In “What a Bleeping Shame,” Jon Last gives an overview of the CleanFlicks decision, which found that companies selling bowdlerized copies of popular movies (but which bought and warehoused one original DVD for each cleaned copy they sold) were infringing copyright. But there are scattered errors, such as:
The law takes copyright seriously. It’s one of the few rights actually enshrined in the Constitution.
Actually, it’s not. Last is presumably referring to the clause of Article 1, Section 8 that gives Congress the power to create “exclusive rights” in original works, which puts copyright on all fours with any other statutory claim under the Commece Clause. Congress can make copyright as strong or weak as it pleases, or do away with it entirely. Of course, the Standard seems to hold the same view of the First and Fourth Amendments, so maybe this is just a function of their idiosyncratic understanding of what it means to be “enshrined in the constitution.” Later:
But on this count, they had already been rebuffed by Congress, which, in the Family Movie Act passed in 2005, provided an explicit fair use exemption for people who wanted to edit movies in the privacy of their own homes. This right to create a “criticized” version of a movie was not, however, extended to commercial businesses.
Now, I wrote about the Family Movie Act when it passed, so this strikes me as especially odd: The FMA was passed precisely in response to commercial businesses like ClearPlay, which provide special players that automatically create filtered versions of supported movies on the fly, as they’re being played from the original DVD. And in fact, that, rather than some commercial/noncommercial distinction, is the key to why ClearPlay’s business model is legal and CleanFlicks isn’t: The former does the filtering between the player and the screen, while the latter does it on a new disc.
Now it might’ve been interesting to go into how strangely the law is now required to treat essentially identical services based on these somewhat arbitrary differences in how they function: The studios core argument was about artistic control, and ClearPlay impinges on that just as much as CleanFlicks. Similarly, Last might have mentioned (but didn’t) the First Sale doctrine argument: A business that bought up books, crossed out any profanity with a Sharpie, and resold them would unambiguously be in the clear on First Sale grounds. But as a side-effect of how digital technology works, First Sale rights essentially vanish in the digital realm: I have a clear right to give or sell you a book I’ve bought, but the only way I can “transfer” a downloaded movie to you (without selling you the whole computer, I guess) is to make a copy for you while deleting my own.
But these topics don’t interest Last, because hey, there’s a culture war argument to be made:
Mind you, the Hollywood contention that the lawsuit was about creative control and artistic integrity didn’t hold much water. After all, studios routinely sell significantly edited versions of their movies (and edited in the same way CleanFlicks does, to remove nudity, profanity, and gore) for broadcast on airplanes or television….It’s one thing to show a cleaned-up version of Wedding Crashers for the enjoyment of passengers on a flight from Los Angeles to Paris; but for a family in Provo to be able to watch it together is another matter entirely. One of the conservative complaints about Hollywood has always been that it’s a town where people will exploit anything for a dollar. But it seems that there are still limits: Catering to a religious audience is something the studios just won’t do.
This is, of course, stupid. The point is not control for a particular purpose (sticking it to Christians!) but control period, which is why the studios opposed the Family Movie Act too. The point is not that directors like jet setters and loathe midwesterners (true though that may be), it’s that jet setters get an edited version that the studios approve when and if the studios approve. So Last is right that the case “did open a window onto the soul of Hollyood.” Shame he’s too busy rereading his script from Culture War 29: Republicans Strike Back to look through it.