Search LexisNexis using key words: "Hollywood gives thumbs up to court decision on edited movies."

"Hollywood Gives Thumbs up to Court Decision on Edited Movies." Consumer Electronics Daily. 11 July 2006.

This article gives a counter perspective as to why ClearPlay should be considered infringing. The newspaper article expresses the reaction of the Directors Guild of America, the main defendant in the case between Clean Flicks et. al., to the ruling of the Colorado District Court that deemed the services provided by Clean Flicks, et al to be illegal. The president of the DGA expresses his gratification for the ruling, because he believes that it helps protect artists and their work. His view of the purpose of copyright mirrors the stance taken in the case. The judgment in the case in terms of authors' rights holds that copyright protects the "creators' rights to protect its creation in the form in which it was created."

A major statement in the article that can also be drawn from the ruling is that the editing of films distorts the vision of the artist. It misrepresents the copyrighted material of the artist and is therefore infringing on his right to protect how his work is presented. This statement displays the rights and protections that Congress enjoins to artists via copyright. "Audiences can now be assured that the films they buy or rent are the vision of the filmmakers who made them and not the arbitrary choices of a 3rd-party editor."

Clean Flicks and Clear Play do marketed different things via copyright law. That is true in terms of the physical representation of the work. One changes it permanently, while the other provides a means for a virtual editing, with no lasting changes. Another differentiation that must be made is whether copyright also protects the vision of the author alongside the physical embodiment of his work. According to the opinion in this article, the fact that ClearPlay technology enables one to edit sections of a film should also be considered infringing. The clause in the FHMA that requires a disclaimer with ClearPlay implies that Congress recognizes that there is something inherently erroneous with the idea of the editing technology. The disclaimer requirement is Congress' attempt to protect the association between an author and his work, while granting the public the right to do what they wish in the privacy of their own home.

This article is an example of someone equating the similarity of Clean Flicks and ClearPlay on the basis that editing technologies are both infringing.

 

Sony Corp. v. Universal City Studios. 464 U.S 417, 104 S. Ct. 774, 78 L.Ed.2d 574 (US Supreme Court 1984.)

This landmark case establishes that the concept of "time shifting" is fair use under copyright law. Time shifting is the phenomenon created by VCR which allows viewers to record a show and then watch it at a different time. The case is against Sony that created a technology that would allow viewers to record a show and then watch it at an alternative time. Two aspects of the case include if the recording is legal and if so, then is Sony to be held liable for the copyright infringement that comes as a function of the technology that they developed.

The case established that this recording is indeed fair use and does not violate copyright law, although the viewer is making a complete copy of the show. The court considers this copying a non infringing fair. The ruling states that "noncommercial home use recording" is considered a fair use because of the "noncommercial," "private", and "in the home" nature of the recording.

The case also established the guidelines that would be used to determine if a product or technology constitutes contributory infringement. Because the Betamax VCR had multiple uses, only one of which could be considered infringing, Sony, the provider of the technology is not held as a contributory infringer if any illegal uses result as a function of the technology they created.

This landmark case has multiple significance for understanding ClearPlay. The technology employed by ClearPlay essentially is a machine that is preprogrammed to fast forward through objectionable material. At first glance, without this landmark case, one would assume that the technology employed by ClearPlay is infringing, as the technology is altering the creation of the artist, a right one might argue to be protected by copyright. However, Sony v Universal sets the precedent that in the privacy of one's own viewing, time shifting is allowed. ClearPlay just seemed to be providing the technology to time shift. This point enumerates the major difference between Clean Flicks and ClearPlay. The technology associated with ClearPlay is already legal; the courts aren't legislating what a person can do for their own benefit in the privacy of their own home. No changes were made to the media with ClearPlay, as opposed to Clean Flicks that made permanent changes and then provided them to the public.

