This article, which was linked on Slashdot, doesn't go into as much detail as I'd like, but I thought that it was worth posting anyway. The gist is that a small industry has sprung up that edits movies for offensive (to Mormons, specifically, I think) content and then makes the bowdlerized versions available for either sale or rental (actually the process by which the edited products get to their audience is a bit more complicated, I think, but that's close enough). A coalition of film studios and directors filed suit to stop this practice, arguing that it violates the creative artistic expression of those that originally made the films. A judge has ruled agaist the editing companies, and they have vowed to continue the legal fight.
I don't know that I agree with the ruling. I find bowdlerization distasteful, but I feel about it the same way that I do about the colorization of black and white movies--as long as the original is untouched and is available to consumers, I'm not sure that I see the harm. As long as the edited versions are clearly labeled as such (and I assume that the companies doing the editing would, for their own marketing purposes, want to label them fairly prominently as having been cleaned up), so that they can't be confused with the original, what damage has been done? I could see requiring the rental places that stock the bowdlerized versions to also stock the originals, so that consumers could choose which version they want, and I could see barring the broadcast of the censored versions of the films*, but having them as an option for rental or sale doesn't strike me as wrong.
*Movies have been edited for length and content prior to being aired on network TV for ages. Are these versions dcast edited by the film companies that produced them, or by the TV studios that air them, does anybody know? If it's the latter, I assume that this ruling would prevent that as well.
Posted by ElJay (Member # 6358) on :
I read a couple of articles about this last week. . . the question I couldn't find answered is how are the studios being compensated for the edited copies sold? The article in the SL Tribune said that the editing companies were burning DVDs of the sanitized films. So do the buy a copy of the "real" DVD for each one they sell? I'd think it would have been mentioned (and the editing companies wouldn't have a leg to stand on) if the studios weren't being compensated at all, and these were basically pirited copies.
Posted by Shmuel (Member # 7586) on :
quote:Movies have been edited for length and content prior to being aired on network TV for ages. Are these versions dcast edited by the film companies that produced them, or by the TV studios that air them, does anybody know? If it's the latter, I assume that this ruling would prevent that as well.
A friend of mine used to edit shows for time and content at the local TV station he worked at.
Posted by Shmuel (Member # 7586) on :
quote:So do the buy a copy of the "real" DVD for each one they sell?
Precisely.
Posted by Palliard (Member # 8109) on :
The ability to keep movies pristine has been lost anyway. Anybody with a PC can rip a movie, re-cut it, re-dub it, and share it.
I think the basic objection here was that somebody was making money doing that who wasn't the studio.
Posted by JennaDean (Member # 8816) on :
I've seen some movies on TV where the actors had come back in and re-recorded their lines to replace the profanity, so the movies could be shown on TV. I was under the impression that the movie makers were complicit in editing their own movies for TV.
If that's the case, they ought to offer those edited versions for sale; it seems they would profit from making their movies available to a wider audience.
Of course, there are some movies that wouldn't suffer a bit from "cleaning up"; but there are some movies that would lose their meaning, that got their rating because of the theme of the movie and not the number of swear words. The movie studios could decide which movies wouldn't be ruined by editing, and offer those.
Posted by TheHumanTarget (Member # 7129) on :
Movies are licensed for broadcast on television, and I would assume that there is a provision that allows for time/content editing (presuming that the studio is allowed to vet the edits).
What these companies are doing is illegal without an agreement with the studios that allows them to modify and resell their merchandise.
Posted by TheHumanTarget (Member # 7129) on :
quote: Of course, there are some movies that wouldn't suffer a bit from "cleaning up";
Very true, but can you imagine watching Pulp Fiction with all of the "questionable" parts edited out?
Posted by JennaDean (Member # 8816) on :
Exactly. What would be the point?
So you have to pick and choose your movies.
Like Pretty Woman - even if you took out all the sex and profanity, it's still a movie about a hooker. You can't change that theme, that movie is not going to be appropriate for children no matter what.
But Breakfast Club, they took out all the "f-bombs" to show it on TV, and it's still an enjoyable movie. Of course, I've only ever seen the TV version, so maybe I'm missing something really important. Posted by Sergeant (Member # 8749) on :
Now what about the company ClearPlay which doesn't actually edit the video but provide a digital mask file that a special DVD player edit the movie on the fly. The DVD is not altered but just played in a special DVD player.
