It’s a bit weird to be writing a post about lawsuits that occurred and were resolved years ago, especially since I am not the lawyer that Burt is. But the cases I am writing about had a lasting effect on my view of politics and its followers. And rather than try to stuff everything into a single post, I am going to write about the cases here, and then later why these cases were significant to me.

Conflict:

Around the turn of the century, there was a push towards cleaning up movies. The push did not come from studios in Hollywood, but rather entrepreneurs in (mostly) Utah (one of which, I should add, was named Huntsman). The two highest profile companies were ClearPlay and CleanFlicks. Both of these companies, as well as a third and fourth, were based out of the Beehive State, so I will occasionally refer to them as “the Utah companies.”

ClearPlay sold DVD players that would (with programming) skip over the more unsavory parts of movies. They would have editors go through, clean up the dirty parts, while being sure not to interfere with the telling of the story. They originally boasted 150 movies with a couple dozen being added each month. Concerned parents would buy the DVD through a regular outlet, download the filters, and then be able to watch movies with their kids (or just by themselves) without fear of seeing something they would rather not see. CleanFlicks was slightly different, having opened up VHS/DVD stores and sold the clean versions directly. There was a third company, whose name I cannot find but will call ATC, wherein you would send in the VHS or DVD you bought, which they would destroy, and send you back a clean version.

Thsi created a lot of consternation in Hollywood, and before long, lawsuits were filed by both the Directors Guild Association (DGA) and a little bit later the Motion Picture Association of America (MPAA). Both rested their initial claim on Freedom of Speech. They were being censored. Their artistic vision was being tampered with. There were various op-eds suggesting that there was a danger in allowing people to automatically avoid exposure to things they found unsettling because there is artistic power in being unsettled.

The counterargument to this was rather simple: People should be allowed not to watch movies that they don’t want to watch. Third parties should be allowed to assist them in circumventing this process. To suggest that people should not have the right to skip over parts of a movie they dislike is to argue that a FFW button is a censorious device. That they skip over a scene because it contains elements that they do not prefer to watch rather than that it is a portion of the movie that they find boring is immaterial. In addition, ClearPlay and ATC could argue that there was no likelihood of confusion of the edited product with the original product since both mechanisms had to be affirmatively sought. This was a bit more difficult an argument for CleanFlicks, because somebody could walk in to one of their stores without realizing that they were being sold a different product.

It became apparent rather early on that the latter argument was winning. Whatever this was, directors were not being silenced. The MPAA and DGA arguments then shifted towards copyright infringement. Namely, these companies were making a profit off the studios’ product, without the studios’ permission. The MPAA argued that these companies would make it unfairly difficult for the studios, who actually created the material, to offer any like service.

Resolution:

It was primarily on the copyright argument that they made some headway and won their suit against CleanFlicks. Because CleanFlicks had pre-emptively sued, their case was further along. However, before a decision could ultimately be made with ClearPlay, congress clarified the copyright rules expressly to allow what ClearPlay was doing. ClearPlay is still around. CleanFlicks lost their business model and went under. Trilogy Studios, who had initially tried to sell their ClearPlay-like product directly to the studios, never tried to sell their product directly to consumers. If I recall correctly, ATC folded early under the pressure of the lawsuits and never got a ruling one way or another.

My Thoughts

In the abstract, I actually sided with the Utah companies on this. Which is to say, I believe that they were providing a service and a separate product from the studios (namely, a player). The only one I hesitated to that about is CleanFlicks (which I will get to in a minute). While it was the case that ClearPlay was making money around the studios’ works, the same can be said for the makers of DVD players in general. DVD player producers have to pay all sorts of patents to make their product, but as far as I know they do not have to pay the studios themselves. It is considered mutually beneficial. I doubt that there is even a contract involved. There is, however, an argument that they waived any right to money when they produced a product specifically to be played in a DVD player. I am not sure why that waver would not also apply to a ClearPlay DVD player, however.

With CleanFlicks it is a bit different. They were selling a product with someone else’s trademark on it, that was mostly full of someone else’s material. And they were making a profit by doing so without any sort of contract with the studio. What I don’t fully know is the extent to which you have to have a contract with a studio in order to sell their product, so long as you paid full retail price for the original. I know this applies to individuals (they can’t prevent me from selling my old DVDs) and I’m not sure how it is different for corporations.

CleanFlicks’s major liability, however, should be the original artistic integrity argument. Since ClearPlay and ATC both required an affirmative step and both involve possessing or having possessed the original product, it can be safely assumed that the person who purchases CP’s or ATC’s services are aware that they are not getting the original product. Meanwhile, someone can stumble into CleanFlicks without really knowing what they’re getting. I’m not sure the degree of disclosure required, but that we even have to talk about it makes me understand where the studios are coming from. So I could go either way on this one.

I would support, I suppose, a disclosure requirement for ClearPlay and (if they still existed) ATC, not only to remind people that they are getting an altered product but also so that the clean-up editor gets appropriate credit for his work. As that is an artistic enterprise, I do believe such disclosure should be appropriate. But, as they often do, I felt that the studios simply went too far. Not only failing to offer a service that people clearly wanted, but preventing anyone else from doing so. And as far as the copyright argument goes, while yes ClearPlay gets money off the deal, not a penny is denied to the studios that is owed to the studios for the product they provided. Their argument, to me, has the stench of their common argument that they have a right to control what someone does with a product after they purchase it. I believe this is true insofar as preventing people from copying-and-distributing, but that’s about the extent of it.

While with ClearPlay and ATC, you had to affirmatively send


Category: Courthouse

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