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Naughty
Bits
A
couple of years ago, a Utah company called CleanFlicks began
to offer sanitized versions of popular Hollywood movies. The
company took store-bought copies of the movies and removed
the naughty parts—the swearing, the nudity, and the violence—and
rented or sold them to a grateful Red State public.
There was lots of Blue State tongue clicking and headshaking
about this, myself included. And a bunch of movie studios
and producers (like James Cameron and Steven Spielberg) brought
a lawsuit against CleanFlicks, alleging all sorts of infringements,
desecrations, and other terrible things that CleanFlicks had
committed against their art, their vision, their masterpieces.
How could a bunch of prissy, fundamentalist fanatics be allowed
to brazenly hack up their films?
The CleanFlicks case has been quietly stuck in litigation
hell ever since it started; meanwhile, CleanFlicks has been
allowed to stay in business. Numerous other competing businesses
have popped up as well, offering movie cleansing software
and services to that spooky, unblinking, but apparently significant
portion of the country who want to see blockbuster Hollywood
movies, but don’t want to see titties, blood, and gay people,
and really don’t want to hear the F-word. Or the S-word. And
probably not the D-word, either.
A few weeks ago, God told Congress to pass the Family Entertainment
Copyright Act, and Congress, of course, did it. And our president,
also following orders from the Higher Power, signed the FECA
into law, and now it is explicitly legal to own a device that
takes the naughty bits out of movies, Lord be praised.
All liberal irony aside, in my opinion, the FECA is the law
and it is good. The evangelical jihad has unwittingly done
us all a big solid.
A few weeks ago, the Bravo network ran a special titled Bleep!
Censoring Hollywood, decrying the FECA. It was utter nonsense.
Rubbish. The FECA has nothing to do with censorship. Only
the government can censor; nobody is forcing an individual
to watch a movie with some parts clipped out. It’s purely
a matter of individual choice. The Berkshire Eagle
ran an ominous editorial accusing the religious right of turning
entertainment into “agitprop for its own narrow tastes,” and
of attempting to deprive us all of “livelier, racier fare.”
The Eagle should have known better. The cultural sky
may be falling, but the FECA isn’t the reason. Here’s why:
What the FECA allows is for people to use editing devices
to alter copies of movies they already own. It does not allow
anyone to manufacture new copies. Even CleanFlicks sells and
rents only edited versions of authorized, store-bought copies
of movies.
Even without the FECA, this is legal under a provision of
the Copyright Act called the “first-sale doctrine.” Once you
have bought a legitimate copy of a copyrighted work, the law
allows you to do pretty much anything you want with your copy.
This shouldn’t be too surprising. Think about making mix tapes
of songs from CDs, crossing out passages in a book, or tearing
out the pages of a magazine. Think about cutting and pasting.
The first-sale doctrine is a cornerstone of what copyright
guru Larry Lessig calls “remix culture.”
The FECA merely reinforces the freedoms guaranteed by first-sale
doctrine, and cuts off the industry challenges to the CleanFlicks
of the world threatened by those freedoms. This is not an
issue of censorship and decency, however much Hollywood and
Big Media would like you to think so. This is about the first-sale
doctrine, which Hollywood, Big Media and the software cabal
hate and would love to dismantle. This is all about corporate
control of copyrighted works, and ongoing attempts by the
increasingly consolidated information industries to virtually
hang out in your living room and in your computer and tell
you what to look at and what to listen to. And for once, Big
Media got beat, and we all have the fanatical religious right
to thank for this small but stunning victory! How weird is
that?
It comes down to this: James Cameron and Steven Spielberg
have no more right to tell you how to watch their movies than
Steve Leon has to tell you how you should read Metroland.
Go ahead, throw out the adult supplement. Or don’t.
It occurs to me that there is a small fortune to be made by
using the reciprocal of the CleanFlicks technology and the
reinforced freedoms of the FECA to create a program that would
edit out the “plot development” parts from porn films. If
you run with that, please cut me in for 10 percent.
And to those film directors, the auteurs who are whining that
the FECA will hasten the desecration of their precious art,
vision, and masterpieces, I got one word for you:
Gigli.
Paul
C. Rapp is an intellectual-property lawyer with offices in
Albany and Housatonic, Mass. He teaches art & entertainment
and copyright law at Albany Law School. Contact info can be
found at www.paulrapp.com.
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Columns
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