I think this is totally OK but I don't know if they were involved in the case.
Sergeant
Posted by Noemon (Member # 1115) on :
quote:Originally posted by TheHumanTarget: What these companies are doing is illegal without an agreement with the studios that allows them to modify and resell their merchandise.
That is the tack that I'd have expected the studios to take, but if the article I linked to is any indication they seem to have been arguing it primarily in terms of the violation of the directors' creative visions.
ElJay, were any of the articles that you read any better than the one I linked to? If so, do you have the links to them handy?
Posted by TheHumanTarget (Member # 7129) on :
As long as the method used to screen the DVD requires a separate program and the purchase of an individual DVD, I don't see the problem with it.
Posted by ElJay (Member # 6358) on :
Hmmm, I know one was in the Salt Lake Tribune. . .
Here ya go! I don't know about better, but it's a bit more detailed.
Posted by Shmuel (Member # 7586) on :
quote:Originally posted by Sergeant: Now what about the company ClearPlay which doesn't actually edit the video but provide a digital mask file that a special DVD player edit the movie on the fly. The DVD is not altered but just played in a special DVD player.
The movie industry is equally unhappy about that, but Congress passed the 2005 Family Movie Act specifically allowing it. See the Washington Post article, on page 2. Posted by Noemon (Member # 1115) on :
Thanks ElJay!
Posted by MrSquicky (Member # 1802) on :
I don't really have much of a problem with the concept of editing the movies for content, but in this case the people are doing it against the will of the copyright holder. I don't see much wiggle room there; you don't get to alter someone's intellectual property without their express permission.
Posted by katharina (Member # 827) on :
I wish the movie studios would give permission. They give permission for the TV and airplane versions - why not for kid versions?
Posted by starLisa (Member # 8384) on :
quote:Originally posted by Noemon: I don't know that I agree with the ruling. I find bowdlerization distasteful, but I feel about it the same way that I do about the colorization of black and white movies--as long as the original is untouched and is available to consumers, I'm not sure that I see the harm.
It's an ownership thing. It's not theirs. Imagine how OSC would react to someone selling copies of his books with all the mentions of God taken out.
Posted by starLisa (Member # 8384) on :
They get paid for the TV and airplane versions. What's happening here sounds like plain and simple piracy.
Posted by TheHumanTarget (Member # 7129) on :
quote:I wish the movie studios would give permission. They give permission for the TV and airplane versions - why not for kid versions?
Again...I think this is more of a licensing issue. With television, broadcast rights are negotiated, and in some cases the advertising revenues are shared, etc. It's not a question of selling copies of an edited version being a good idea, just one of not being profitable or able to be mass-marketed.
Posted by MrSquicky (Member # 1802) on :
I don't know, is this for kids? Seems to me we're not exactly lacking in children's entertainment. I don't really see a compelling need to do something like this so that kids can watch previously R films.
Posted by TheHumanTarget (Member # 7129) on :
Lisa-
I almost feel giddy! We agree on something.
Posted by docmagik (Member # 1131) on :
What keeps it from being "plain" and "simple" piracy is the fact that a copy of the film is PURCHASED for every copy sold.
This isn't like if, say, I copied your trademarked wallpaper pattern and sold it myself. It's more like, say, if I bought a bunch of your trademarked wallpaper pattern at full retail price, and then added embellishments I thought would make my customers like it better, and then sold it as "customized" or "designer" versions of the previous product.
Like selling "designer" jeans. They're still real Levis I paid full price for, but I've added sequins or whatever and I'm reselling them.
It's not me selling Levis knock-offs that Levis didn't get a dime for.
Posted by TheHumanTarget (Member # 7129) on :
doc- Assuming your reselling of Levi's ever rose to their attention, you can bet that they would call your "embellishments" an infringement of their trademark, and ask you to stop marketing your products as a designer version.
Posted by starLisa (Member # 8384) on :
Is a copy purchased for every copy sold? I've heard people suggesting that this would make it okay, but I haven't seen anything to suggest that it's actually the case.
Though I still wonder whether an author like OSC would be okay with someone buying a crate of copies of Speaker for the Dead and ripping all the Christianity out of it them before reselling them.
Posted by docmagik (Member # 1131) on :
Look, the studios could eliminate this market in a heartbeat, if they'd just market the airplane versions themselves. They used to market the airplane versions anyway.
