupts the natural flow of the text. In fact, there is no appropriate book analogy, which is exactly my point — up until now, these issues have not arisen, because there was no technology capable of providing “edited” material invisibly.
BTW, I really like the new Battlestar Galactica. Thanks much.
Bryce, I think adequate analogies and vocabulary are available in the realm of computer game modding. There too we have an original creative work in a digitial medium, new instructions that can be inserted, and the result of a much different aesthetic experience. ClearPlay would be the DVD equivalent of a plugin for a new weapon, or a user-designed map, or a cheat that offers the player godlike abilities–all of which can run counter to the gaming studio’s intended gameplay experience. These days, most game producers are embracing the enthusiasts in the modding communities; maybe, like you suggest, film studios will eventually do the same.
> the point being that up until now to get an invisibly edited movie, you had to make a copy of it,
Actually, that’s not true. You young whippersnappers with your DVDs don’t know any better, but back in the olden days we used to buy movies on what was called a “videotape.” With a little skill, a sharp knife and some tape, you could physically splice the videotape to edit a movie. That did not require making a copy. If done well, splices at scene breaks would not be noticed.
EJS–
True. I should have said (and have said elsewhere) invisibly edited, while preserving the original.
So do you have experience with this? Sounds like fun.
Jonathan–
You’re right. I thought about modding and skinning as well– there are definitely lessons to be learned there. There are some differences as well, but I have to think a little bit.
Bryce I,
You’re welcome!
I guess now I don’t see the distinction between automatic and invisible. Being automatic is what makes the changes invisible. As others have mentioned, it was possible in the past to make the changes without making a copy, in fact this was the default way of doing it. Who is to say that I can’t splice a VHS tape that I own any way that I want? I own the physical tape. The difference is that now you can do this without physically altering the media that you own.
A while ago a coworker and I made some progress on hacking a software Linux DVD player to be able to skip scenes according to a script, so I have some knowledge of what such a script might look like. To me the changes wouldn’t be invisible since I could read the script/filter and understand what the output would be.
You are right that there are very powerful things that could be done with this techonology, with “remixes” that will surprise everyone. Again, this is something that was always possible, but now is much easier to do. I think we would all be well served (content producers too!) by not restricting this ability to do these things easily and seeing what happens. If the results turn out to be harmful then let congress act, but wait for results. Hollywood has a history of fighting consumer innovation tooth and nail only to make billions of dollars of it when they finally give in. For them the sky is perpetually falling, but what is really happening is that it is raining money.
> So do you have experience with this? Sounds like fun.
I did it a couple of times with homemade videos. I assume it’s a lot easier with proper equipment.
Are these movies really “less objectionable” just because we cut the profanity and a couple sex scenes?
I remember watching Courage Under Fire in the Varsity Theater at BYU (back when they still showed edited movies). It was almost funny at some points because the profanity was so pervasive that people’s lips would be moving for a full five seconds without any sound coming out. Yet the message was still apparent to me.
I thought the movie was quite good, but I couldn’t escape the feeling that I’d still exposed myself to a certain intensity that was projected clearly even though the curses were muted.
You know the Asian concept of karma? Maybe this helps explain what I’m trying to convey here.
It almost seems like these “edited” movies still retain the same karma they had when they were created. That’s what it felt like watching Courage Under Fire. The movie still had the same spirit about it that had on release day (or so I guess). I felt like it rubbed off on me even though I was complying with the legal technicalities of church standards.
I don’t necessarily regret seeing it. But I can’t help but feel the effect on me would have been the same if the profanity had been left in.
I don’t know. This whole edited movie craze that seems to be sweeping Utah just seems a little disingenuous to me. Sort of like “near-beer” or something.
“If I buy a painting and take it home, can’t I scribble all over it? Sure, I can’t scribble, then make copies and sell it (which is what Clean Flicks seems to be doing), but I can do whatever I want to my personal copy.”
True enough. If you purchase the original Mona Lisa, you could take out your trusty Sharpie marker and draw on some nice horns and a mustache and a goatee and be perfectly within your right to do so. But I would guess that the value of the painting would be somewhat diminished in the process. If you then tried to sell it as daVinci’s Mona Lisa, you wouldn’t be acurately describing the product. And if Leonardo were alive, I’m sure he would have a problem with you using his name to sell your altered product. It is no longer a daVinci.
Peter,
Assuming that you could buy the Mona Lisa, you couldn’t deface it according to French law. Or at least that is my understanding.
Re: Seth (#126) — I’m so glad you brought that up! In viewing “edited R” movies, which my hubbie and I occasionally do, we’ve noticed that only one (possibly two) has really had any redeeming value or been uplifting in the least — and those only after the initial “eek” had worn off. The rest have done a pretty good job of driving the spirit right out of the house, at least for the duration of the movie. It’s tough to admit, (although obviously not that tough ;-), because we persist in trying (that naive hope that “maybe this one is good!”) *sigh*. If the director/whoever is competent, they’ve infused the message into the entire movie anyway, (for better or worse), even if the “so, boys and girls, the moral is…” scene is missing. “Karma” or “aura” or whatever you call it, the spirit that goes into making the movie — good or bad — stays with it. And that’s probably the bigger deal to consider.
I can think of three R rated movies which I’m really really glad I watched, probably could come up with many others: The Killing Fields, Children of a Lesser God, and The Shawshank Redemption.
Also a lot that I wish I hadn’t seen. I could say that about G rated, as well.
I tend to sympathize with what Bryce I is trying to say. This is a whole new world of IP issues that can’t be easily compared to past standards of “editing” or “changing”. And the whole mentality of “but private viewing is ok and different than public viewing” is kind of weird [for me] because as mentioned in some comments, there is a lot of gray area when considering what constitutes “private” (i.e. Club DV8 in SLC (where bands play, drinks are had, etc.) is a private club for members, which is super easy to join and is really more public even if technically “private.” Can I start “Bob’s Movie Club, a private club for members” and show whatever edits of movies I want?)
And although I think modding is really cool and would get more into if I had the time, I still see it as not very analogous with movies. Game companies seem to embrace the idea because their core engine is showed off in new ways that are usually impressive in their own right while intrinsically still giving quite a bit of credit to the original creator. Movies, on the other hand, don’t have a core engine, which can be intrinsically preserved when altered. Hmm… This is a difficult thought to develop. It basically hinges on the fact that movies generally have story, plots, characters, a message, etc. Although games can have all those things too, generally that’s not what new game developers are interested in manipulating when using another game’s core engine.
help me make a movie plz
Matthew,
This is what you–
Get a good video recorder with the latest editing software, throw together a cheezy script about teen-love with lots of silly one-liners, use only the latest pop music for the score, and presto! You have a movie.