GOING, GOING, GONE

BY MICHAEL DOSSIER / July 28, 2006
The DVD Dossier

CleanFlicks, which lost a lawsuit brought by Hollywood directors and movie studios a few weeks ago - but vowed to continue to fight for its right to excise sex, violence and profanity from movies - is closing up shop.

As of today, those who go to the company's homepage are redirected to a "liquidation sale" page with an animated "Going Out of Business" banner informing visitors that this is your "last chance to buy your favorite edited movies" and to "hurry while supplies last."
The sale - restricted to former customers only - may come as a surprise to Judge Richard P. Matsch, who ordered the firm to hand over all inventory to the movie studios.

CLEAN FLICKS AND CLEAN FLIX

BY THE BARON OF DESERET / July 14, 2006
Opinion Piece

Once upon a time, back in February 2004, I started a weblog.

I knew that in addition to general LDS issues, I wanted to focus on movies--and to that end I created a special movie section on the site which, despite not being read by very many people has been a rewarding experience and has generally been updated consistently with two or three new articles every month. At the time, CleanFlix and other such movie cleaning services and technology were in their infancy, and I figured it would only be a matter of weeks before a comprehensive article on them would see the light of day on my new website.

Never happened... The CleanFlix blog article remained on the back-burner for the last two and a half years and has never materialized...mostly because in those two and a half years I've never once used CleanFlix, ClearPlay, or any movie editing service. Surprising, in a sense, because (a) we don't happen to watch R-rated movies, and (b) we live in Utah County where opportunities to rent edited videos are rampant. Seemed like the perfect alignment of stars to make us regular customers....

And yet, everytime I think, 'You know, it might be nice to check out "Lost in Translation" or "Sideways"' and drive by a CleanFlix, I just keep on driving, and have never really developed any serious interest in trying out edited movies. Since CleanFlix and the like have been hot discussion topics lately (see here also) I figured it's probably time I attempt to figure out why I'm not part of the edited movie craze when it seemed inevitable back in 2004.

The key issues from my perspective:

(1) Purism: As a movie purist, I want to see the real movie, not just some arbitrary subset of it. If the movie is supposed to be dark, ugly, and violent--then perhaps it should be seen in its dark, ugly, and violent fullness...or not seen at all. As a commenter in the M* thread remarked, editing movies away from their original intent is a little like buying a copy of Playboy with the pictures cut out just to read the articles. If you care about objectionable content (and I submit you should) it's probably more appropriate to just find some other movie to watch. There's plenty of clean(er) ones out there...

(2) Funding the Enemy: Buying an unedited DVD, and buying an edited DVD from a place that had to buy an unedited DVD first looks exactly the same on the movie studios' income reports. While this fact is a good argument why the studios shouldn't be complaining about edited video places as much as they have, it is also an argument why you might not want to buy edited videos in the first place. Like that pictureless copy of Playboy, you may feel morally superior for finding a way to get some value out of it without wading through the smut, but the purveyors of that smut got just as much of your money with which to line their pockets regardless. You still become one more name on the list of Playboy 'consumers' who keep them running.

If the goal is to encourage the production of better and cleaner entertainment, directly supporting the production of 'bad' forms of entertainment financially, even through a sanitizing middleman, seems to be the exact opposite of what you'd want to do...

(3) The Appearance of Evil: Suppose your bishop is having a casual conversation at a ward activity and says, "Oh, yeah--I read about that in an article in last month's Playboy..." What would your first reaction be? Does that bishop have the luxury of saying to himself: "Of course I only read the 'sanitized' version of Playboy. If everyone else ignorantly jumps to the conclusion that I read the unedited version without first finding out the facts, that's their problem..." But it's not just their problem... Appearances matter.

