Sometimes Unintended Consequences Can Be Good

When President Bush signed the Family Movie Act last week, he might not have realized how broad its provisions actually are. In Forbes, Stephane Fitch explains how the new law "passes some of the control over how movies are edited to you and, hypothetically, a mini-industry of movie remix artists."

[Via Virginia Postrel.]

Comments

[Phil]

As a general observation, in the sentence, "When President Bush signed the Family Movie Act last week, he might not have realized how broad its provisions actually are," you can replace "the Family Movie Act" with "X" and the statement will still be true for all X.

It's kind of telling that, last fall, Congress was seriously considering as part of a major telecom bill making it illegal and punishable by a major fine for consumers to use software or hardware for the purpose of skipping commercial messages at the beginning of DVDs; but it fell all over itself to accommodate consumers who want to use software or hardware to skip boobies and swears.

[Evan Williams]

Phil:

What if it was a commercial, for boobies & swears? Holy shit, I can see the smoke coming out of their ears right now.

I'd like to see more of these positive unintended consequences. Hey, Ron Paul's staff, are you listening? Go, now, buy some ski masks and white-out. Oh, ho ho, hidden deep down in one of them omnibus bills, overflowing with bloated pork projects for the Senators' home states, I'd love to see a provision that abolished the BCFRA, or the prescription drug benefit, or the IRS.

[Eddy]

Die Jar Jar, die.

[Mr. Nice Guy]

Initially, on an aesthetic level, I was very irritated by people who would fuck up an original artistic piece because they are offended by potty-mouth and boobies. I mean, they've been doing this for centuries.. think of all the artwork that had fig leafs painted over them by later generations.

But then I read this:

"There's a proven market for these kinds of edits; witness what happened to George Lucas' Star Wars: Episode I--The Phantom Menace. In 2001, an alternative version of Lucas' unloved sequel, called Episode 1.1--The Phantom Edit, created a sensation among fans of the 1970s original. Created by a fan, the edited version cut 20 minutes from the film. The excisions all but deleted a dopey character (Jar Jar Binks) and got rid of several other annoyances, like Anakin Skywalker's shouts of "Yahoo!" and "Whoopee!" during the movie's pod-racing sequence."

This gives me pause. George Lucas died after Empire Strikes Back and was replaced by an evil clone whose sole mission is to destroy all that made those first two movies wonderful. Seriously, the "force" is actually a bunch of micro-beings that live in our blood? What the fuck?! Evil clone.. definitely.

[R C Dean]

Mr. NG - its all very well to be irritated at an aesthetic level, just so no one tries to elevate their fit of aesthetic pique into a legal prohibition.

[Mr. Nice Guy]

RC:

True.. thus my term "aesthetic". When a person buys something for their own personal consumption than they certainly should be free to do what they want.

I wonder if anyone ever tried to delete the curse words from "Scarface"? I would like those Flanders' to take on Deadwood, too 🙂

[Seamus]

Actually, Lucas died and was replaced by an evil twin after the original Star Wars movie -- what the twin renamed "Episode IV: A New Hope." C'mon, folks; it's pretty clear the real Lucas hadn't the slightest intention of making Vader the father of Luke and Leia. But for some yet unexplained reason, the evil twin thought that would be a neat plot device. You know, kinda like finding out that Flash Gordon is the long lost son of Ming the Merciless. Or that, back before Krypton exploded, Lara cheated on Jor-El with a guy who later came to earth and became Lex Luthor, the nemesis of their love child, Clark (Kal-El) Kent.

[Eddy]

fuck up an original artistic piece because they are offended by potty-mouth and boobies

Nobody is talking about painting over the Mona Lisa. DVDs are copies and the changes are done on the fly so the original isn't changed. It's closer to a picture of the Mona Lisa behind a glass pane that you write on with dry erase marker while you look at it. The original painting hasn't changed, the picture of the painting hasn't changed, only the 'lens' has changed and it is only temporary at that.

I do have to agree with you on the fig leaf thing, but then it was the dark ages. What scares me is that, some days, it seems the darker ages are ahead even if navels aren't airbrushed out.

[mediageek]

Waitagoddamnedsecond...