They'd save a ton on litigation, and they'd probably be able to re-sell DVDs to people who had already purchased the full versions, so there's even a way to re-dip into previous markets.
If certain filmmakers (eg Speilberg) are opposed to having those versions of their films out, that's fine. Those studios can include that in contracts and hold off on creating those versions.
But I know Zemeckis specifically shot scenes from the first Back to the Future film twice, so there would be footage to use for the television and airplane versions. Not all filmmakers are opposed to having alternate means of distributing their films--they correctly see that as an alternate revenue stream for the film.
In fact, they could even go so far as to create family-friendly feature cuts of some films for theatrical release at "family" theatres.
Obviously, this wouldn't work for all movies. As mentioned in this thread, there are some movies that thematically make themselves uneditable. But for movies like, say, Crimson Tide, which are terrific films that are thematically fine for families, but profanity laced, this would be a great way for the studio to expand audiences.
Much like the "Unrated" edition audiences tap certain other audiences.
Posted by Jon Boy (Member # 4284) on :
quote:Originally posted by starLisa: Is a copy purchased for every copy sold? I've heard people suggesting that this would make it okay, but I haven't seen anything to suggest that it's actually the case.
It's always been my understanding that there's a real copy for every edited copy. Here's what CleanFilms' site says:
quote:Yes. CleanFilms is a Co-operative rental club. All subscribers to our service become members of the Co-op. The Co-op collectively purchases original, unedited DVD movies then has them edited - always maintaining a 1 to 1 ratio of edited and non-edited originals.
If these operations were practicing out-and-out piracy, they wouldn't have a legal leg to stand on and would have been shut down a long time ago.
Posted by MrSquicky (Member # 1802) on :
quote:Though I still wonder whether an author like OSC would be okay with someone buying a crate of copies of Speaker for the Dead and ripping all the Christianity out of it them before reselling them.
Or imagine that someone added cursing to Ender's Game and Ender's Shadow to make it more realistic. Would this be okay?
Posted by MrSquicky (Member # 1802) on :
quote:If these operations were practicing out-and-out piracy, they wouldn't have a legal leg to stand on and would have been shut down a long time ago.
I still don't see how they have a legal leg to stand on. They're altering and selling someone else's copyrighted property against the wishes of the copyright holder. I don't get why people think that's okay.
Posted by docmagik (Member # 1131) on :
quote:Is a copy purchased for every copy sold?
Yes.
The places that sell them work like this:
You go out and buy a copy of, say, Titanic, on DVD or VHS. You mail it to the company because you want it edited.
The idea being that once you've bought the tape, you can do with it as you will.
But here's the sticky part: The company does not actually edit your copy. Instead, they take a copy they've made of their edit and send it to you, along with your original tape or DVD, which they render unplayable. So the only version you have that works is one that, for all intents and purposes, looks like a pirated copy.
But you've still paid for the original version.
So it's all confusing and complicated. Would it be different if you were editing the orignal copy? Is there a difference between them giving you an edited version, and them editing your version, since what you have in your house is essentially the same?
Posted by fugu13 (Member # 2859) on :
They were practicing out-and-out piracy, they just tried really hard to convince people otherwise. They didn't have a legal leg to stand on, this was as clear-cut a violation of copyright law as you see.
Regarding their 'co-op' argument, owning an original, unedited DVD does not in any way give you the right to produce an edited copy (derivative work) that is for anyone else's use (with a few exceptions such as parody that are nowhere near what they were doing). There's no ambiguity.
Posted by Jon Boy (Member # 4284) on :
quote:Originally posted by fugu13: Regarding their 'co-op' argument, owning an original, unedited DVD does not in any way give you the right to produce an edited copy (derivative work) that is for anyone else's use (with a few exceptions such as parody that are nowhere near what they were doing). There's no ambiguity.
Good point, fugu. I hadn't considered that.
Posted by docmagik (Member # 1131) on :
The ambiguity comes from them calling it a co-op. That implies that, as a group, you're using them for your own use.
Look, I'm not arguing that what they were doing was right. I've never used one of these services and in all likelihood never will, because it is so ambiguous, and I don't like to play in the muddy waters of moral ambiguity.
What I'm arguing against is the idea that it's simple.
Posted by Noemon (Member # 1115) on :
quote:Originally posted by fugu13: They were practicing out-and-out piracy, they just tried really hard to convince people otherwise. They didn't have a legal leg to stand on, this was as clear-cut a violation of copyright law as you see.