Many scoff at the idea of "the appearance of evil", and act as if you can take a can of Coors Light, dump it into the sink, fill it with orange juice, and then drink it in public all you like without any harm being done. ("Hey, if people ignorantly assume without finding out the truth, that's their problem...") Lack of credibility or the appearance of unworthiness can have many devastating effects on other people (and yourself), and knowing that people will jump to conclusions without all the evidence, wise people will actively avoid circumstances where they could be misunderstood. The 'truth' doesn't matter much when one or more members have already gone inactive out of disgust for the seeming low standards of their current bishop...

Likewise, if you're on a date and casually start quoting lines from "Sin City" or "Pulp Fiction"--do you have the luxury of assuming your companion won't assume you've just revealed something about your standards in entertainment? Protesting later that you had only seen the clean versions won't matter much if your potential boyfriend/girlfriend has already presumptively crossed you off of the partner suitability list in their head...

(This fact forces some people I know to speak defensively all the time--"I was watching the TV-edited version of "Braveheart" the other day...", "We rented an edited version of "Goodfellas" with all the profanity and violence removed and..." This may help avoid misunderstandings, but at the cost of sounding awkward and/or self-righteous instead.)

Basically, if you're going to maintain standards inwardly, it's frequently beneficial to make sure they are reflected outwardly as well, without attempting to be 'in' the R-rated world but not 'of' the R-rated world amongst people who might not be able to tell the difference...

(4) "Hey, they're just movies...": Both "The Baroness" and I like movies...but they're just a casual, unimportant form of entertainment.

Back in '99 (pre-CleanFlix), when I was at BYU and "The Matrix" came out, it quickly became the hot controversy around campus, with a lot of students who felt they probably shouldn't see it, but couldn't resist, simply because (a) it was supposed to be a 'light' R, and (b) it was the "It" movie of the year, which you just HAD to see if you were anyone. I never did see "The Matrix" (or its 2003 sequels) part because my standards had already been determined, and part because no movie is "must-see". Big name movies come and go every year and no movie--even "The Passion of the Christ" (also unseen by me)--is 'important' and 'life-changing' enough to be worth losing sleep over not seeing. We liked all three "Lord of the Rings" movies, but had we not seen them (as with our friends who don't watch PG-13 movies) it would be no more tragic than going through life not having read "Pride & Prejudice" or not having tasted Rocky Road ice cream. Movies just aren't that important...

This isn't to say CleanFlix and the like shouldn't exist--I think the movie studios' case against them lacks merit especially since (a) they still make the same amount of money and (b) they have little credibility from an 'artistic' standpoint since they edit movies for content on airplanes and TV all the time.

(Tangent: We saw the TV-edited version of an originally R-rated movie last year. After watching it, I glanced at some of the online articles about it, and discovered most of the discussion revolved around the full-frontal nude scene of the lead actress. This nude scene was not in the TV version of course, but more oddly, looking back, "The Baroness" and I couldn't figure out for the life of us where in the movie the scene would have been, as a nude scene from this actress's character had no relationship with anything that happened in the movie. This is significant only to show that oftentimes the R-rated material has no artistic value whatsoever, and is often completely superfluous to the underlying story...)

Due to the technicalities of copyright law, CleanFlix themselves may be in trouble, but ClearPlay seems to be completely legal, so regardless of the outcome of recent court cases there will always be some outlet for those who wish to partake of sanitized films. And yet, for all the reasons above, I don't think we'll be joining them. Edited films seem to present just as many concerns as solutions to the problem of finding clean entertainment, and for the time being it looks like my rendezvous with Scarlett Johansson and Virginia Madsen will just have to wait...

FEDERAL JUDGE BLEEPS DVD EDITING

BY DEBORAH NATHAN, ESQ. / July 13, 2006
Find Law: Legal News & Commentary

A federal judge has stopped the distribution of major motion picture DVDs that were edited by several companies to remove objectionable content, ruling that the sanitized versions infringe the copyrights held by several major movie studios and directors.

