Wednesday, July 12, 2006

As Dirty as We Wanna Be

Here is a link I created to the Colorado "CleanFlicks" decision. To recap, the case involves the unauthorized sale of DVDs and videocassettes that have been altered, without permission, by commercial "family friendly" companies to delete sex, nudity, profanity and gory violence. (I wonder how Mel Gibson's Christ movie fared).

The defendant companies begin with a lawfully made copy and then make unauthorized digital copies which are edited in the aforementioned manner. The case does not involve the sale of filters that are used during the viewing and which do not themselves alter the hard copy: that activity was the subject of the 2005 Family Movie Act, P.L. No. 109-9.

The studios sued for violation of Sections 106(1)-(3) and won summary judgment and a permanent injunction. The defendants asserted fair use. One interesting aspect of the fair use discussion is a perceived paradox on the transformative-derivative work issue. To be an unauthorized derivative work, there needs to be an alteration to the work; yet, to excuse that same conduct under fair use, defendant claimed the alteration was transformative. Haw! said the studios, you admit you are a dirty infringer (pun intended). The studios meanwhile were happy to assert there was an alteration, but then had the reverse paradox in claiming there was no alteration at the fair use stage. Haw! said the family friendly folks, you admit our use is transformative!

There really isn't a paradox, because altering something doesn't make it automatically transformative or fair use: if I crop off the edges of a fabric design to make it fit better for my textile machines, I have altered the original, but hardly "transformed it." The family friendly folks had a stronger case than that, but it can't be said that they provided any new insights or perspectives on the works and that is what Judge Leval meant by transformative.

Still, the case highlights once again, the square peg in the round hole problem that is rapidly overtaking fair use analysis.

21 comments:

GemLaw said...

This seems to be another one of those cases that turn the usual political persuasions on their heads. Reading comments on various places such as Slashdot, I've been surprised to see the number of otherwise strictly law-abiding people--many of them Mormons who apparently patronize the company in Utah--who essentially argue that they have a "right" to view the edited films because the studios won't make movies without sex and profanity. This strikes me as little different from the Napster users who justified their downloading on the basis that CDs cost too much and the record companies make too much money, etc. Too, it seems once again that one of the biggest problems in dealing with laymen's approach to copyright is separating the first sale doctrine from the copyright itself. Even years after Napster, we don't seem to have made a lot of progress.

William Patry said...

Here is a link to the Slashdot comments: http://backslash.slashdot.org/backslash/06/07/11/169230.shtml

My own approach at least attmepts to be non-political on this: if you don't like it, don't watch it or make your own. That's what Mel Gibson did and no one can argue with his financial success, although the Aramaic sounded like slurred Italian.

Joe Gratz said...

Readers who prefer the court's PDF over Microsoft Word format can download one from my blog here.

My commentary is here.

Max said...

Just to be clear, is it correct to say that consumers with the necessary equipment could legally make the changes themselves? That the real issue was that there was another business involved who did it without permission from the copyright holders?

I agree that the Wal-Mart approach is the most obviously legal. For those who aren't aware of it, Wal-Mart often refuses to sell CDs if the lyrics aren't family-friendly, and record companies can't make a profit without Wal-Mart's sales machine. So the copyright holders censor their own stuff that they sell through Wal-Mart.

William Patry said...

don't think it is clear consumers can't do it themselves, although there is no limitation on the reproduction and derivative rights to public events. One nagging issue in fair use analyses is the Kinko's problem: if something may be fair use for an individual, is it also fair use for a third party to do it as an agent, or does the third party have to establish its own entitlement to fair use, something that will include charging for the service?

Fred von Lohmann said...

I think it would almost certainly be a fair use if a movie fan did this for themselves, using a copy they purchased and own (and assuming they used the "analog hole", and thus did not violate the DMCA's ban on circumventing CSS). Certainly there would be no market harm, and the use would be indisputably noncommercial.

As for "transformation," the Supreme Court in the Betamax case has already made it clear that "transformation," while it is one factor to consider, is not dispositive in fair use cases.

So I agree that this really boils down to the "Kinko's problem," as Prof. Patry puts it. Can someone, in exchange for payment, engage in an activity on your behalf that would be a fair use if you did it yourself.

If the answer to this question is "no" (and there are certainly precedents that suggest that), this begs the interesting question -- why?

Anonymous said...

In answer to Fred, wouldn't the "tipping factor" be the exchange of payment? One person making one copy in their home doesn't really threaten the market for the work, but a large company generating revenue by making multiple copies for multiple individuals starts getting into quantifiable market harm.

