CleanFlicks and Digital Rights Management
Last Thursday, a federal district court judge ruled that CleanFlicks violated U.S. copyright law when it edited movies for sex, violence and language. CleanFlicks sought to claim protection under “fair use” but the court rejected that claim. The case is interesting in the way that it ties into the issue of digital rights management (posts here and here) and the question of how we will allocate control between content creators and content users.
We should start with some background on CleanFlicks. CleanFlicks does exactly what the name suggests. It edits out the bad parts of movies (or are those the good parts, I always get confused) to make movies more family friendly. Clean movies. Nick Gillespie at Reason nominates Titanic as a natural candidate. Very little violence in the movie (well, other than the thing with the iceberg and everybody dying in the end) and very little sex, other than one key scene in which Leo DiCaprio sketches Kate Winslet in the nude (Kate, not Leo), and you do get something of a lingering look at Winslet’s breasts. Take out the breasts and now we have family friendly.
CleanFlicks also has (had may be the right tense now) a clean business model. CleanFlicks didn’t just copy Titanic once, make edits, and sell those. CleanFlicks insisted on a one-to-one match: one legit copy of Titanic—they would sell or rent it to you, or you could send in a DVD—for each edited copy.
As this suggests, this is probably not a case about dollars. CleanFlicks actually was expanding the market for these movies, and at least in the short-run, was making more money for Hollywood. In the long run, we can talk about complicated dynamic effects, such as damage to reputation and trademark blurring (It isn’t a Quentin Tarantino film unless many people die slow painful deaths), but that is all second-order.
So what is the case about? As a legal matter fair use, but save that technical discussion for another day (read Bill Patry’s views and those of Tim Lee and Solveig Singleton). The case is about control and that takes us towards digital rights management. The plaintiffs in the case included Steven Spielberg, Martin Scorsese and other top-line Hollywood directors. This is not McDonald’s and Have It Your Way. This is watch it their way or the highway.
The directors don’t want their films chopped up by CleanFlicks. Somewhat more cynically, they want to consent to the chopping up and get money for it, as they do when films are edited for airplane viewing or television. (Query: do we know of directors who have walked away from TV dollars, given the edits that would have to be made?)
But this really takes us to the hard-core access question: should a content creator be able to specify how her work will be experienced? Technology is making is easier for consumers to exercise control over works and frame those works on their own terms. But technology—digital rights management—also is making it easier for content creators to control how their works are presented (try fast-forwarding past the copyright warning on most DVDs). With the Digital Millennium Copyright Act in place, content creators probably have the upper-hand in this fight. Indeed, digital rights management is how we sneak moral rights—the rights of content creators to control their work—into U.S. copyright law.
The opinion comes down strongly in favor of copyright creator control:
The argument has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than a matter of marketing; it is a question of what audience the copyright owner wants to reach.
Copyright holders will increasingly exercise that control through digital rights management. Of course, DVDs come subject to DRM now—CSS—and it is interesting that the plaintiffs chose not to assert a DMCA claim.
Note a wrinkle, or perhaps I should a wrinkle in time. We might think of this as a Sony Betamax time-shifting case, except that we are moving the content backwards in time instead of forwards. Standard Sony means that you record the program live on TV and watch it later. CleanFlicks instead gives you the version today that will show up on TV in five years. Instead of watching the TV version live, you watch it earlier. Of course, the director—or her agent—has exercised control over the TV edit, but it would be interesting to see how the TV version compares with the CleanFlicks version.
You also have to wonder a bit whether the interests of the studios and the directors are aligned. The studios might have been happy to lose this case, given the market expansion, while the directors have a much stronger interest in protecting authorial vision.
And not only is this case part of the dispute over copyright creator/user and consumer control, but it also part of the culture war as well. Congress passed the Family Movie Act of 2005 quite easily and that validates filtering and content alteration, so long as no fixed copy of the work is made.