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The Family Entertainment and Copyright Act: My Opinion

First of all, I'd like to thank everyone who offered up comments on this act in my post from yesterday. People had a lot of well-thought out opinions to share, and even the disagreements seemed respectful. You gave me a lot to ponder.

I didn't offer my own opinion yesterday because, quite frankly, I'm still not completely sure how I feel about this. One the one hand, I do agree that once someone buys a book or a DVD movie, they have the right to watch it or edit it as they want to their own satisfaction. Often, when I reread a book I've enjoyed, I will skip parts that I now find boring. And, when watching certain movies with what I consider excessive violence or gross scenes, I'll cover my eyes or look away if I feel disturbed by what I'm seeing.

That said, however, I still have some discomfort about the concept of ClearPlay filters. (I'm also disturbed by the idea of the government passing legislation that seems to exist to benefit one particular company, but that's a different issue.) I think I've managed to outline three reasons for my discomfort below, if anyone's interested.

So here are the reasons why I have mixed feelings about the filtering software and the new legislation:

1. Mass production -- not really my choice of what gets cut

My first issue with this software is a response to the idea that once I own a DVD I have the right to watch it as I want. While this is true, the difference with ClearPlay is that it doesn't exist to help me with my own individual choice. Instead, it creates a mass-produced set of choices which are given to everyone. Something about this disturbs me, because it feels like I'm giving up a certain amount of choice to someone else.

2. Profiting from a new version

Although the Act clearly prohibits someone from selling a remastered DVD with the objectionable scenes cut from it (a compromise offered to the studios), the fact is that a company is still making a profit from altering someone else's work, even if the buyers still have to give money to the studios for the original DVD. It seems to me that there's a legal hair here that's been split in a way that leads to a slippery slope. (Mixed metaphors 'r' us.) The end result of the two marketing strategies -- a filter or a remastered DVD -- is equivalent: a new version of the film. And in both cases, someone other than the studio is making a profit.

I look at it this way. Suppose I wrote a novel, and someone else out there typed up a set of notes telling readers which pages they should skip. Then suppose they sold that set of pages to anyone who wanted, as long as they had proof that the buyer had already bought a copy of my novel. Now, on the one hand, they're clearly not cutting into whatever amount of money I'm making from my own book. But on the other hand, they're making money off of the fact that people have bought my book. It could be argued that their set of notes is equivalent to a derivative work, such as fanfic or a role-playing game based on my novel. And I would be very upset if someone made money off of either of those things without a proper license.

In fact, let's extend this argument to the "fan vid" concept. Most fan vid creators I know respect the copyright of the studios, and don't sell their vids for a profit. Now, suppose instead of creating a remastered DVD, a fan vid creator programmed a filter to create their vid for you when you popped in the appropriate DVD. Would they now have the right to charge for that filter, and make a profit?

3. Alteration of "art," or at least plot

An article I read a while back about ClearPlay pointed out that the filters sometimes chop up the movies in ways that make it difficult to follow the plot. Here's a made up example. Suppose there's a movie where two characters sleep with each other, and then one of them betrays the other using information they discussed while in bed together. By deleting the bedroom scene, ClearPlay software would also delete the vital plot point, making the movie harder to follow. Would the viewer blame the filter or the movie maker for the hard-to-follow story?

So there's where I currently stand. I welcome more reasoned, passionate, and respectful debate from anyone who still wishes to discuss the issue.

Comments

"Instead, it creates a mass-produced set of choices which are given to everyone. Something about this disturbs me, because it feels like I'm giving up a certain amount of choice to someone else."

I think what disturbs me about that aspect is that ClearPlay is taking a moral stance, and I don't like "values" being dictated to me by a corportation or the government.
There's a big difference between a corporation "dictaing values" and the government "dictating values". You are free to buy or to not buy the ClearPlay DVD player and filters. If you live in this country, however, you are generally not free to disregard laws that you don't like.