William Patry said...

Anonymous:

I accept that due to intervention of a third party the scope of activity may be much much larger than otherwise, and that as a business matter that may be the "tipping point" for the decision to sue or not.

My question is, if there is no harm because what each consumer is doing is OK, how does doing that harmless act many times over result in harm? It does lead to profit by the third entity, but it is less clear to me that in such circumstances that profit automatically equates with a loss to copyright owners.

It may reveal or create a market copyright owners now wish to tap into, or, as in the dirty-as-we-wannabe Colorado case, it could be a market copyright owners don't want to exist, that they want to shut down.

Such issues are, I think, what was behind the 2 Live Crew Court's grappling with the nature of the market cognizable under the fourth fair use factor.

Max said...

/* My question is, if there is no harm because what each consumer is doing is OK, how does doing that harmless act many times over result in harm?
*/

That's exactly why I asked the question. And, yes, I consider this "harmless" in that it doesn't *reduce* demand for the movies. CleanFlicks apparently only worked on legally-purchased movies.

OTOH, even the RIAA says it's fair use for me to copy CDs to cassette tapes so that I can listen to them in my car. If I happen to bleep out portions of the music, it seems to me that it would fall under fair use as well. And, of course, I've got a license to listen to the music. Change CD to DVD, etc. and you've got a case similar to this one.

/* It does lead to profit by the third entity, but it is less clear to me that in such circumstances that profit automatically equates with a loss to copyright owners.
*/

That's my general opinion. Owning copyright doesn't mean that you have control over every possible way to make money based on your work. You get control over certain activities (all labeled "copying"). If somebody figures out some way to make money without infringing on those activities, that's not copyright infringement. It may be a reason to rethink the law, but it's not infringement.

William Patry said...

Another satisfied customer

Anonymous said...

gemlaw--
it seems once again that one of the biggest problems in dealing with laymen's approach to copyright

I don't really see the problem here. Copyright is meant solely to serve the public interest. Helping artists can be a means to that end, but is not an end in itself.

While certainly it could be possible for the copyright law that was most beneficial to the public to be confusing to the public and at odds with their norms of behavior, I think that on the whole, those portions of copyright law that ordinary people would tend to be involved with (none of my neighbors own television satellites) probably ought to comply with those norms.

Thus, if people generally think that it ought to be okay to download from Napster, well, why shouldn't it be okay? It might come at a cost in terms of a reduced incentive for authors and thus a reduced satisfaction of some public interests (and n.b. an increased satisfaction of others), but that could be perfectly acceptable.

Personally, I view copyright as being quite similar to Prohibition. Many people at the time were in favor of the idea, but no one really had the will. People ignored the law all over the place. In the end, we all seem to have found that we were better off without Prohibition and without making everyone into outlaws just for continuing to behave pretty much normally.

As I see it, Napster is preferable to encouraging lawbreaking by having laws that strongly conflict with what people actually think is correct behavior and what they actually do.

In some cases this might not be okay. E.g. it was better to get rid of segregation despite popular support for it. But copyright is not all that important. It's not worth keeping strong in opposition to the people it is meant to serve.

Prof. Patry--
My own approach at least attmepts to be non-political on this: if you don't like it, don't watch it or make your own.

So Shakespeare should not have written Hamlet (which was derivative, like pretty much everything he did), instead opting for original plays like The Tempest (which was, IIRC, the only original one he did)?

I disagree. Derivative works are equally valuable artistically and to the public as original works. They are just as prone to be good or bad as original works are.

Frankly, I'd like to see the derivative right get reduced significantly, as it is currently way too expansive. Coupled with long terms, it's seriously depriving us of lots of works, many of which would probably outshine the works upon which they were based.

I do agree, however, that it is time to address the Kinko's problem. You've put it well: how can a lot of non-harmful uses combine to somehow be harmful?

Max--
I don't recall that RIAA ever said that. Certainly they decided to make it a moot point with section 1008, and they've never seemed to be fond of non-AHRA technologies that do the same thing relying on the fair use argument (e.g. the old Diamond Rios).

William Patry said...

Gemlaw:

I don't see the analogy to Shakespeare here. I don't think what the CleanFlicks folks did involved or was intended to involve the create of anything, but rather, merely deletion, and not deletion in the 19th century fair abridgment sense either.

My point was if the defendants are deeply concerned about the existence of family friendly movies, then go out and create some.

