Mandatory Smut

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About a year back, I wrote about a copyright safe-harbor Congress had created to protect companies that create Bowdlerized versions of Hollywood movies for consumers who prefer their entertainment extra wholesome. The catch, however, is that the protection applies only to services that don't create any "fixed copy" of the G-rated version. So selling a DVD player that can be programmed to automatically skip past or mute the naughty bits of Goodfellas is cool; burning a copy of the ten-minute short film that results is not covered. And a district court judge has just ruled that, in fact, companies that specialize in renting out such sanitized DVDs are guilty of infringement.

As Tim Lee explains, that's likely correct as a matter of law, even though the companies kept one archived, purchased copy of the film for each "clean" one they made. But it's silly as a matter of policy. It's just an accident of technology that you can "sanitize" a book with a sharpie (and resell it) without raising any copyright issues, but to do the equivalent with a DVD, you've either got to make a copy or "re-sanitize" it on the fly with a special player each time you watch it. (I wonder, offhand, what the result would be if we tended to store our movies on writable USB drives. Would it be OK to just zero out particular offensive bits in the original file, but not to overwrite the original with an edited version?) From the perspective of creating economic incentives, this seems apt to increase the sales for any particular movie, since copies are being bought on behalf of consumers who presumably weren't interested in the "dirty" version. And it's a wash from the perspective of artistic integrity, since we've already established that there's no problem selling a technology designed to sanitize the viewed film (presumably what artists care about) so long as it operates on the original disc. Of course, Hollywood tried to block that too.

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  1. Yeah, but it was Bob Redford and some other “artist” that were coming out against these companies. So you can see why “the art” must remain untouched—cuz it’s surely not about the money. Cut out some “fucks” and “shits” and some softcore porn/nudity from my “art”, and you’ve ruined it!!! haha.

    But you’re right, I don’t understand how it’s okay for a particular player to cripple media, but not okay to cripple the media itself.

  2. It’s just an accident of technology that you can “sanitize” a book with a sharpie (and resell it) without raising any copyright issues, but to do the equivalent with a DVD, you’ve either got to make a copy or “re-sanitize” it on the fly with a special player each time you watch it.

    But if you sanitize a book with a sharpie, the next person who reads it knows full well that you’ve taken stuff out, and knows exactly where you cut it from. That isn’t necessarily the case with this movie technology. I think the judge made the right call; I don’t think Reader’s Digest should have the right to put out their bowdlerized Condensed Books without the author’s approval, either.

  3. you know what I’d like to see?

    the Cleanflicks version of Nasty Anal Nurses 6

  4. Jennifer: but what about the DVD players with the crippling technology built into them?

  5. Does this mean that eventually the “I done told you once you son of a gun” version of Devil Went Down to Georgia will stop gracing FM radio?

  6. But if you sanitize a book with a sharpie, the next person who reads it knows full well that you’ve taken stuff out, and knows exactly where you cut it from. That isn’t necessarily the case with this movie technology. I think the judge made the right call; I don’t think Reader’s Digest should have the right to put out their bowdlerized Condensed Books without the author’s approval, either.

    Couldn’t you just fix that by requiring a notice that it is an editing unathorized by the creator?

    I can’t see how this is about money since Clean Flicks buys a corresponding copy each time. In fact this makes people unlikely to buy the original, customers. So fighting this reduces revenue. I guess they’re afraid of expansions of any use, even if it leads to more sales.

  7. Jennifer: but what about the DVD players with the crippling technology built into them?

    I too think it was the right ruling.

    My understanding of said technology is that it is more akin to a commercial skip feature (although i may not be up on the latest incarnations) — it will just skip over certain parts (like a FF) of the movie or cut out the sound or something.

    You can make a player that can do whatever you want it to do…but the disc it plays remains in the original format.

    I know it sounds like splitting hairs, but to me there seems to be quite a bit of difference between distributing (and profiting of the distribution of ) an edited work vs. a user controlled device that lets them skip over material they might find objectionable (where you aren’t profiting from the edited work, but rather from a 3rd party player that gives you more control how you view the work).

    You shouldn’t be able to distribute someone else’s material in a way they wouldn’t like…but you should be able to view that material –once it’s been distributed — however you want.

  8. Jennifer,

    So, was I infringing copyright the other night when I was showing my little brother Falling Down and skipping over the boring retired cop parts? I don’t think I specified exactly which scenes I was deleting, and he’s never seen it before so he wouldn’t know otherwise.