Regarding their 'co-op' argument, owning an original, unedited DVD does not in any way give you the right to produce an edited copy (derivative work) that is for anyone else's use (with a few exceptions such as parody that are nowhere near what they were doing). There's no ambiguity.
If that were the case, if it really were a cut and dried example of piracy, why wouldn't the group bringing suit have pursued that angle? It's possible that they did, but if so neither of the articles I've read on the subject have said so. Does anyone know for certain whether they did or not?
Posted by fugu13 (Member # 2859) on :
It doesn't matter what you call the arrangement. Modifying a work (legally obtained or not) for anything other than certain extremely specific purposes and giving it to another person is infringement, regardless of whether or not that other person owns an unmodifired version of the work. It doesn't matter what you call the system set up to do this one whit. This is simple, obvious, blatant copyright infringement.
As for the pursuit of the suit, the MPAA and RIAA have this notion that by making statements about defending artists they're improving their public image and convincing people not to pirate. Watched any of their in-theater PSAs recently?
Additionally, the specific people bringing the suit appear to be (wealthy) directors. They're going to emphasize that they don't like people doing things to their works, because that's the whole reason they're bringing the suit. Maybe they'd be okay with it from a purely commercial point of view (they certainly make a good deal of money already) or maybe not, but what really ticks them off is somebody other than themselves altering their works, so of course that's what they're going to play up.
And, it doesn't much matter how they argue that its copyright infringement, the result is exactly the same. They did pursue the angle that it was obviously copyright infringement (that was, after all, the grounds on which the suit was decided), they just emphasized the part of the justification for copyright laws that most identified their grievance.
Posted by Dagonee (Member # 5818) on :
quote:Originally posted by starLisa: They get paid for the TV and airplane versions. What's happening here sounds like plain and simple piracy.
My understanding is that they pay for an original DVD for each sanitized copy they sell or rent.
It still violates copyright law (the derivative work right), but it's not piracy in the classic copyright sense.
Has anyone found a definitive statement one way or the other about whether they buy a copy for each copy they sell?
quote:They were practicing out-and-out piracy, they just tried really hard to convince people otherwise. They didn't have a legal leg to stand on, this was as clear-cut a violation of copyright law as you see.
I agree it's clear cut copyright infringement. I disagree that it's covered by the term "piracy."
Posted by Bob the Lawyer (Member # 3278) on :
It's funny that this bugs me more than "regular" copyright infringement. The idea of someone downloading the original movie is much less irksome than the idea of someone altering it and then reselling it. I imagine I'd be livid if I saw something with my name on it that wasn't what I had created.
Posted by fugu13 (Member # 2859) on :
I should point out that I'm using piracy in a (moderately) loose sense of any obvious copyright infringement.
Posted by Dagonee (Member # 5818) on :
quote:They're altering and selling someone else's copyrighted property against the wishes of the copyright holder. I don't get why people think that's okay.
There are many people who think that the "moral rights" aspect of copyright protection is not OK - that if the economic interest is protected, then the underlying policy justification for copyright is fulfilled. Any law that grants rights outside this justification is, under this view, too broad.
I don't agree with them, but if you're really interested in "getting" why people think it's OK, there are dozens of articles on the subject of economic v. moral rights justifications for copyright.
Note that none of this changes the clarity of the violation of existing copyright laws in this case. The articles are calling for changes to the laws.
Note also that Congress would be well within its constitutional powers to declare that fair use includes editing for indecency and profanity.
Posted by fugu13 (Member # 2859) on :
If that happens, I can't wait for someone creative to start creating some very interesting edits of films based on novel notions of indecency and profanity . . .
Definitely within the power of Congress, though. Of course, having reasonable copyright terms is also within their power, so I'd prefer they start with that . They could do them both at once, though.
I should say, some sort of exemption for activities like this would make sense to me, though the exemption might take a surprising amount of effort to construct.
Posted by SenojRetep (Member # 8614) on :
I'm trying to understand the copyright issues.
Postulate that I bought a DVD of, say, Titanic. I don't want to watch the offensive portions, so I decide to create an edited copy for myself. If I do this personally I believe I'm within my rights as a consumer. If I send it to a company and pay them to create the copy, evidentally I am not. If the company made directions available online (for a fee) that allowed users to make the appropriate mods, would that be similarly illegal? Would it be morally reprehensible (to those who find the copyright infringement offensive)?
