Back in December of last year Deoxy submitted an entry on Mormon owned companies selling copies of movies that had been edited to remove—what they considered to be—offensive content. There was a bit of a debate in the comments about the legality of this which, after a bit of thread drift, I put to rest by mentioning that Congress had gotten involved by passing the The Family Entertainment and Copyright Act of 2005 which included the following provision:
- Title II: Exemption from Infringement for Skipping Audio and Video Content In Motion Pictures – Family Movie Act of 2005 – (Sec. 202) Creates an exemption from copyright infringement for: (1) the making imperceptible, by or at the direction of a private household, of limited portions of audio or video content of a motion picture during a performance in or transmitted to that household for private home viewing from an authorized copy of the motion picture; or (2) the creation or provision of technology that enables such editing, is designed and marketed for such use, creates no fixed copy of the altered version, and makes no changes, deletions or additions to commercial advertisements or promotional announcements that would otherwise be performed or displayed.
Amends the Trademark Act of 1946 to protect from liability for trademark infringement: (1) persons who engage in the above-referenced conduct; and (2) manufacturers of technology that enables such editing if notice is provided that the performance of the movie is altered from the director’s or copyright holder’s intended performance.
That appeared to give companies like CleanFlicks a free pass to sell their sanitized versions of popular movies. Turns out I was only partially correct as the provision exempts the makers of devices that censor movies (by bleeping out or skipping over parts of an unedited DVD original) such as ClearPlay, but not companies that copy a movie and edit out the naughty bits and then try to include it along with the original DVD as CleanFlicks and Family Flix USA were doing. Thus Hollywood continued with their lawsuits against said companies and now a federal judge in Colorado has ruled in Hollywood’s favor:
“Their business is illegitimate,” the judge wrote in his 16-page ruling. “The right to control the content of the copyrighted work … is the essence of the law of copyright.”
The fight began in August 2002 with a pre-emptive legal filing by CleanFlicks against the DGA and 16 prominent directors after it got wind that the guild was preparing a legal case against the company. CleanFlicks sought a court ruling clarifying its right to market the videos on First Amendment grounds. The DGA and directors countersued the following month. After initially staying out of the fray, eight Hollywood studios joined with the directors and the guild in December 2002, filing claims of copyright infringement against CleanFlicks and other companies.
“Whether these films should be edited in a manner that would make them acceptable to more of the public playing on a DVD in a home environment is more than merely a matter of marketing; it is a question of what audience the copyright owner wants to reach,” Matsch wrote. “This court is not free to determine the social value of copyrighted works. What is protected are the creator’s rights to protect its creation in the form in which it was created.”
The judge ordered that CleanFlicks, CleanFilms, Play It Clean Video, Family Flix USA and CleanFlicks of Colorado “immediately cease all production, sale and rentals of edited videos” and turn over all current stock of said videos to the lawyers of the studios for destruction within 5 days. No word on if any of the companies are considering an appeal yet, but the folks behind Family Flix USA have already shuttered their store with an announcement of their intent to start their own production company. For the moment ClearPlay appears to be in the free and clear, but that doesn’t mean Hollywood isn’t thinking of challenging them anyway:
ClearPlay offers software programs developed for specific titles that users can run on their computer or ClearPlay’s proprietary DVD player along with an official copy of the DVD. With this technology, a nude shot of an actor can be altered to show a silhouette, or profanity can be bleeped out. Because ClearPlay’s technology does not involve making an altered DVD copy, it has been shielded from the copyright infringement claims. The debate over movie content filtering activities made its way into Congress, which passed the 2005 Family Movie Act that protects ClearPlay and other software-based filtering companies. Matsch noted that Congress at that time had the opportunity to also carve out legal protections for CleanFlicks and its ilk, but chose not to.
The DGA said in its statement on the ruling it “remains concerned about this exception to copyright protection.”
Don’t be surprised if a lawsuit challenging the exemption shows up in the courts in the not too distant future.