So this law makes it legal to essentially re-edit* a film and sell it for profit without having to compensate the original creators?

Geeze, and to think how all the neo-cons got bent out of shape in the 80's and 90's over hip hop artists sampling others' music, sound, and dialogue.

*No, I don't give a damn if it's done on the fly, preprogrammed into your DVD player by a bunch of neo-con monkeys, or done after the fact using a pirated copy of Adobe Premiere.

[Jaybird]

The neocons were all over hip-hop editing in the 80's?

What position did the paleolibs have?

[Phil]

C'mon, folks; it's pretty clear the real Lucas hadn't the slightest intention of making Vader the father of Luke and Leia. But for some yet unexplained reason, the evil twin thought that would be a neat plot device.

Yes and no. In his original story treatment for "The Star Wars," or "The Adventures of Anakin Starkiller" as he was calling it at the time, there were all kinds of those intertwined familial relationships between the heroes and the villians just like that. When it became clear that he'd be given the chance to make one movie, on a relatively low budget, he picked and chose elements to make what he felt would work as a complete, standalone movie. Then, given the chance to make sequels, he went back and recaptured some of the elements from that treatment, working them in to the framework he'd established in the first film. Some worked, some didn't; there are drafts of Empire in which Vader is not Luke's father, but I don't think it's in itself a bad idea.

Mr. Nice Guy, the same person has recently released his own edit of Attack of the Clones, but from the description I've read, doesn't really understand what he's doing. He shuffles plot elements around, and eliminates some, in ways that show that he doesn't realize that some of those threads exist to be resolved in the upcoming movie. For example, said editor apparently provides a commentary track in which he mentions trying to shift things so that the Separatists are the beginnings of the nascent Rebell Alliance. Well, they aren't, and they aren't for reasons that will be obvious in the next movie.

[Franklin Harris]

I want movies re-edited to include more boobies.

[Warren]

This is another illustration of how life, liberty, and the pursuit of happiness would best be served by doing away with copyright altogether.

[ed]

Meanwhile, back at the why-nobody-takes-libertarians-seriously debate...

[mediageek]

The neocons were all over hip-hop editing in the 80's?

What position did the paleolibs have?

To be honest, I have no idea if it was the doings of neo-cons who were scared of black culture, or IP lawyers who saw the potential for lots of fat, juicy settlements. Regardless, it makes for a good sound bite. 🙂

To be completely open about it, I have to admit that in the 1980's I was still running around in Transformer Underoos and watching GI Joe cartoons.

[Mike H.]

Tipper Gore should die of gonorrhea and go to hell!

[mediageek]

In other news, I have just realized that you have to use the italics tag on seperate lines of text if there is a line break.

Learn something new every day.

[Eddy]

What we need now is a player that will take several DVDs so we can have some real fun and drop Lara Croft and Jar Jar into a deathmatch as Michael Corleone and Tony Montana. I can hear it now
"It was you Fredo. I know it was you. You broke my heart."
"Say hello to meesa leetle freends"

[Rhywun]

Aho successfully lobbied to create the Family Movie Act

How do I go about lobbying the government to create the "Give Piles of Dough to Rhywun Act"?!

[James Anderson Merritt]

Both Postrel and you Reason Hit-n-Runners seem to have missed the rest of the iceberg in your examination of "the FECA matter."

Not only does the law make legal the de facto creation of new editions of copyrighted works of art for commercial profit, it also turns certain violations of copyright into federal crimes that carry real prison time as penalties.

Can you imagine going into the federal slammer for using a camcorder in a theatre? How about for distributing copies of a pop song that hasn't yet been "officially released" by the associated record company? Does imprisonment make sense for these crimes? Yet, that is what FECA now authorizes.

In the days before FECA, copyright law concentrated on harm and restitution: the purpose of the law was to make sure creators got paid, and that the integrity of their artistic work and reputation were protected. With FECA, the law is moving toward punishment and retribution, even for violations that might not involve any true harm to the copyright holder at all.

I believe that copyright must continue to be about making sure that creators get paid and retain control over their creations, not about tossing people who use camcorders in theaters into the federal pokey, where they're more likely to become victims of violence themselves (including "pokey" from Bubba).

