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July 10, 2006

Fast-Forward Considered Harmful; Hollywood Stifles Viewer Choice

You are not allowed to choose what you will and won't watch in a movie. So says Hollywood and the courts.

A federal judge in Colorado has handed the entertainment industry a big win in its protracted legal battle against a handful of small companies that offer sanitized versions of theatrical releases on DVD.

The case encompasses two of Hollywood's biggest headaches these days: the culture wars and the disruptive influence of digital technologies.

Senior U.S. District Court Judge Richard Matsch came down squarely on the side of the Directors Guild of America and the major studios in his ruling that the companies must immediately cease all production, sale and rentals of edited videos. The summary judgment issued Thursday requires the companies -- Utah-based CleanFlicks, CleanFilms and Play It Clean Video, Arizona-based Family Flix USA and the separate entity CleanFlicks of Colorado -- to turn over all existing copies of their edited movies to lawyers for the studios for destruction within five days of the ruling.

Utah's CleanFlicks, which describes itself as the largest distributor of edited movies, through online sales and rentals and sales to video stores in Utah, Arizona and other states in the region, said it would continue its fight against the guild and the studios. CleanFlicks and the others make copies of official DVD releases and then edit them for sex, nudity, violence and profanity.

Yes, I know you could spend the time yourself recording the DVD to video tape and try to hit pause/play at just the right times (though the point was not to have to view the objectionable material, even once). Yes, I know you could possibly load up the movie on your computer and, with some expensive DVD editing software cuts out all the parts you want, down to the words. Yes, I know you could spend all that time and/or money doing that yourself.

Or you could pay someone else to. Well, not according to the courts. No, all the gratuitous sex and violence is, not just artistically, but legally required for the story to be told. And no, the studios don't lose a single penny, and yes you can view the original if you really want to.

The mainstreaming of sophisticated digital editing technologies has fueled the cottage industry of movie sanitizers. CleanFlicks and others purchase an official DVD copy of a film on DVD for each edited version of the title they produce through the use of editing systems and software. The official release disc is included alongside the edited copy in every sale or rental transaction conducted. As such, the companies argued that they had the right on First Amendment and fair use grounds to offer consumers the alternative of an edited version for private viewing, so long as they maintained that "one-to-one" ratio to ensure that copyright holders got their due from the transactions. Matsch disagreed.

"Their business is illegitimate," the judge wrote in his 16-page ruling. "The right to control the content of the copyrighted work ... is the essence of the law of copyright."

Careful now, because this statement makes it sound like I can't make my own, edited copy of a movie that I legitimately purchased. If I can't have someone else do it for me, can I legally do it myself? Even if, in both the court case any my hypothetical, an original copy of the movie was legally purchased and is available with the edited version? Don't I have a choice what part of a purchased movie I choose to see? This ruling teeters on the edge of making me a law-breaker for essentially hitting the Fast Forward button on my remote.

This sort of mentality almost occurred with DVD hardware, in the ClearPlay situation. This is a device that allows you to play your DVD and it takes care of filtering it as you watch the movie. What parts to skip are download to the player, and you just hit play.

Early on, the legal sparring involved Salt Lake City-based ClearPlay, which offers video filtering software that allows for home viewing of cleaned-up versions of Hollywood titles.

ClearPlay offers software programs developed for specific titles that users can run on their computer or ClearPlay's proprietary DVD player along with an official copy of the DVD. With this technology, a nude shot of an actor can be altered to show a silhouette, or profanity can be bleeped out. Because ClearPlay's technology does not involve making an altered DVD copy, it has been shielded from the copyright infringement claims. The debate over movie content filtering activities made its way into Congress, which passed the 2005 Family Movie Act that protects ClearPlay and other software-based filtering companies. Matsch noted that Congress at that time had the opportunity to also carve out legal protections for CleanFlicks and its ilk, but chose not to.

The result is exactly the same as watching a pre-edited movie; you own the original, and you watch what you want to. It took an act of Congress to protect your right to skip parts of a movie via a hardware device. It looks like it'll take another one to protect your right to allow a 3rd party to edit it for you (or possibly to protect you from doing it yourself), even though the results of the two technologies result in exactly the same output. The fact that you can obtain a permanent copy of that output shouldn't matter and is a transparent fig leaf to hide behind.

Posted by Doug at July 10, 2006 01:34 PM

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Last week a federal judge ruled that editing offensive content such as graphic nudity and violence from movies violates U.S. copywrite laws. There has been a lot of blog discussion about the pros and cons of this ruling. Stones Cry Out is against it. Chri [Read More]

Tracked on July 17, 2006 01:39 AM


Very interesting ruling...