Posted by Dagonee (Member # 5818) on :
quote:Of course, having reasonable copyright terms is also within their power, so I'd prefer they start with that [Wink] . ...
I should say, some sort of exemption for activities like this would make sense to me, though the exemption might take a surprising amount of effort to construct.
I agree with both these points.
The competing theories of copyright are fun to get into. The constitutional justification is purely economic (to ensure the availability) but it's easy to cast moral rights into economic terms (purity of the brand, etc.). It manages to touch on all kinds of issues most people don't think of when they think, "copyright."
Posted by fugu13 (Member # 2859) on :
Senoj: that should be completely fine under the law, though I wouldn't be surprised if somebody tried to use DMCA notices to keep a site doing that offline until someone fought back.
Posted by Jon Boy (Member # 4284) on :
quote:Originally posted by Dagonee: Has anyone found a definitive statement one way or the other about whether they buy a copy for each copy they sell?
Look at one of my previous posts. I checked out the Web sites for CleanFlicks and CleanFilms, and the former didn't say, but the latter did explicitly state that they buy one copy for every edited copy. That would explain why it costs about $10 more than retail price to buy an edited DVD from them.
Posted by KarlEd (Member # 571) on :
Noemon:
quote:If that were the case, if it really were a cut and dried example of piracy, why wouldn't the group bringing suit have pursued that angle? It's possible that they did, but if so neither of the articles I've read on the subject have said so. Does anyone know for certain whether they did or not?
I don't think the issue was piracy (even if this case could have also been pursued under that angle). It was probably much more important to the producers of these original films (the studios, directors, etc) that their original work not be bastardized and redistributed by a 3rd party. If this is their aim, it is more important to argue and get a ruling on this issue even if piracy was also a legitimate complaint. I don't think the studios saw this so much as closing down one company as nipping a larger issue in the bud. If they just wanted to close down the company, piracy (if it applied) might have been just as good an arguement. In this case, it either didn't apply, or the plaintiffs cared more about the larger creative control issues.
Posted by Dagonee (Member # 5818) on :
Thank you, Jon Boy. I'd be surprised if that were not the case.
Posted by KarlEd (Member # 571) on :
Also, if the defendant company in this case had won, then what would prevent me from making any other type of derivative work from a studio's original film and re-selling it as my own as long as I purchased a copy of the original first?
And if it was OK, as long as I purchased an original, couldn't I just as easily purchase discount or 2nd-hand originals and do the same thing?
Posted by Noemon (Member # 1115) on :
Ah, that makes a lot of sense. Thanks Karl!
Posted by Dagonee (Member # 5818) on :
quote:Also, if the defendant company in this case had won, then what would prevent me from making any other type of derivative work from a studio's original film and re-selling it as my own as long as I purchased a copy of the original first?
I'm assuming they claimed a fair use based on indecency/profanity. It's possible to draw this distinction so that allowing one doesn't allow the other, but there's no basis for it in existing law.
If SCOTUS overrules, it will be groundbreaking.
quote:And if it was OK, as long as I purchased an original, couldn't I just as easily purchase discount or 2nd-hand originals and do the same thing?
That would have no effect on the legality. There's a doctrine that says purchasing or otherwise legally obtaining any legally made copy (which a second hand original is) provides the same rights as purchasing from the original manufacturer.
Posted by KarlEd (Member # 571) on :
Right. My second question was basically rhetorical.
My point was that there are ways of obtaining legal copies with whatever rights they imply without actually benefitting the original copyright holder. I mean, OSC doesn't get a penny from any books with his name that are purchased at used book stores.
Posted by Jon Boy (Member # 4284) on :
He doesn't get a penny from their resale, that is.
Posted by BaoQingTian (Member # 8775) on :
Karl- If the creativity were the central issue, why do they allow TV & cable stations to cut & edit, when they are not even directly in control?
Posted by KarlEd (Member # 571) on :
Probably because that is a specialized case where even if there aren't hard rules for altering content, there are at least strong de facto practices, and I'd be very surprised if the rights given a TV station are of the "free to change as you see fit" variety. Additionally, there is a distinct economic benefit for the original holder of the copyright and a legally binding document to govern it.
I do not see the logic in arguing that because a copyright holder is willing to allow one licensed party to make changes in a relatively controlled way they have no right to expect unlicensed parties to refrain from marketing altered versions of their property.