I think people are hearing "government" and "DVD filters" and it sets off their warning bells. However, this law (the part we're discussing here, anyway) just makes it so a company like ClearPlay can't be sued by the movie studios for selling DVD players and filters. The government is not telling people they must use this technology, and, as far as I know, this bill isn't only about filtering based on what some people find objectionable. ClearPlay is currently the only company benefiting from this right now, but as far as I can tell (I haven't actually read the law), this law would also protect people from creating whatever kind of filter they want, from something that gets rid of all of Luke's whining in the Star Wars movies to something that, say, repeats every scene with nudity in slow motion.
(As you might have been able to tell, this is a subject that I'm very interested in and have strong feelings about.)

1. Now, I don't know if it would currently be legal under the DMCA, but there's nothing stopping you from creating your own filters to be used in a ClearPlay DVD player. Whatever encryption (if any) they use will certainly be broken at some point.

2. This is an area that I don't have much experience in or knowledge about. How is this different from, say Cliff's Notes? Or are those all for books that are out of copyright, so it's not an issue? And I guess I don't really see what's wrong with someone creating a derivative work that in no way cuts into the sales of the original work, even without permission from the creator of the original work. I mean, if it were something that you would eventually want to create yourself, then that's a different issue. Maybe I'm looking at it differently because I don't do much creating. I'd be interetsed to hear a more detailed explanation of this (which, I guess, is really more tangential to the main issue of ClearPlay).

3. I'm not sure I see the point of this. Other than getting nastygrams from viewers, why would anyone care who the viewer blames for a crappy edit? And why should it make a difference legally?

Thanks for posting about this.
3. I'm not sure I see the point of this. Other than getting nastygrams from viewers, why would anyone care who the viewer blames for a crappy edit? And why should it make a difference legally?

It could certainly affect sales of the sequel.
So could bad reviews.
Sure, but at least the bad review was based on the actual movie rather than a corrupted version. People who just for themselves rather than using reviews might find that the filter becomes invisible enough that they ascribe their reactions to "bad movie" rather than "bad filter".

Sure, it could work in the other direction too, but I'm guessing that wouldn't be nearly as frequent.
Agreed. I guess my point was that affecting sales of a sequel is not a reason to make something illegal.
Oh, I agree. mabfan has posted some things to think about and I don't have a firm opinion yet, but my inclination is in favor of the filters. I wouldn't use them personally, but I don't think they should be illegal so long as the government does not try to mandate their use by anyone. (And that's a pretty big "if", considering what's been done to libraries.) I was just trying to explain the argument I think mabfan was making.
Ah, cool, thanks. Yeah, that did help.

I think I go back and forth between worry about the slippery slope and not worrying about it. It's so hard to know what the first step might be. Here's hoping the technology is liked enough to stay legel but no so much that it becomes mandatory anywhere.
[... T]he difference with ClearPlay is that it doesn't exist to help me with my own individual choice. Instead, it creates a mass-produced set of choices which are given to everyone. Something about this disturbs me, because it feels like I'm giving up a certain amount of choice to someone else.
That’s true. That’s also true when you buy a book from a publisher, or watch a movie from a studio, rather than negotiating directly with the author or director/screenwriter about how you want the work edited. In a way, ClearPlay democratizes the process, giving individual viewers power that previously only studios (and TV advertisers, and large chains that carry CDs, and so forth) had. It’s more complicated than that, because (as you say) ClearPlay is doing this en masse, trying to approximate what they think a large market segment is going to want, rather than giving people really fine-grained controls and letting them remix the DVDs they’ve bought however they like. But my point is that studios (and to a much lesser extent, publishers) get in the way of “artistic integrity” at least as much as the tools ClearPlay provides do. The movie Dark City was released with an initial voice-over that totally gives away what was supposed to be the surprise of the film, because the studio thought audiences were too dumb to deal with learning it as the characters learn it. That bugs me a lot more than the fact that some conservative family somewhere can use a device I’m probably never going to use to ensure that their kids can watch a half-hour-long version of Henry and June. But at the same time, I recognize that unless we eventually end up with an economy in which all artists get to market their works directly to readers/viewers, studios and publishers serve an important function, and there’s really no way to get around the fact that they’re going to have to make decisions (correctly or incorrectly) about what they think people will want to see.
European countries have a concept of "moral rights" along with copyright; one of the moral rights is the author's right to preserve the integrity of his or her work.

