Editing Hollywood movies for sex, violence, profanity and nudity is an illegitimate business according to a federal district court ruling last Thursday. The major Hollywood studios and a long list of famous directors sued CleanFlicks, Family Flix, CleanFilms and Play It Clean Video for copyright infringement and won when the court decided that the business of commercially producing edited DVDs devoid of “offensive” content violates the Studios exclusive rights of reproduction and distribution. The primary defense of Cleanflicks and the other editors was fair use.
First, the court rejected the companies' defense that their substantial copying is fair use and that the court should adopt a public policy test that they are criticizing objectionable content and providing socially acceptable alternatives:
This argument is inconsequential to copyright law and is addressed in the wrong forum. This Court is not free to determine the social value of copyrighted works. What is protected are the creator's rights to protect its creation in the form in which it was created.
Both the studios and the editing companies claimed that the edited DVDs are derivative works. The editing companies claimed that the DVDs are transformative to bolster their fair use claim. The court rejected this argument because for a work to qualify as transformative something new must be added and the editing companies “add nothing new to these movies. They delete scenes and dialogue from them.” The judge then applies this reasoning to say that the works are also not derivative, which is a narrow (and arguably incorrect) definition of what is derivative (since the edited version meets the definition of derivative work which includes “any other form in which a work may be recast, transformed or adapted.”)
The court also rejected the editing companies' argument that their edited versions do not hurt the value of the studios copyright, and if anything the studios benefit because the edited versions reach an audience who would otherwise not purchase the DVDs. The court rejected this because
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 merely a matter of marketing; it is a question of what audience the copyright owner wants to reach.
This is significant because the court is saying that the studios have moral rights in their content and the right to reach whatever audience they want to reach.
What is noticeably missing from this case is the DMCA. The companies may have violated the DMCAs prohibition of circumventing encryption when the companies circumvented the DVD's CSS encryption to edit the movies:
It then makes a digital copy of the entire movie onto a hard drive of a computer, overcoming such technology as a digital content scrambling protection system in teh acquired DVD, that is designed to prevent copying.
The Studios didn't need to bring up the DMCA to get the editing companies shut down and were likely avoiding drawing attention to the scope of the DMCA.