If OSC allows a "Reader's Digest" version of Ender's Game to be published, does that give me the right to create and distribute my own version? Or if he allows an edited version for audiobook, does that give me the right to create my own audio version and sell it? (Or even trade it for copies of the original audiobook?)
Also, the issue may not be "creativity" per se, but creative control. I.E. it may not be so much a fear of changing the pristine original as in closely guarding the rights to make changes to the original, especially since any ensuing works will still bear the name of the original creator.
Posted by fugu13 (Member # 2859) on :
TV stations pay for the right to alter movies for their needs, and there may be vetting requirements or somesuch.
Its always possible for a person to license their work for the creation of derivatives, but hardly ever required. If it were fair use for one person, though, it would be fair use for everyone (in a sufficiently similar situation making sufficiently similar changes, for some legally determined value of similarly).
Posted by BaoQingTian (Member # 8775) on :
I'm sure there are guidelines for the TV stations, which is why I mentioned that they may not directly be in control. I'm not suggesting because they allow it in one situation that it should be ok across the board.
However, it makes me wonder why the studios don't work with these companies, give them guidelines, and ask for a small percentage of sales (say 10-15%). That way they get their artistic say, more profit (the original DVD plus the editing commission), and more market. Seems like there's a potential for win-win here. Of course, they may have offered all this and the small companies refused to play ball, but somehow I doubt that, with these movie & music associations track records.
Posted by KarlEd (Member # 571) on :
Well, I strongly suspect that in this particular case the market is too small for the studios to care. And quite frankly, that's their right. You can't walk into McDonald's and demand they start providing you with veggie burgers. Actually, you can, but unless the market demand for McVeggie-Macs is enough for the company to actually make money on them, they are pretty much justified in ignoring you. I strongly suspect the market for watered down films is much smaller than all the notoriety this case is getting would indicate.
Additionally, studios simply may not want to provide Bowdlerized versions of their product for general sale. Why should they have to?
Posted by Dagonee (Member # 5818) on :
quote:Additionally, studios simply may not want to provide Bowdlerized versions of their product for general sale. Why should they have to?
Why should songwriters have to provide a compulsory license for covers? Because we consider the use socially beneficial enough to carve out that exception from the copyright holder's monopoly.
The two situations are different, of course, but it's an example of the wishes of the holder not being as important as another policy consideration.
Posted by TheHumanTarget (Member # 7129) on :
quote: Why should songwriters have to provide a compulsory license for covers?
Songwriters are required to allow other people to cover their songs?
Posted by Dagonee (Member # 5818) on :
Dags, it's early and I haven't slept much, and while your link looks very informational, I just can't read it right now. Would you mind just giving me the gist of it?
Posted by KarlEd (Member # 571) on :
If you have time, I'll second that. The link just raises more questions for me. What's a "phonorecord" as opposed to a "sound recording"? What exactly are the specific circumstances, and what policy consideration is being held as more important in this case.
I'll take it on faith that you have some sort of point here, but I have no idea what it is and thus cannot relate it to the issue at hand. Posted by TheHumanTarget (Member # 7129) on :
I started reading it and was startled to find myself staring at the bookshelf having lost 10 minutes...
Posted by Shmuel (Member # 7586) on :
The notes on that page may be helpful... I Am Not A Lawyer, but here's my rough'n'dirty translation of the main bit.
quote:When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner,
When anybody has legally made and sold a (nondramatic) musical recording in the United States...
quote: any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.
...any other person can get a license to make their own recordings of the work, by following the rules in this section.
quote:A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.
In order to get such a license, the new recording must be made primarily for sale to private citizens.
quote:A person may not obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless: (i) such sound recording was fixed lawfully; and (ii) the making of the phonorecords was authorized by the owner of copyright in the sound recording or, if the sound recording was fixed before February 15, 1972, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright in the musical work or pursuant to a valid compulsory license for use of such work in a sound recording.
Furthermore, one can get such a license only if the original recording was made legally itself.
quote:(2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work,
This form of license gives you the ability to change the style, interpretation, tempo, and so on, but you can't warp the song beyond recognition.
quote:and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.
Also, your license to make your own recording of the work does not give your work the full set of protections given to derivative works, unless the person who made the original recordings grants those to you. (Which is to say, I think, that if somebody covers your cover, they pay royalties to original artist, but not to you.)