Judge Richard P. Matsch of the District of Colorado granted the motion for partial summary judgment made by such cinema luminaries as Steven Soderbergh, Robert Redford, Steven Spielberg, Martin Scorsese and Sydney Pollack.

The directors and several movie studios were defendants in a 2002 lawsuit filed by Clean Flicks of Colorado, Family Flix USA, CleanFilms and Play It Clean Video.

The movie studios included Metro-Goldwyn-Mayer Studios Inc., Time Warner Entertainment Co., Disney Enterprises Inc. and Dreamworks LLC.

The plaintiffs sought a declaratory judgment that they were not infringing any party's copyrights by making edited versions of motion pictures.

The defendants counterclaimed, alleging copyright infringement, and then moved for partial summary judgment.

In response to the counterclaims, the plaintiffs argued that their actions did not constitute copyright infringement because they were making fair use of the copyrighted works.

The fair-use doctrine is an affirmative defense to allegations of copyright infringement. The doctrine allows use of copyrighted works for criticism, comment, news reporting, teaching, scholarship and research.

Courts balance four factors to determine if a particular use is fair: the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion of the work used; and the effect of the use upon the potential market for the work.

As explained in Judge Matsch's opinion, Clean Flicks and Family Flix operated similarly by purchasing an original DVD of a movie. After downloading the DVD onto a computer, they edited the film by deleting sex, nudity, profanity and gory violence.

The companies either sold the edited movies directly or through distributors CleanFilms and Play It Clean.

Judge Matsch weighed the four factors and concluded that the scales tipped in favor of the directors and studios.

The plaintiffs conceded that they were using the DVDs for commercial gain. Second, Judge Matsch said the edits to the movies, although constituting a small percentage of the original films, did nothing to transform the creative expression of the movies.

He explained further that the non-transformative nature of the edited copies, coupled with the creative expressions of the movies, weigh heavily in favor of the studios and directors under the second factor, the nature of the copyrighted work.

The judge also rejected the plaintiffs' claim that their use of the movies had no adverse effect on the value of the copyrighted work to the studios, noting that the argument ignored the intrinsic value of the right to control the content of the copyrighted work.

The plaintiffs also raised a public policy argument, claiming they were criticizing the objectionable content in many movies and were providing more socially acceptable alternatives.

Judge Matsch said that argument was addressed to the wrong branch of government, because courts are not free to determine the social value of copyrighted works.

He observed that during the pendency of the case, Congress enacted the Family Movie Act of 2005, which allowed private households to edit movies if no fixed copy of the movie is created.

The judge said Congress had the opportunity to make the policy choice now urged by the plaintiffs and rejected it.

Agreeing that the plaintiffs were infringing the defendants' copyrights, Judge Matsch enjoined them from continuing to produce and distribute edited versions of the films.

The plaintiffs' attorney, David N. Schacter of Sherman & Howard in Denver, acknowledged that Judge Matsch's opinion was well-reasoned, but said, "I'm disappointed that the court took the decision-making role away from the jury."

COURT BLOCKS SALE OF SANITIZED DVDs

BY CYNTHIA LITTLETON / July 10, 2006
The Hollywood Reporter

A federal judge in Colorado has handed the industry a big win in its protracted legal battle against a handful of small companies in Utah, Arizona and Colorado that offer sanitized versions of theatrical releases on DVD.

The case encompasses two of Hollywood's biggest headaches these days: the culture wars and the disruptive influence of digital technologies.

Senior U.S. District Court Judge Richard Matsch came down squarely on the side of the DGA and the major studios in his ruling that the companies must immediately cease all production, sale and rentals of edited videos. The summary judgment issued Thursday requires the companies -- Utah-based CleanFlicks, CleanFilms and Play It Clean Video, Arizona-based Family Flix United States and the separate entity CleanFlicks of Colorado -- to turn over all existing copies of their edited movies to lawyers for the studios for destruction within five days of the ruling.