American law has always rejected this concept of moral rights. When the Senate ratified the Berne Convention, they did so with the understanding that acceding to the Convention would not sneak moral rights into American copyright law. Copyright is to "promote the progress of science and the useful arts", and forbidding ClearPlay (or the other kinds of editing you mention in your post) would not do anything to promote such progress.

If the filter is useless without a separate copy of the DVD (or other work) being filtered, then I think it qualifies as fair use, even if the filter is being sold for a profit, because everyone who buys the filter also buys (or rents) the work being filtered, and therefore the owners of the original work's copyright are not seeing their profits reduced.

(One could argue that the owners of the original work might want to make their own sanitized version and sell it at an even higher profit margin, but with the filter, this option for making more money is closed off. I think that argument is a big stretch, though.)
the difference with ClearPlay is that it doesn't exist to help me with my own individual choice.

*nods* That's why I wouldn't buy it - but my standards for what's skippable are extremely non-standard. I have no problem with sexual content, and I cannot bear to watch quite socially acceptable realistic violence.

If all I wanted was the social norms of what's acceptable to show the kids, the presets might be better enough to be worth buying, even if not perfect. While I would prefer a do-it-yourself technology, I can understand why that is harder to implement.

Anyway, I understand why you'd feel like you're giving up choice to someone else, but after all, we would all retain the option *not* to buy the ClearPlay product.

It strikes me as giving up much MORE choice to cede to movie makers the right to prevent the end user from choosing technology that would help them skip stuff.

But on the other hand, they're making money off of the fact that people have bought my book.

That's always been legal, though. Look at "Understanding the DiVinci Code", "Did DaVinci Really Have a Code?" "Why DaVinci Needed a Code" and "Michangelo: What Am I, Chopped Liver?" (All titles fictional, so far as I know.)

Also scholarly books analyzing or annotating a text -- or, for that matter, pop culture books. Unauthorized biographies. Cliff Notes.

You could argue that "these are the parts to skip" is not enough transformative use/new content to make it a new work (though by the same token, is the mere times when scenes start and stop enough to qualify as use of the original work? It's kind of like claiming the page numbers) but the mere fact of somebody else making money because people bought your book is well-established as legitimate.

a company is still making a profit from altering someone else's work,

Yes, but so is the guy who made the scissors I used to cut my book up, or the magic marker I used to cross it out. Granted scissors and markers have other uses, but if someone made special, uniquely-for-book-cutting scissors, that would not IMO make it invalid. If I have the right to do it, they have the right to sell me something to help me do it.

I guess the difference here is that I don't see it as *them* altering the movie, I see it as *me* (the end owner/user of the copy) altering the movie.

I would definitely prefer a more all-purpose tool. ClearPlay's strikes me as like having to buy special stickers for each separate book, precut to exactly cover each particular objectionable word and nothing else. That's inefficient, but it's still me doing it. They make the stickers, but I have to put them on.

You couldn't create the fan vids I know with a filter, because they add other things -- music, effects, scenes from other sources -- they're more transformative. Which might, actually, be an argument that they're more legally entitled to be sold than the ClearPlay filter is, but I'm not going there.

I'm content in the fan culture that does not charge, and shores up our theoretical legal defense by making double sure not to do any economic harm, as well as adding transformative content and using only a fraction of the whole work. I would never dream of selling a fan-created work, or buying one.

But that is a belt and suspenders approach to fair use, and based in personal fondness for the original creators, desire never to make them unhappy because we feel indebted, and fan culture's lack of money for legal battles and fear that negative stereotypes could lead to a bad precedent which would be worse than the current limbo.

I don't think, therefore, that commercial enterprises which have no emotional connection with the original creator and have the money for litigation are obligated to hold themselves to the same standard. Much as many things are free speech which I would never say to my mother.
This is from ClearPlay's website:

The user-interface is very simple. You can turn ClearPlay ON or OFF with a single setting. You can also customize your filter preferences by adjusting 14 different filter settings (that gives you 16,384 potential user configurations!). Based on your settings, content will be skipped over or muted during playback of the movie. Great care and effort is taken to ensure that although certain content is removed, the continuity of the story is maintained, and the presentation retains its entertaining value. Many say the end result is similar to an airline or television presentation of the movie.