From there it gets into the details of getting such a license and paying royalties and so on.
Edited to note that "phonorecords" covers all physical sound recordings, not just those on vinyl. From section 101:
quote:“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
Posted by Dagonee (Member # 5818) on :
quote:'ll take it on faith that you have some sort of point here, but I have no idea what it is and thus cannot relate it to the issue at hand.
The point is unrelated to the details of this program. Originally, I was merely pointing out that the government compels copyright holders of a particular kind of work to allow others to license that work in a particular way, regardless of the wants of the holder.
So it doesn't answer the question "Why should they have to?" but it does point out that copyright law, as it exists now, does compel people to provide a particular type of use of a particular type of work. The reason is grounded in public policy to allow beneficial use of copyrighted work that would not occur if left solely to the market.
Posted by dkw (Member # 3264) on :
quote: but the arrangement shall not change the basic melody or fundamental character of the work,
You can't change the melody, but it doesn't say anything specifically about lyrics. Does anyone know if there's been a case where someone covered a song but changed the lyrics to omit profanity? Is that legal under this provision?
Posted by Dagonee (Member # 5818) on :
No idea. We covered this in less than a single lecture, so all I know is what's in the statute and some underlying policy justifications.
Posted by KarlEd (Member # 571) on :
Can you elucidate the underlying policy issues specifically? (I mean more specifically than "beneficial use of copyrighted work . . .")
I'm curious to know what the reasoning is regarding song recordings so I can see if/how it applies to film.
Something I don't understand from the linked statute is what the restrictions are. I'm pretty sure I can't just go out and make a recording of the newest pop song and sell copies to everyone. (Or can I?)
Posted by Shmuel (Member # 7586) on :
Karl: yes, you can just go out and make a recording of your own performance of the newest pop song and sell copies to everyone, provided that you file all the necessary paperwork and give the writer a large cut of the royalties. There have been several cases of a cover of a song coming out shortly after the original version and selling better.
Posted by Dagonee (Member # 5818) on :
quote:Something I don't understand from the linked statute is what the restrictions are. I'm pretty sure I can't just go out and make a recording of the newest pop song and sell copies to everyone. (Or can I?)
The license becomes available only after a phonorecord has been distributed to the public in the United States with the authority of the copyright owner (§115(a)(1));
The license is only available to someone whose primary intent is to distribute phonorecords to the public for private use (§115(a)(1));
A licensee cannot duplicate a sound recording embodying the musical work without the authorization of the copyright owner of the sound recording (§115(a)(1));
A musical work may be rearranged only "to the extent necessary to conform it to the style or manner of the interpretation of the performance involved," without "chang[ing] the basic melody or fundamental character of the work," (§115(a)(2));
A licensee must still serve a Notice of Intention to obtain a compulsory license on the copyright owner or, in the case where the public records of the Copyright Office do not identify the copyright owner and include an address, the licensee must file the Notice of Intention with the Copyright Office (§115(b)(1));
A licensee must serve the notice on the copyright owner "before or within thirty days after making, and before distributing any phonorecords of the work." Otherwise, the licensee loses the opportunity to make and distribute phonorecords pursuant to the compulsory license (§115(b)(1));
A copyright owner is entitled to receive copyright royalty fees only on those phonorecords made (3) and distributed (4) after the copyright owner is identified in the registration or other public records of the Copyright Office (§115(c)(1)); (5)
The rate payable for each phonorecord made and distributed is adjusted by an independent body which, prior to 1993, was the Copyright Royalty Tribunal. (6)
A compulsory license may be terminated for failure to pay monthly royalties if a user fails to make payment within 30 days of the receipt of a written notice from the copyright owner advising the user of the default (§115(c)(6)).
quote:Can you elucidate the underlying policy issues specifically?
The constitutional justification for copyright is purely economic - provide incentive for people to produce works that will benefit the public by giving the producer a temporary monopoly to exploit those works.
Note that the underlying goal is to have works available to the public.
Certain uses of copyrighted works are so beneficial that they override the monopoly. Some of these uses are called "fair use." It's why you can record a TV program for later viewing and why the educators can copy works in ways that would land us in jail.
There are other compulsory uses (uses the copyright holder can't stop), some compensated, some not compensated. For example, certain stores and public places of business can play music over certain types of equipment, something normally banned as a public performance. The copyright holder of the composition (score and lyrics) gets compensated; the holder of the actual recording's copyright does not. (PLEASE, to anyone reading this, there are lots of restrictions. Don't play a record in public based on this and think you're safe from copyright infringement liability.)
