Mandatory Smut

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.