It seems to me that they are providing you with choice. Suppose you just don't want to hear profanity; you just have it mute the soundtrack. Don't like violence? Turn that off instead, or in addition. The amount of editing is up to the user.

The law may have been enacted to benefit a single company, but there's no reason competitors couldn't spring up. You'd think Hollywood would be in favor of this technology, since the only choice people have at the moment is to avoid the movie entirely. This might actually increase sales to people who would otherwise not even consider watching the movie.

The easiest way for the movie studios to "defeat" somebody making a profit from this would be to author DVDs with the filters built in. Imagine: choose a menu option for no violence, and the movie would play back, skipping scenes chosen by the filmmaker. They hold onto their intellectual property, make sure the result isn't some hatchet job, and by providing the filter on the DVD itself, take away the market from ClearPlay. And you don't need a special DVD player to do it, either, unlike ClearPlay's solution.
I look at it this way. Suppose I wrote a novel, and someone else out there typed up a set of notes telling readers which pages they should skip. Then suppose they sold that set of pages to anyone who wanted, as long as they had proof that the buyer had already bought a copy of my novel. Now, on the one hand, they're clearly not cutting into whatever amount of money I'm making from my own book. But on the other hand, they're making money off of the fact that people have bought my book. It could be argued that their set of notes is equivalent to a derivative work, such as fanfic or a role-playing game based on my novel. And I would be very upset if someone made money off of either of those things without a proper license.

I just wanted to note that the very first thing my brain flashed to here was "Cliff Notes". I am curious as to your opinion of those.
Cliffs Notes? Hm...hadn't thought about them in this context. I'll try to formulate an opinion after Pesach is over. My gut instinct is to say that I have no problem with them in general, which I agree is inconsistent with the point of view I've posted here.
Ooh, I just had a great idea for a piece of technology. It's a little box that you can plug as many DVD players or CD players into as you like. This in turn plugs into your TV (or has a TV screen itself, whatever). And then you can mix the different movies/music/whatever together, however you like, inserting some background music, whatever. So you would basically produce something akin to a ClearPlay filter, only it would say which device to grab from and when. At its most basic, it could just duplicate ClearPlay's technology. At its most complex, it could create an entirely new work based on smaples from hundreds of movies and albums. Actually, I suppose the easiest way to do this (thinking as I'm typing, as I am wont to do) is to just make it a computer program that could work from a library of stuff drawn from your library that you've put on your computer. So what you would distribute (possibly sell) would just be a file that says when to play what clips from what movie/album/whatever, and anyone who wants to view it would also have to have all of those movies/albums/whatevers. Now that would be pretty cool, I think.
I wanted to get a copy of Atlas Shrugged, black out all the political speeches that distracted readers from the plot, and then auction off the redacted version (Atlas Snipped?) on eBay. Unfortunately, once I read the novel, I realized that this kind of editorial work would be harder than I had anticipated. At the very least, it would require reading the book a second time, and the first reading was painful enough for me.
I very much like the "Cliff Notes" correlation that folks are making. Me, I never bought Cliff Notes, but I saw it's purpose...as well as its potential for abuse by my lazier classmates.

In my mind, I see what ClearPlay is doing as being related to all the software that's out there that filters what websites can be accessed on a given computer. With the way legislature is going, if parents don't have these options (OK so I question them letting their kids watch certain movies in the first place) those parents might start pressuring lawmakers to start sanitizing everything before we see it. Already happening to some extent (remember the flak a few months ago with Saving Private Ryan airing on network TV?) And that's a much slipperier slope, IMHO.

delayed grammarchecking

"its" not "it's" that first time (typo, probably). tho actually probably should have been "their"...

I get annoyed at the TV for editing movies, tho most often these days it is done for time (must! shoehorn! more! commercials!) as much as content.



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