Re: Re: Editing out offensive language from movies

On Jul 20, 2006, at 6:24 PM, Andrew SkinnerLopata wrote:

> Agenbroad, James (Civ,ARL/CISD) wrote:
>> At the end of the day, I think we have a nice balance: ClearPlay
>> is OK ; CleanFlicks is Infringing.
>
> I am curious, why is ClearPlay OK and CleanFlicks is not (from a
> policy standpoint - obviously ClearPlay is OK because Congress says
> it's OK)?
>
> Is it because CleanFlicks products (unprotected DVDs) make it
> easier for consumers to make copies and potentially infringe? Is
> it because there is no easy way to verify that CleanFlicks is
> buying one legit copy for each sale? Or is it merely because
> ClearPlay doesn't actually make a copy to work its magic? From the
> consumer's standpoint (and for that matter the content creators'
> standpoint) ClearPlay and CleanFlicks produce pretty much the same
> result. Why should the law treat them differently?
>
> I'm generally in favor of technology that gives consumers more
> options, I'm just wondering what are the policy rationales.

I see some policy and legal distinctions. First, ClearPlay never made a copy of anything, while CleanFlicks did. So regardless of the derivative works issue, the reproduction right was implicated for one and not the other. Second, at the end of the day, CleanFlicks leaves an altered work is available on the market -- a problem, even without moral rights. From copyright law, it is either a copy (reproduction) without authorization or a derivative work. For ClearPlay, neither is the case. (So for ClearPlay, you don't even need to get into fair use.) Third, if CleanFlicks copies are lawful, then Section 109 applies, and the owners can re-circulate them in the market -- trades, lending, gifts, yard sales, on eBay, to name a few. While the original CleanFlicks customer presumably knows what they are getting, the secondary markets may experience confusion (did I see the real version?). Consumers generally expect to airline movies to be "cleaned" for general audiences, and know they are probably missing scenes. The person who buys on eBay or at a yard sale may not.

But the practical distinction is, in my view, also significant. The ClearPlay technology is the high tech equivalent of a parent, having already watched a movie, placing a hand over the child's eyes or muting the dialogue at precise points -- or doing so following a menu. It is similar to my having watched a World Cup soccer match that I was recording for my son, and jotting down the minutes into the game significant action took place so he could fast-forward to the good parts. No new copy was made, and the option was there to see the original. Since no country on earth recognizes a right of private performance, no copyright interest is implicated. CleanFlicks, in contrast, is akin to photocopying an entire book and then redacting key text from the copy, then giving the consumer two copies instead of one, with no further remuneration to the copyright owner for the second copy.

So, while the same "viewing experience" may result, one was accomplished by tampering with a private performance of the work -- something excluded from copyright -- while the other was accomplished by reproducing and altering the work itself -- two interests protected by copyright. Once the viewing experience is over, the owner of the copy viewed with ClearPlay can put it back into the stream of cmmerce where others can view it just as the author intended, while the CleanFlix copy can never again be viewed as the author intended, and subsequent renters, purchaser, barterers, gift recipients or garbage pickers that gain possession of it will see only a shadow of the original work.

A good decision, in my view, along with a good legislative compromise on the other.

John

John T. Mitchell
http://interactionlaw.com Received on Fri Jul 21 2006 - 19:45:00 GMT