Chapter 13 of Lessig's Free Culture addresses his bringing of Eldred to the Supreme Court. A central focus of his case was on the limitation to Congress' power to keep extending the time limits that prevented an artist's work from entering the public domain. The Constitution claims that Congress has the power "to promote the Progress of Science...by securing for limited Times to Authors...exclusive Right to their...Writings..."
This clause in the Constitution grants these rights to authors seemingly only in the context of promoting the progress of science. Once copyright has done its job of encouraging the author to make his discovers or creations public, which can then serve its function of promoting the progress of science, the creation should be in the public domain, available for all to use.

The argument of Eldred has broader implications in terms of the limits of Congress' power. The terms that are allowed to copyright holders are supposed to be limited, but as of now, Congress maintains the power to keep extending the term limits, essentially making the concept of "limited" an open ended deadline, not granting any security that copyrighted materials will ever end up in the public domain.

This concept has implications for the interception of free speech and copyright. Once copyright has served its function as a tool for spreading knowledge, Lessig argues that "copyright is not an engine of free expression. Copyright is a break (227)". The interception of copyright and free speech rights comes to a head again, if one indeed limits the rights of the other.

Lessig has the view that "the purpose of copyright is to enable the commercial market that spreads culture." This then implies that copyright law was created to protect the author only insomuch as it protects them within the commercial market that encourages the spreading of culture. This is an approach to understanding the balance between copyright law and the First Amendment.

Dana, Jens. "No Smugness at ClearPlay." Deseret Morning News. 24 July, 2006.

The article first summarizes the case and then quotes the CEO expressing his disappointment regarding the case classifying his competitors as illegal. His powerful statement is, "While it may be good for ClearPlay, it's bad for parents," and "Moms and dads need all the help they can get to protect their kids." He also said, "..these companies were providing a valuable service."

His statement brings to light some important points. His statement can be seen to equate Clean Flicks and ClearPlay in terms of the cultural influence that they have. They both edit films for inappropriate context. This can be extrapolated to say that both companies, in accomplishing this cultural impact, must be changing the message of the copyrighted work. If not changing them using the same technologies, then by the mere fact that they have the same effect. Under this approach, the editing is producing a new work, that has transformed the function and meaning of the original movie. Using this argument, both editing technologies are producing transformative works, and therefore have latitude to apply fair use.

As well, the CEO's disappointment states that he's not in the business to make a profit. If so, he would be delighted to have no competition. His statement displays that the intentions of these editing companies is for a public service, to ensure that their children have the same opportunity to watch films, without compromising their moral fiber. Although benefiting with commercial gain, that was not the motivating factor for producing the edits. Therefore, with this approach, contrary to the court's ruling, the editing technologies would have 2 of the 4 factors for fair use on their behalf.

An additional thing to consider is, independent of the method of editing, if the same goal is accomplished by the film. This article is an example of someone equating the similarity of Clean Flicks and ClearPlay on the basis that their technologies accomplish the same goal.

Huntsman and Clean Flicks of Colorado, LLC v. Soderbergh, et al. 02-M-1662. (US District Court of Colorado, 2002.)

This case is the initial filing that preempted the Studios' suing of all the editing companies. This is a brief filed by Clean Flicks against the Studios requesting declaratory relief for their editing actions. The declaration is an attempt by Clean Flicks to get preemptive consent for their editing actions before the Studios sued them for copyright infringement.

The case delineates the different methodology of Clean Flicks' editing and production into three categories: 1. Distributing the original as well as edited version to the consumer. 2. Distributing just the edited version, but keeping an original copy on file for every edited version made. 3. Edited movies are purchased by members to be watched in the privacy of their home. The brief also explains the "Huntsman methodology." This is the methodology that ClearPlay uses to edit films. The brief distinguishes the Huntsman methodology from Clean Flicks' and states that "no copies of the original work are made (5)".

