Family Entertainment Act, Revisited

[mabfan]

Back in April of 2005, I mentioned the passage of the Family Entertainment and Copyright Act and then gave my own opinion on the law.

To remind everyone, the Act created an exemption in copyright law that allowed companies to create filtering software for movies on DVD. So if you bought or rented a film that had content the company considered objectionable, such as foul language, excessive violence, or nudity, the software would cause those section to be skipped when you played the DVD.

At the time, we had a lot of good, respectful debate on whether or not this was a good idea, and I pointed out why I myself felt uncomfortable with the concept.

Well, I'm not the only one uncomfortable with the idea of companies "sanitizing" films.. So is Judge Richard P. Matsch. Last Thursday, in Denver, Colorado, he ruled that selling an edited version of a film is an "illegitimate business." However, his ruling seems to be aimed solely at companies that sell an actual new version of the film, rather than those that create software to used with a licensed copy. For example, ClearPlay, which creates software filters, issued this press release, which reminds people that what their company does is protected by the Act. The companies named in the lawsuit, such as CleanFilms and CleanFlicks, would buy a new copy of the movie for each edited one they sold, a way to avoid accusations of piracy.

I'm fascinated to see what happens next...

Copyright © Michael Burstein

Comments

[sethg]

I think Judge Matsch correctly interpreted the law, since the scrubbed DVD is clearly a derivative work based on the original, and even making a single copy brings you under the purview of copyright law. By contrast, one could argue that even before there was a specific law protecting its service, ClearPlay was not actually violating anybody's copyright, because it wasn't copying--it was just skipping over particular scenes in its playback.

However, I think the law is an ass, for the reasons that Matthew Yglesias gives here:

Intellectual property is supposed to serve the broad public interest...rather than the narrow interests of any particular group of creators or distributors.... The entire [???] is to ensure the availability of new works by setting up incentives for their creation. But intellectual property rights also create costs by making it harder for people to obtain content (high prices) or to make new derivative works (everything from mashups to these CleanFlixed movies, etc.). The policy goal needs to be striking a balance that serves the public interest....

Overwhelmingly, the impact of a service like CleanFlix is to make versions of works available to people who otherwise wouldn't be consuming them at all. Even in a CleanFlix world, authors of "unclean" content will still enjoy extremely close to 100 percent of the pre-CleanFlix market. There's no reason at all to think that the existence of this sort of service will seriously reduce future production of new things.

Artists and so forth who think their interests are being served by pushing a strong-IP doctrine on this front are essentially dupes. The people who control the existing distribution channels for film have a very serious interest in using the new-style super-strong IP rules to insulate themselves from the winds of technological change. So, in essence, they're pushing forward on all fronts, stomping on various totally non-harmful cases of putative infringement and attempting to radically curtail people's ability to do what they want to do with content they've purchased.

What happens next is that the studios will release "edited for family values" versions of their popular movies, just like they have "edited for television" and "edited for airplane viewing" versions, and collect all the extra revenue (and then some) that previously went to CleanFilms and CleanFlicks.