I am the proud father of 2 boys that like action films. I enjoy them too, but when Tom Cruse beds an attractive woman in Mission Impossible 2, it makes me VERY uncomfortable with an 11 and 8 year old watching with me.

Also makes me wonder what this added to the story line... but I digress.

I'm one of those folks that have purchased legitimate copies of films and spent the time editing the objectionable parts out, both language and sex. It takes about a half day for every film to do the work. I'm a video producer and I have the ability to do this. For those who can't, they are now stuck. If the purchaser receives a new, uncut motion picture company produced DVD along with the edited one, where is the copyright violation?

The courts have long held that we can legitimately make archive copies of software and music CDs to protect against damage. I have used my computer for years to take legally purchased music from CDs or from the iTunes Store, arrange them in different orders, delete songs I don't like and listen to only the ones I want to listen to.

This ruling not only takes away the fast forward control but it also requires us to listen to songs or watch things we don't want to.

Since we're not allowed to delete the scenes we don't like, I will now no longer purchase DVDs. Since I was buying a legitimate copy, the studios now lose money from me.

Real smart Hollywood!

Posted by: Mark Triplett at July 10, 2006 05:16 PM

So I wonder what the deal is with the edited versions that appear on TV and airplanes. Somebody edits those - probably with permission. If they made those available, maybe all would be OK. That solution is probably way too simple, can't do that.

Posted by: bruce at July 11, 2006 10:15 AM

I, like some of you, have some movies that I'd love to share with my kids but won't because of the language or for other reasons.

But I'm leery of making edits and here's why:

Suppose you created a movie about something you cared deeply about. Perhaps like one of those Billy Graham evangelical movies - the Cross and the Switchblade kind of thing.

If it's your intellectual property and you've created it the way you want, then you're glad for people to watch it. But what if someone has permission to edit the flick as they want and for mean-ness (or art or whatever), they totally adapt it, they have Billy Graham cursing out a nun or saying "Hail Satan" or something.

I'm pretty supportive of creative people's right to create something that they don't have to worry about it being changed. I suppose that's a slippery slope, and therefore weaker, argument, but that's my concern nonetheless.

Posted by: Dan Trabue at July 11, 2006 11:52 AM

I understand that consideration, and "where does it end" is a legitimate question. But when the studios themselves have edited versions for airplanes or TV, and when (and here's my big distinction) the result is no different than hitting "FF" on your remote at strategic locations, I don't see how copyright becomes the issue, whether they do it or I do it to my personal copy. Can I not black out part of a book I own? If so, can I have someone else do it instead? If so, can they charge me for their time and effort?

Adding or changing is, I think, fundamentally different than skipping. In the former cases, I think a clearer line has been crossed. You can make an artistic claim that skipping is "changing" but I really don't see the legal claim.

And again, this is all happening while I already own the full version and/or it is completely available to me while watching the edited version. Everybody gets paid, nobody is under the false impression that the edited version is the one the director released, and I get to share a movie with my kids (or even just watch it myself) that I would not have normally.

Posted by: Doug Payton at July 11, 2006 12:14 PM

We could also be having this same conversation on books too. What happens when I skip the pages I don't like? Am I now not allowed to read Newsweak and skip Eleanor Clift's column because it changes the editorial balance of the magazine's issue? Can I no longer skip the classified ads in the daily newspaper because I don't need to buy anything at this time?

As I speak now, TV networks are leaning on DVR makers to not allow users to skip commercials during the playback of recorded programming. That’s why I bought a Tivo, to skip the commercials and watch a 1-hour program in 40 minutes.

As I stated earlier, I edit DVDs for my own family’s use and I never copy, distribute or even loan the edited version to others. I have a legal store bought copy of every film I've "adapted" for family use.

Apparently the basis of this suit/ruling comes from someone else editing it for you and then selling you an uncut and a cut version.

The studios would do themselves a good service by offering a choice between an edited and an unedited version much in the way they do for full and wide screen versions of the film.

DVD technology is pretty amazing. Movies can be played back in different languages, screen shapes and the like. It is possible for the producers to release a cleaned-up version on the same disc and the user can just play the version they want.

Of course, the studios would do themselves even a greater service if they made films that were better than the garbage they usually release. But this opens up another conversation on that!

Posted by: Mark Triplett at July 11, 2006 01:20 PM