This case is crucial for understanding the technological differentiation between Clean Flicks and ClearPlay. Initially CleanFlicks filed a claim against the Studios. The Studios came back and countersued all the editing parties for copyright infringement. Initially ClearPlay was part of the litigation, being sued by Studios. However, we can see from this filing that from the beginning, even from the point of view of Clean Flicks, ClearPlay is singled out because of the nature of its editing. The major differentiation between the two companies is predicated upon their different editing methods. Congress makes note of this difference and created a loophole for ClearPlay in The Family Entertainment Copyright Act of 2005.

It is also important to understand the timeline. This Complaining and Jury Demand was filed in October 2002 and the Family Entertainment Copyright Act was passed in April 2005. The final injunction against CleanFlicks, et al (which no longer included ClearPlay) was established in July 2006.

 

Leslie A. Kelly, et al. vs Arriba Soft Corp., et al., SA CV 99-560 GLT[JW]. (Ninth Circut Court of Appeals 2001)

This is a case that established a precedent for the application of the 4 Factors guidelines that govern the application of fair use. The case addresses the issue of a company Arriba Soft using Kelly’s copyrighted images as thumbnails alongside its search engine results. The guidelines that govern whether or not a use of copyrighted material is fair use include four factors, as established in Title 17, Chapter 1, Section 107 of USC.  No one category is supposed to dominate the others. The four factors are:

1. Purpose and character of the use. If a use is seen to be transformative, significantly altering the character, expression, meaning, adding something new, etc to the original work, then it is seen as transformative. Other purposes of use that help classify a use as fair use include whether it is educational.
2. The Nature of the Copyrighted work. The case brings to light a key point that “the more creative in nature are closer to the core of intended copyright protection (13)”
3. The Amount and Substantiality of portion used.
4. The effect of the use upon the potential market for or value of the copyrighted work.

The statement made in this brief, “The more transformative the new work, the less important the other factors (9)” become sheds light on the development of copyright protection. This statement implies that copyright is here to protect creativity, and less so supports a work that is an edited version of an original, that does not contain new creative input. This view of the function of copyright requires that for ClearPlay and Clean Flicks to be legal, they need demonstrate that their editing includes creativity or adds something to the original work.

 
An author’s creation is protected by copyright only in so much as it is a new expression or completely different use. This is an example of how the First Amendment and Copyright function together, as under this view copyright is meant to protect the expression new ideas.

 
This case fits provides precedent of when the fair use doctrine was used to protect use of copyrighted material and provides a reference point for their applicability.

This source addresses the connection between copyright and free speech. It follows the development of the laws of copyright in order to construct a foundation upon which copyright law was developed. Patterson argues that “ignorance of why it [a legal concept] was created (125)” causes misunderstanding of future developments of legislation pertaining to the original concept. He establishes that free speech rights in the British colonies came as a reaction to the censorship (via copyright) of the British government. The original stationer’s copyright was “a tool of the sensors (126)”.

 

The creation of the Statute of Anne sought not only to control publishers but also benefited the public. Patterson argues that the Statue of Anne incorporated free speech values into copyright. For example, the right of access as a free speech value is incorporated into copyright with the idea of the public domain. Patterson argues that because the Statue of Anne incorporated copyright rules as a reaction to the British censorship, establishes the copyright laws as inherently linked to and supporting of freedom of speech.

 

In order to understand copyright’s function, it’s important to understand copyrights’ origins. Peterson’s argument can be extended to imply that copyright is in existence to support the dissemination of information into the public domain, to grant the public access to created works (in light of the time of the statue, specifically books), and not primarily to protect the author. While Peterson recognizes the importance of the profit motive to encourage author’s creation with respect of copyright, he states that “the proprietary aspects of copyright law must be recognized as being subordinate to the regulatory aspects of the statue (125)”. Peterson’s argument then supports the claim that Clean Flicks and ClearPlay should both be legal, because their function of expression and free speech should supersede copyright laws.

The United States Constitution. Article 1, Section. 8., Clause 8.