Utah-based CleanFlicks, which describes itself as the largest distributor of edited movies, through online sales and rentals and sales to video stores in Utah, Arizona and other states in the region, said it would continue its fight against the guild and the studios. CleanFlicks and the others make copies of official DVD releases and then edit them for sex, nudity, violence and profanity.

"We're disappointed," CleanFlicks chief executive Ray Lines told the The Associated Press. "This is a typical case of David vs. Goliath, but in this case, Hollywood rewrote the ending. We're going to continue to fight."

David Schachter, attorney for CleanFlicks of Colorado, said Sunday that it was unclear whether any of the video-editing companies would seek an emergency hearing this week to request a stay of the injunction pending an appeal. He said such a move was unlikely for CleanFlicks of Colorado, which operates a retail store in Colorado Springs, Colo. It was unclear Sunday whether the store was still open.

Representatives for Family Flix could not be reached for comment during the weekend. A posting on the Web site www.clean-edited-movies.com reported that the Family Flix had decided to shut its doors after five years as a result of the litigation, though the date of the posting was unclear. The site quoted Family Flix founders Richard and Sandra Teraci as making plans to establish their own production company.

CleanFlicks and the others maintained their edited DVDs were legal under fair use guidelines that allow for the use of copyrighted material in criticism, news reporting, parody and other circumstances. The slogan on the CleanFlicks Web site is "It's About Choice." An online listing for Family Flix's offerings on the Web site of the Mormon-based Meridian magazine noted that the content snipped out of its edited videos included all references to "homosexuality, perversion and co-habitation."

The mainstreaming of sophisticated digital editing technologies has fueled the cottage industry of movie sanitizers. CleanFlicks and others purchase an official DVD copy of a film on DVD for each edited version of the title they produce through the use of editing systems and software. The official release disc is included alongside the edited copy in every sale or rental transaction conducted. As such, the companies argued that they had the right on First Amendment and fair use grounds to offer consumers the alternative of an edited version for private viewing, so long as they maintained that "one-to-one" ratio to ensure that copyright holders got their due from the transactions. Matsch disagreed.

"Their business is illegitimate," the judge wrote in his 16-page ruling. "The right to control the content of the copyrighted work ... is the essence of the law of copyright."

The fight began in August 2002 with a pre-emptive legal filing by CleanFlicks against the DGA and 16 prominent directors after it got wind that the guild was preparing a legal case against the company. CleanFlicks sought a court ruling clarifying its right to market the videos on First Amendment grounds. The DGA and directors countersued the following month. After initially staying out of the fray, eight Hollywood studios joined with the directors and the guild in December 2002, filing claims of copyright infringement against CleanFlicks and other companies.

"Whether these films should be edited in a manner that would make them acceptable to more of the public playing on a 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," Matsch wrote. "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."

The studios involved in the suit are MGM, Time Warner Inc., Sony Pictures Entertainment Inc., the The Walt Disney Company, DreamWorks Animation SKG Inc., Universal, Twentieth Century Fox Film Corporation and Paramount Pictures Corporation. The directors named in the initial August 2002 filing included Martin Scorsese, Steven Spielberg, Steven Soderbergh, Michael Mann, Robert Altman, Curtis Hanson, Betty Thomas and DGA president Michael Apted.

Apted called Matsch's ruling a vindication for the guild and its members, especially with its clear support for rights of the work's original creator to protect how their film is presented.

"No matter how many disclaimers are put on the film, it still carries the director's name," Apted said. "So we have great passion about protecting our work, which is our signature and brand identification, against unauthorized editing."

Early on the legal sparring involved Salt Lake City-based ClearPlay, which offers video filtering software that allows for home viewing of cleaned-up versions of Hollywood titles.

