"No More Smut Editors?"

A federal district judge in Colorado has ruled that the company "Clean Flicks" violated the copyright laws by making and renting "family-friendly" versions of movies with sex, profanity, and violence edited out.  (Clear Flicks v. Soderbergh, 2006 WL 1876624 -- can't find it online yet.)  The decision is probably right as a matter of copyright law, although the question seems to me somewhat closer than the judge allowed under the statute's fair-use defense (section 107).  The judge placed heavy emphasis on the fact that Clean Flicks did not add any of its own commentary to the movie -- what courts refer to as "transformational use" -- the way, for example, someone doing a review makes comments after showing a movie clip or quoting a book passage.  As I've argued here, a general problem with making the addition of commentary such a decisive factor is that it excludes from the fair-use defense an activity such as education -- say, the reproduction of part of a text simply to study it -- that has long been thought to be a quintessential fair use.  The judge also found irrelevant any argument that Clean Flicks might not cost the movie producers much economic loss (and might even give them a net gain) since the producers weren't exploiting the market for sanitized versions of their works as it was.  The judge's argument on this score continues a trend of giving copyright holders more and more control over markets for their works even if they can't show economic harm -- a trend that I think is in tension with basic premises of copyright law.

Nevertheless, what Clean Flicks did was probably not a fair use, because the copying of virtually an entire work for commercial use is strongly presumed unfair; because there might have been various kinds of economic loss and reputational harm; and because Congress in 2005 created a specific exemption that allows software helping private viewers to filter objectionable content from an original DVD, but refused to extend the exemption to cover making copies of an altered, sanitized form.

Those are some of the legal issues.  A movie critic at Christianity Today considers the moral issues and also criticizes what Clean Flicks did:

I'd never consider showing my sons "sanitized" versions of [many] films. If you remove the violence and bloodiness of The Passion, what's the point of watching it? The scourging and crucifixion were the very definition of "graphic violence," so why pretend it was anything less?

Moreover, even if parents rent the mature movie and fast forward through the objectionable stuff, there are still differences between that and "having a company do that editing for you" (in other words, the line that Congress drew makes some moral sense):

First is this: I know my sons, and they don't. My wife and I want to be the ones deciding what they can, and can't, watch. If we decide they're ready for exploding heads but not to hear the Lord's name in vain (or vice versa), that's our call, and nobody else's.

Also, if an outside company edits that stuff out, it robs us of a potential "teaching moment." After a couple of years [of watching Raiders of the Lost Ark], we decided to let our boys [h]ear Marion use God's name in vain. And at that moment, I hit "pause" and we talked: "Did you hear what Marion said? How did that make you feel? Did that make the movie any better? Why or why not? Do you ever hear other kids say that at school? What's wrong with saying those words? What does God say about it?" And so forth. It made for a great time of teaching and discussion—arguably more powerful than simply sitting down and reading them the Third Commandment.

I can't imagine having such a teaching moment with an edited version of Raiders of the Lost Ark: "Hey guys, at this point in the original version, Marion uses God's name in vain. If you heard her say that, how would that have made you feel?" Uhh, it just doesn't work nearly as effectively.

Tom