  9. “It’s just an accident of technology that you can “sanitize” a book with a sharpie (and resell it) without raising any copyright issues, but to do the equivalent with a DVD?”

    I don’t think it is an accident of technology. If the cost of altering books had been as low then as the cost of altering bits is now, it’s unlikely that copyright law would be the same as it is.

  10. You shouldn’t be able to distribute someone else’s material in a way they wouldn’t like…but you should be able to view that material –once it’s been distributed — however you want.

    Ah, but that brings up the prickly question of when distribution ends and ownership begins. Is a church library distribution or ownership? Is a circle of friends who share DVDs with each other distribution or ownership?

  11. From the E! article:

    The filmmakers alleged that, by taking it upon themselves to cleanse movies of R-rated elements they found objectionable, the services amounted to censorship–like ripping the pages out of a book they didn’t like.

    Ripping the pages out of a book is not illegal, nor is non-governmental censorship in general.

  12. Ah, but that brings up the prickly question of when distribution ends and ownership begins. Is a church library distribution or ownership? Is a circle of friends who share DVDs with each other distribution or ownership?

    Those are good questions…..

    I think I should have also added the word “commercial” in front of distribution.

    I also think that — as it stands — you don’t own the work, you own a copy (license) of the work, and what you do is governed by fair use standards (I may be wrong — please correct me on this).

    If you are selling them to your friends, then I think it would qualify as commercial distribution. If you rip it, edit it, and give a copy to your friends for free — then maybe not so much.

    Once you start a business whose model depends on taking copyrighted material and altering it and then charging for a copy of the altered material, you have now become a commercial distributor.

    If someone is profiting off of my works, by altering my works against my wishes — that to me is bad. On the other hand if my work is intact, but the way in which the user consumes it isn’t to my liking, that is just tough shit for me.

    I dunno if I adequately addressed your concerns, but those are the distinctions I see.

  13. I had a great comment but the squirrels ate it and the muse has left me… I even had some Hit&Run Drinking Game events in there! Damn those rodents!

  14. ChicagoTom,

    So if these companies operated as normal DVD retailers, selling the original DVDs, but also offered to produce a bowdlerized copy of an already-purchased DVD for a small fee, you’d have no problem with it? By your definition, the distribution is over once the DVD is purchased by the consumer.

  15. I think it is pretty clear that the copyright is being violated when you take the creative work of someone else, alter it and then resell your mash up as a substitute for the original work. If this concept was allowed to spread, it would be impossible to keep track of all of the new and improved versions of books, movies and software being offered for sale by no talent hacks making a living ripping off the work of real creative talent. Why can’t the conservatives that are scared by the sight of titties just make their own family friendly movies instead of stealing the work of other people and making it fit for prudes.

    I also wonder if the conservative supporters of these clean film makers would feel the same way if a company was taking G and PG rated movies and adding foul language and sex scenes to make the films more palatable to people that don’t need every entertainment product Jesus approved.

  16. So if these companies operated as normal DVD retailers, selling the original DVDs, but also offered to produce a bowdlerized copy of an already-purchased DVD for a small fee, you’d have no problem with it?

    To an extent..yes.

    If I buy a bunch of music CD’s and take them to DJ buddy of mine and ask him to mix of a bunch of songs on to a tape / cd for me, and then pay him for his time, t hat’s fine – I own the license, for those songs, and I am keeping them for myself. That to me would fall under fair use. If I or my DJ friend decide to start selling those CDs now, I believe I would be violating a copyright.

    I get your point though, what’s the diff. if they sold the editing service instead of renting the edited product directly. The end product may well be the same —sort of.

    The one difference that I see is that the consumer in this case would have own a copy of the DVD before being able to edit it — at that point it would be considered fair use for that user to edit it for personal use only.

    Also, if I am paying for editing services, I may get more creative control over the edits (but I suppose this could be contractually negotiated)

  17. If this concept was allowed to spread, it would be impossible to keep track of all of the new and improved versions of books, movies and software being offered for sale by no talent hacks making a living ripping off the work of real creative talent.

    Yeah, that’s why we’re awash in altered HP Lovecraft stories, few if any of which are not under copyright. Even if that ever did become a problem, I think a label on the cover saying “The Original Book Written by John Doe” or something like that, would limit the confusion considerably. I would fully support legal action against someone falsely labeling an altered work as original.