Anonymous said...

Prof. Patry--
I'm not Gemlaw, I was merely responding to him. Regarding Cleanflicks, I think that they did create something (and that the court acted quite strangely in reading the fair use transformativeness requirement into the definition of a derivative work) and that even Congress has no problem with the general thrust of what they did, but only with how they did it.

Removing material in a creative fashion can be creative. Different edits of the same footage can yield sufficiently different movies -- compare Star Wars: The Phantom Menace, with The Phantom Edit, which IIRC didn't add anything. Often, it's the sort of thing we'd encourage with a copyright on the changes, when there's no 103(a) concerns. This might not be particularly creative, but does it meed the modicum threshold? Nearly everything else seems to.

Edward Lee said...

Nice discussion. I think the Court goofed up the derivative works analysis. This case is an abridgment case, and it is very reminiscent of the Monty Python case from the Second Circuit.

More of my analysis href="www.elee.cc/blog/">here

William Patry said...

Anon:

Sorry about the misattribution. I agree that different edits can produce a new way of looking at things, and the studios have made a mint by issuing director's cut versions. The Criterion Collection is also market proof for a different version other than the theatrical release. But I still don;t think one can fairly describe what the Clean Folks are doing as falling within that; they had no creative or aesthetic objective, or smittin' smut.

William Patry said...

Here is a link to a discussion on the great Randy Picker's blog:

http://uchicagolaw.typepad.com/faculty/2006/07/cleanflicks_and.html

As a Chicago guy, he appropriately looks at market issues.

Dean C. Rowan said...

Perhaps we can view this question:

"[I]f there is no harm because what each consumer is doing is OK, how does doing that harmless act many times over result in harm?"

...as a variety of Sorites Paradox, although the logical nature of the paradox in this context is adulterated quite a bit. Still, for the sake of argument, we acknowledge "no harm" when an individual independently makes fair use of a work, and "harm" when some unspecified large number of individuals have done so--this last remark disregards Mr. Patry's query as to whether third party profits entail an encroachment on the rights holder's market--but we can't point to where, precisely, harm emerged.

This perspective dispenses with the Kinko's problem--and Mr. Von Lohman's query--because the introduction of third party facilitation of harm becomes logically irrelevant. Practically speaking, however, it helps to specify a single liable party to whom the cause of harm could be imputed.

Enough with the gratuitous puzzling already. I guess what this approach might helpfully show--as if demonstration were needed--is that a good deal of vagueness informs fourth factor analysis.

Anonymous said...

Prof. Patry--
But I still don;t think one can fairly describe what the Clean Folks are doing as falling within that; they had no creative or aesthetic objective, or smittin' smut.

That sounds a bit like Nimmer's suggestion that artistic intent is a copyrightability requirement along with originality, et al. I don't disagree with that, but I haven't seen any courts discuss it.

In any case, setting that aside, I think that the creative choice as to what edits to make is enough for the low creativity requirement. While any specific edit might not be, in aggregate, they likely are, just like a compilation. And even if not, remember that the definition of a derivative work doesn't always require creativity. It does if it is to be copyrighted, but as I read the statute, one can make an uncreative derivative that is not copyrightable, but which does infringe on the 106(3) right.

So I still think the court dropped the ball on that part of the analysis. As for fair use, I think it'd depend entirely on the fourth factor, and whether this would be allowed in the home, and if we got rid of Kinko's. Even if we charitably assume that it's transformative, it's only barely so, which is likely not enough, and two other factors are certainly aligned against it.

another anon said...

The sad part of this case is that it wasn't Monty Python, artists' rights were not directly (uhg) addressed and the fair use analysis was lame even if the outcome may have been correct. For example, repurposing, though not transformative at all in the real sense of the term and having nothing to do with a "transformative" analysis, could be a fair use. Time shifting as in Sony is a simple repurposing - - nothing transformative about it at all. Though dicussed, the court completlely missed that aspect of the Bill Graham v. DK decision as applied to the CleanFlix facts. The decision makes too much haste to get to its desired social end - - censorship is bad and regular civil law rules won't be twisted to make it allowable - - at least not in Colorado. I just wish the court had gotten there through a more principled path consistent with a sound copyright analysis.

Matthew Saunders said...

if something may be fair use for an individual, is it also fair use for a third party to do it as an agent, or does the third party have to establish its own entitlement to fair use, something that will include charging for the service?

Perhaps this will soon be renamed "the Cablevision DVR" problem.

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