Mr. Bush had no excuse for signing this bill, at least in the sense of not knowing what he was signing. I personally sent him a letter in opposition, laying out, as briefly as I could, some of the flaws of the legislation and asking, in no uncertain terms, that he veto the bill. I doubt I was the lone dissenter on this issue; if he didn't read my letter (likely!), he must have received similar analyses and warnings from others who have more access to the Oval Office.

I'm actually rather angry at you Reasonoids and Ms. Postrel, for concentrating on the surface aspects of this thing, when what lies below seems a lot more troubling. You mock the apparent lifting of copyright protection but seem to have nothing to say about the federalization of even more crime, not to mention the "creation" of a new class of federal criminals who are subject to imprisonment.

As long as the rubes keep being confused by the names of bills and their ostensible "feelgood" purposes, we will continue to see government turn the screws on the people, via the "hidden" (or, to be fair, simply unpublicized and unexamined) provisions of those same bills. Remember HIPAA? It sure sounded good to have "health insurance portability" and information "accountability" in the medical arena. But the consequence was to establish a choke-point on the healthcare industry by controlling the format and flow of information. Don't even get me started on P.A.T.R.I.O.T. FECA is cut from the same deceptive cloth. It's bad law to begin with, and we can expect its provisions to be expanded (or more broadly interpreted and applied) with the passage of time, just making things worse.

[Jeff]

Perhaps the Hitchhiker's Guide movie could be remixed so it contains actual humor...

[Born Again Iconoclast]

Interesting. I know when I first read about this new strangulation, er um, regulation, I thought, well this is going to be interesting from an IP point of view.

Exactly who gets this newly created "right" to "edit" and distribute an altered copywritten work? The studio over the director or producers?

And why did our idiot government officials think this needed to be enacted through law, rather than let the free market decide the matter through the creation of special products and distribution channels for those who desire "family edits"? (wasn't Wal-Mart already doing this with CDs? THEY didn't a federal law!)

[Lazlo Nibble]

...You mock the apparent lifting of copyright protection...

Exactly who gets this newly created "right" to "edit" and distribute an altered copywritten work?

Nobody loses copyright protection, and nobody gets the right to distribute an altered version of someone else's copyrighted work. This provision of the FMA "legalizes" the existing market for DVD players that can be programmed to skip certain parts of a standard, studio-issued DVD during playback.

The provision is meant to end studio-initiated lawsuits against the companies that provide the DVD players and edit lists that make this possible. In fact, these folks were already well within the bounds of US copyright law before the FMA was passed -- the editing decisions are made on the fly during playback of the DVD, so no copy is ever created of the altered version of the film. No copy made, no violation of copyright.

[Larry A]

1. The movie industry's campaign against "cleanup" editing, where they claim, "We can't allow anyone to make a single edit because that would change the artistic elements of our sacred productions!" would be a lot more believable if the same folks weren't promoting DVDs that are colorized, letterbox/fullscreen, director's cut, unrated version, european edition, and so forth. I notice they also don't object to content/time editing of their precious films if they're getting them shown on TV.

2. As soon as someone uses this legislation and technology to market an "all the raunchy parts" filter the present "consumer choice" advocates will have a cow and demand it be banned.

3. If the Hollywood suits were smart they'd jump on the bandwagon. Then they could say, "Okay, we did an edition for you families. Now don't bitch if we do one for the folks who would rather go the other direction. (Not that the "family" types would actually quit.)

[Lazlo Nibble]

Also: BIA, Wal-Mart doesn't edit the CDs they sell. The labels release edited versions on their own because if they didn't, Wal-Mart wouldn't sell the albums in question at all.

There's one company in Utah called "Clean Flicks" that rents out DVD-Rs containing edited versions of movies. They've been mired in lawsuits with the DGA and the studios since 2002, but apparently haven't been enjoined against doing business. (Yet.) The FMA doesn't affect them, since they do make unauthorized copies of the movies they rent.

American Movie Classics is apparently running an original documentary about this issue. Oh, the irony -- I kicked AMC off my channel lineup when they started editing commercials into the movies they aired...