ClearPlay offers software programs developed for specific titles that users can run on their computer or ClearPlay's proprietary DVD player along with an official copy of the DVD. With this technology, a nude shot of an actor can be altered to show a silhouette, or profanity can be bleeped out. Because ClearPlay's technology does not involve making an altered DVD copy, it has been shielded from the copyright infringement claims. The debate over movie content filtering activities made its way into Congress, which passed the 2005 Family Movie Act that protects ClearPlay and other software-based filtering companies. Matsch noted that Congress at that time had the opportunity to also carve out legal protections for CleanFlicks and its ilk, but chose not to.

The DGA said in its statement on the ruling it "remains concerned about this exception to copyright protection."

Matsch's opinion could wind up eliminating most of ClearPlay's competition, but company Bill Aho still criticized Matsch's reasoning.

"While it may be good for ClearPlay Inc., it's bad for parents," Aho said. "Moms and dads need all the help they can get to protect their kids, and these companies were providing a valuable service."

THE FILTH STAYS IN THE PICTURE

July 10, 2006
The Guardian

Hollywood last week won a protracted legal battle against companies which produce sanitised versions of its films on DVD when a US judge ordered those firms to turn over all existing copies to studio lawyers for destruction within five days of his ruling.

Senior district court judge Richard Matsch of Colorado ruled that editing movies to delete objectionable language, sex and violence was an "illegitimate business" that hurt Hollywood studios and directors who owned the movie rights.

The order affects the likes of Utah-based CleanFlicks, CleanFilms and Play It Clean Video, Arizona-based Family Flix USA and another CleanFlicks, from Colorado, all of whom have been editing films for violence, sex and bad language, in the face of the studios' wrath. The fight started in August 2002 when CleanFlicks of Utah filed a suit against the Directors Guild of America and 16 leading directors, seeking a court ruling clarifying its right to market the videos on First Amendment grounds. The DGA and directors countersued the following month. By December 2002, the case had snowballed when eight major studios filed suit against CleanFlicks and its peers for copyright infringement.

Utah's CleanFlicks, which says it is the largest distributor of edited movies, declared it would continue to fight studios for the right to produce edited movies.

It claims it should have the legal right to do so because it purchases one copy of a DVD for every edited movie it produces, and includes the original version with the new version when mailing packages to customers. David Schachter, attorney for CleanFlicks of Colorado, said yesterday that his client was unlikely to seek a stay on the injunction, but that it did not preclude others from choosing to do so. A posting on Family Flix's website reported that the company had decided to close its doors after five years as a result of the ruling. The company would routinely edit content for homosexuality, "perversion" and cohabitation - its version of Brokeback Mountain must have been a sight to see.

CLEARPLAY PRESS RELEASE (2006)

Salt Lake City, Utah—July 7, 2006

ClearPlay Responds to CleanFlicks Ruling—Disappointed by court ruling against its competition.

Even though it could clear the field of all competitors, ClearPlay would rather have the courts allow companies that edit DVD’s to continue operations. ClearPlay CEO Bill Aho expressed concern over yesterday’s summary judgment ruling from the District Court of Colorado, which favored Hollywood studios and ordered an immediate injunction against CleanFilms, CleanFlicks and other companies that edit and resell DVD’s. "While it may be good for ClearPlay Inc., it’s bad for parents," said Aho. "Moms and dads need all the help they can get to protect their kids, and these companies were providing a valuable service."

ClearPlay’s unique movie filtering technology was protected by Congress with The Family Movie Act of 2005, and was not affected by yesterday’s ruling. ClearPlay works as a feature in a DVD player to filter regular DVD’s from sex, violence and profanity. CleanFilms, CleanFlicks and others sell or rent edited copies of DVD’s, which the courts deemed a copyright violation.

Unless the courts grant a stay of injunction, ClearPlay will have the only product on the market that offers a legal filtered alternative for popular Hollywood movies. The company currently has filters for 2000 movies, with new titles available every week. ClearPlay is also licensing its movie product, as well as other leading-edge parental control technologies, to multiple markets in media and consumer electronics.