    Of course, this also assumes that no improvement can ever be made on the original of any creative work…a belief that’s at odds with the history of western civilization.

  18. …few if any of which are under copyright…

  19. crimethink,

    A DVD isn’t a table or a chair; you aren’t buying the content on the DVD, you are buying a bundle viewing privileges when pay for it. If copyright holders want to include in those privileges the ability to make “clean” versions of these movies by altering them, well, that’s fine. If not, fine.

  20. Jennifer: but what about the DVD players with the crippling technology built into them?

    This response would have been posted three hours ago, if the goddamned servers didn’t have the work ethic of a crack whore on methadone, but:

    I have no problem with such DVD players, anymore than I’d have a problem with you ripping offensive pages out of a book you bought and paid for. What I would object to is selling the altered book and portraying it as the author’s unaltered vision.

    So, was I infringing copyright the other night when I was showing my little brother Falling Down and skipping over the boring retired cop parts?

    No, but you would be if you made your own version of the movie with the boring parts cut out, and sold it, without getting the director’s permission first.

  21. What I would object to is selling the altered book and portraying it as the author’s unaltered vision.

    Which is, again, clearly not what was happening here. For Gaia’s sake, this company advertised the fact that it was renting/selling an altered version of the original films!

  22. A DVD isn’t a table or a chair; you aren’t buying the content on the DVD, you are buying a bundle viewing privileges when pay for it.

    If that is the case, what is preventing them from suing me for infringement when I skip scenes I don’t think are important when showing the film to others? After all, the copyright holder didn’t explicitly grant me that privilege in the license.

  23. If that is the case, what is preventing them from suing me for infringement when I skip scenes I don’t think are important when showing the film to others

    Fair Use

    Also, skipping scenes isn’t altering the material at hand. That to me seems like quite an important distinction. That’s why a player that lets you skip through scenes is ok, but creating and selling / renting a DVD of altered material is not.

  24. I’m not an attorney, but I believe it would be perfectly legal to create a DVD player that allowed you to do alterations significantly different from skipping scenes, e.g. allow you to map your head over the actor’s, etc.

  25. For Gaia’s sake, this company advertised the fact that it was renting/selling an altered version of the original films!

    But WITHOUT the author’s permission. And I oppose that, especially considering the importance of things like context. Think of this: give me something good you wrote, that you’re very proud of. I guarantee that I can edit/cut it in such a way that I haven’t actually changed the meaning of what you’ve said (no taking things out of context, for instance), but nonetheless I can cut out everything good* and leave behind nothing but bad crap that’ll make people who read it think “Wow, crimethink’s stuff really sucks ass.”

    *(or at least everything you think is good, and everything of which you are most proud. Bottom line is, you should have control over how your work is presented.)

  26. I’m not an attorney, but I believe it would be perfectly legal to create a DVD player that allowed you to do alterations significantly different from skipping scenes, e.g. allow you to map your head over the actor’s, etc.

    Probably, and even if you could then burn that DVD — it would still be problematic to sell / rent it though would it not? You can alter the material for your own personal use ( and showing it to friends is personal use ) but you can not run a business based on selling altered copyrighted material.

    I suppose that you could sell your editing services if the owner of the DVD brings in the DVD and specifies it — but again that would seem like personal use.

  27. ChicagoTom,

    Burning a new DVD wouldn’t meet the test of the first sale doctrine, AFAIK, but it would probably meet the test of fair use. If I’m right (and there’s a good chance I’m not), that means that you wouldn’t have the right to sell your derived work, but you would have a right to keep a copy of your derived work for your own personal amusement.

    Taking an original DVD and using a laser to alter the pits, in theory, would keep the DVD under first sale, so you could then resell it, I believe. However, not only am I not an attorney, much time and some non-trivial legislation has passed since I tried to keep abreast of this.

    I’d be happy for someone better versed than I to elaborate on first sale and how it relates.

  28. Couldn’t you apply eminent domain in a weird way to this?

    From Wikipedia:

    Eminent domain (US), in common law legal systems is the lawful power of the state(or let’s say Clean Flicks)to expropriate private (copyrighted) property without the owner’s consent, either for its own use or on behalf of a third party.

    Clean Flicks think they have the lawful power to capitalize off somebody else’s property for the good of their “community”.

  29. Jennifer:

    nonetheless I can cut out everything good* and leave behind nothing but bad crap that’ll make people who read it think “Wow, crimethink’s stuff really sucks ass.”