[Greg]

I am thinking of what my favorite movie(Blade Runner) would look like if Clean Flicks had it's way. Many of the best scenes would be deleted. Oh, I forgot. Think of the children.

The idea of altering and distributing a film for profit without the filmmaker's consent makes my skin crawl. Oh, and I think we can all agree that any legislation with the word "family" in its title should be opposed on principle.

[Jon]

It's only a matter of time until someone does a porn mash-up using a movie or TV show, and body doubles.

[Greg]

1. The movie industry's campaign against "cleanup" editing, where they claim, "We can't allow anyone to make a single edit because that would change the artistic elements of our sacred productions!" would be a lot more believable if the same folks weren't promoting DVDs that are colorized, letterbox/fullscreen, director's cut, unrated version, european edition, and so forth. I notice they also don't object to content/time editing of their precious films if they're getting them shown on TV.

That is all well and good for Pearl Harbor, but to mock the espoused "artistic elements" of film in general is a slippery slope. I wonder what Dr. Strangelove would look like if Bill O'Reilly Corporation had its way. Consent by the filmmaker is and should be required, no matter what piece of garbage is in question.

Oh, and Clean Flicks is in Utah. Where else?

[James Anderson Merritt]

Lazlo Nibble assures us that copyright is secure, and that the edit-on-the-fly technology does not create a new work. But the filter instructions themselves do seem to be "derivative works": because of them, new and distinct editions of previously copyrighted works can be performed at the will of the consumer. Remember that a PERFORMANCE of a copyrighted work is considered as a protected copy for purposes of copyright law. This is why, for instance, music used by karaoke bars and radio stations must be cleared for performance rights. Royalties are paid to the appropriate copyright holders in either case.

The reason why an on-the-fly, "filtered" edition of a movie may be protected under pre-FECA copyright law has nothing to do with whether a new edition is created by the real-time editing process. It is because of "fair use" liberties that purchasers of copyrighted works may exercise. Within the bounds of your personal, domestic domain, you can "perform" or copy a copyrighted work pretty much as you please. The problem -- which the court cases Lazlo mentioned would have tackled -- arises when a third party charges you money to deliver to you an alternative edition of a copyrighted work, or if you seek to deliver all the alternative mixes or copies that you have made to others.

Again, remember the point of copyright: make sure that the creator gets paid; make sure that the creator can guard the integrity of his or her work by, as appropriate, facilitating or preventing unauthorized copies or derivative works.

The edit-on-the-fly mechanisms allow third parties to profit on the mass-market delivery of new editions of copyrighted works. Period. When that kind of commerce is going on, the copyright holder at least should get a cut of the action, and that was a key issue to be decided in the now-short-circuited court cases.

On the bright side, I don't see a lot of difference between the edit-on-the-fly technology and the "sticky notes" comment mechanisms that people at one time offered for websites. The idea was that the user/subscriber would view websites through a "filter" that would also present "sticky note" comments that other users had "attached to" website. So, for instance, a political website, viewed through this filter service, would be "festooned" with fact-checking "sticky notes." This very promising technology was shut down several years ago, either by litigation or threat of litigation, based on the principles of copyright that are now at least blunted by the FECA act. In essence, it was argued that filtering a copyrighted website in this way was making unauthorized use of copyrighted material, even though no actual ilicit copies of the copyrighted material were EVER made. The sticky-note augmented website was a "value added" performance, rendered in real time, just as the neutered DVD movies are today. So, if FECA sticks, we may see a return of wesbite "sticky-notes." That would be a good thing to come out of all of this debacle, imho.

[Poustman]

"What if it was a commercial, for boobies & swears". That's what many movie trailers are, no? They damn sure aren't for compelling stories, 90% of the time.

Seriously, though: the idea that 3rd parties can just make their own versions of existing works, then profit, without the original creator's permission or participation in the profits, is bizarre. Doesn't this effectively get rid of copyright itself?

What if I want to change something besides boobies and swears? What if I just want everyone with red hair to have brown? Can I then make my own profit from the new 'version'?

[Luke Cage]

"I want movies re-edited to include more boobies."

I second what Franklin said.