21 Jul 2006

CleanFlicks Confusion and the "Family Movies Act"

There seems to be a lot of confusion going around as a result of the recent ruling against the Utah-based “CleanFlicks” movie-censorship service. In particular, there seems to be a widespread belief that the decision would somehow prohibit you from distributing a set of instructions that would cause a playback device to skip certain portions of a film. I don’t think this is the case at all, and frankly I’m not sure where people got this idea: the law, thanks to a little thing called the “Family Movies Act” is quite clearly on the other side.

What was prohibited in the CleanFlicks case was the reproduction that CleanFlicks was doing in order to produce the edited versions. They were taking a movie, editing it, and then selling the expurgated version – admittedly alongside the original, but they were reproducing the film just the same.

Other companies – perhaps ones with better lawyers? – who took a different tactic and avoided the reproduction step (by delivering to the customer an EDL that would cause a specially-designed DVD player to fast forward through various ‘offensive’ parts) were unaffected by the ruling.

There’s an pretty good analysis of the CleanFlicks verdict on FindLaw, which isn’t too long and is worth reading. In particular: “The defendants also argued that they were protected by the so-called ‘first sale’ doctrine … [they] failed to win on this affirmative defense, because they were not just dealing in the hard copy, but rather making copies of it.” (Emphasis mine.)

If you’re willing to spend some more time reading things actually written by folks who have law degrees, I recommend this substantial article from the Georgetown Law Journal, which was written in 2004 and examines the viability under then-current copyright law of several video-censoring technologies, including old-school razorblade tape splicing (literal cutting and splicing of the customer’s purchased tape, so there’s no copying), CleanFlicks-type digital editing, and EDL-based ‘skip-over’ systems.

Although CleanFlicks no longer offers edited copies of DVDs, another Utah company, ClearPlay, still offers an EDL-based product, as can be seen on their website.

Perhaps anticipating a legal challenge to home-movie censorship by the entertainment industry, the Bush administration last year pushed through the “Family Movie Act of 2005,” which specifically allows you to make changes to an authorized copy of a motion picture, as long as you don’t create a fixed copy of the edited version.

The best part of the law? It’s not limited purely to obscenity edits; according to one Forbes article, it could be used just as easily to protect a fan’s reversal of George Lucas’ latest butchery of Star Wars as it could the removal of Kate Winslet’s nudity from Titanic. (Sadly, apparently the technology can’t replace Jar Jar Binks with Kate Winslet. Yet.) And the door is thus opened to all sorts of real-time editing and mixing. Even though you may not care about the same sort of censorship that people in Utah apparently do, the law makes it clear that putting a disc in your player’s drive does not require you to give over control to it.

Overall, that’s a good thing in my book, regardless of the motivation.

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