    Well, to make it analogous to the situation at hand, you’d have to buy an original copy of my work for every altered copy you produce. Also, you’d have to make clear that the altered copy has been edited from the original. Within those boundaries I would have no (legal) problem with it, because there are several factors working to ameliorate the damage to my sterling reputation:

    1. If the altered copy is really that crappy, you’re not going to be able to sell it for a profit, and the more you distribute, the more money you lose.

    2. Furthermore, if my original work is also widely distributed and widely acclaimed, people who read “The Jennifer Edit” and hate it are bound to wonder if the changes you made are the reason they hated it.

    3. On the other hand, if my original is obscure and not widely distributed, I can bleed you even more by raising the price of my work. It won’t hurt me too much, since I’m not selling many originals anyway, but it’ll grab you by your money if you know what I mean.

  30. crimthink,

    Skipping through a work is not the same as changing its content. For Gaia’s sake indeed.

  31. Mandatory? Whatever.

  32. PhiL,
    What’s the material difference between skips on the content side versus on the reader side. To use Jennifer’s book anaology. One blacks out the marks on the book, the other one is a pair of magic glasses that blacks out the words when you read it.

    IIRC, the same people opposed the changes on the device side for the same reason. Technically, they’re not changing the content, they’re selling a version of the movie with the skips inserted for your convienence.

    The fact of the matter is the entire legal difference is that the company is making a new copy rather than merely zeroing out the naughty bits on the original DVD.

    Wow, I never thought there’d be an issue where me and crimethink agree and oppose Jennifer and PhiL.

  33. Mo,

    What’s the material difference between skips on the content side versus on the reader side. To use Jennifer’s book anaology. One blacks out the marks on the book, the other one is a pair of magic glasses that blacks out the words when you read it.

    Skipping doesn’t change the overall content of the work; at best it changes how the work is experienced subjectively. Plus there is a significant problem with the actors being compared here; this is a company creating a derivative work as opposed to an individual skipping through something with a remote control.

    The fact of the matter is the entire legal difference is that the company is making a new copy rather than merely zeroing out the naughty bits on the original DVD.

    They are creating a derivative work and thus violating copyright law and the moral rights of the copyright holder.

  34. What is the moral difference of creating a device that skips the parts and creating a disk with the parts preskipped. There are devices that have been found legal under current copyright law that seamlessly skip the disk so that the content is displayed the exact same as if the disk itself was modified. You have yet to give me a moral difference rather than a technical difference.

  35. Mo,

    Because with the skipping device the work isn’t being permanently changed. All that is changed is the individual experience, not the work itself. Changing the work itself is a violation of the moral rights of the creator.

  36. The experience is being changed in the exact same way in both cases. From the consumer’s side the work is the exact same. If the creator’s concern is the experience of the viewer, then there is no difference.

  37. Mo,

    Are you suggesting that the consumer is the only part of importance in the exchange?

    If the creator’s concern is the experience of the viewer, then there is no difference.

    The creator’s concern in part is his or her moral rights.

  38. In both cases, the creator is being paid for the original work. In both cases, the end user is informed that the version they are watching is an edited version. In both cases, the viewed product is the exact same. The entire difference is in which step is the change made, it is either made at the source or the work or at the decryption of the source. Both are invisible to the creator and the consumer.

    The legal difference is obvious, but I fail to see the moral difference. In fact, the Directors Guild of America opposed Clearplay because “directors have great passion about protecting their work…against unauthorized editing.” That quote form this Reason article. So apparently, even the creators don’t see a moral difference between the two.

  39. Mo,

    The moral difference is clear; in one instance you are altering the work itself and thus attacking the moral rights of the creator, in the other you aren’t.

  40. Apparently the creators see no moral difference. Since actually altering the original work would be legal in this case (say zeroing out the naughty bits on the original DVD vs making a copy without those bits) versus vaulting the original in a safe and selling a copy with the bits simply missing (Jennifer’s book with censored lines vs. a copy sans lines), obviously altering the original work is not the reasoning behind the law.

  41. …obviously altering the original work is not the reasoning behind the law.

    Sure it is. Control over how the work is used in the future is an important aspect of the copyright holder’s rights.

  42. Sure it is. Control over how the work is used in the future is an important aspect of the copyright holder’s rights.

    How is that true if you can legally alter the original disk? It’s apparent that it’s the copy process where the judgement is made.

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