If I had to sum up the policy argument for such licenses, it would be "The market cannot efficiently link up copyright holders and people who desire to make this kind of public use of these kinds of works, because the potential gains to the copyright holder do not justify the expense they would incur in handling thousands of minor transactions. We consider such uses to be beneficial because ambiance is one of the good uses of music and the value of the copyright in such works will not be diminished by allowing such use."
A similar sentence (which I'm not advocating at this point - I'm very much undecided on this issue) about Bowdlerizing could be, "The market cannot efficiently link up copyright holders and people who desire to view movies w/out profanity, because the potential gains to the copyright holder do not justify the expense they would incur in handling thousands of minor transactions. We consider such uses to be beneficial because allowing people who wish to avoid indecency/profanity who wish to do so is a desirable public policy goal and the value of the copyright in such works will not be diminished by allowing such use."
BTW, where does the term "Bowdlerizing" come from?
Posted by kmbboots (Member # 8576) on :
oooooo...I used to know this! Wasn't he some guy that "edited" Shakespeare? In 1800 or so?
Posted by Shmuel (Member # 7586) on :
quote:BTW, where does the term "Bowdlerizing" come from?
Thomas Bowdler, who published the popular Family Shakespeare, which removed all passages considered unsuitable for family reading. (He also did the same for the Bible, among other works.)
Posted by Dagonee (Member # 5818) on :
Thanks, you two.
Posted by KarlEd (Member # 571) on :
quote:A similar sentence (which I'm not advocating at this point - I'm very much undecided on this issue) about Bowdlerizing could be, "The market cannot efficiently link up copyright holders and people who desire to view movies w/out profanity, because the potential gains to the copyright holder do not justify the expense they would incur in handling thousands of minor transactions. We consider such uses to be beneficial because allowing people who wish to avoid indecency/profanity who wish to do so is a desirable public policy goal and the value of the copyright in such works will not be diminished by allowing such use."
But since the Bowdlerizers lost the case, is it safe to assume that at least one court feels the reasoning upheld regarding music does not apply in this case? From what you wrote above, it seems at least possible that a higher court could reason differently (not that they will, but that they could).
I know you said you were undecided. What points on the studio's side makes you hesitant to side with the defendants? (or vice versa).
Posted by Dagonee (Member # 5818) on :
quote:But since the Bowdlerizers lost the case, is it safe to assume that at least one court feels the reasoning upheld regarding music does not apply in this case?
This wouldn't be a judicial decision, but a legislative one. The entire sentence is a balancing of competing policy concerns, one best suited to lawmakers.
Section 115 and the permission to play music in some places of business are laws written by Congress, and the policy justifications I composed for them justify the law. Neither is a legal argument compelling that result.
quote:From what you wrote above, it seems at least possible that a higher court could reason differently (not that they will, but that they could).
I don't think the court could come to that conclusion. The only mechanism I foresee would be if the court held this to be fair use, which is possible because fair use is incredibly ill-defined. But I don't consider it likely.
quote:I know you said you were undecided.
I'm not undecided on the outcome of the case. Under present law, it seems pretty clear to me.
I'm undecided as to whether people who pay for a copy of a movie should have the right to alter and resell the movie to remove indecency/profanity. But if we decide they should have that right, it would be a congressional judgment.
The points on the defendant's side from a policy standpoint:
1.) No loss of profit to the studio. 2.) The editing of movies to remove profanity is the type of change that fulfills an existing policy goal of the U.S. government. 3.) It tends to increase use of the work, not decrease it, in a way that wouldn't happen without the compulsory license.
In favor of the movie studios is a general default position against forcing people to make their property available to others on the government's terms.
Posted by KarlEd (Member # 571) on :
Thanks for that Dag. That clears up a lot for me.
Posted by fugu13 (Member # 2859) on :
One of the best things about fair use is how ill defined it is. Makes it more fun .
Posted by Dagonee (Member # 5818) on :
Certainly good for us lawyers.
There's dicta that a certain amount of fair use is constitutionally required, but the Court hasn't to my knowledge used this. All the fair use it's created has been what might be termed "statutory common law," that is, common-law-like judicial determinations based on the four statutorily defined fair use factors.
Posted by fugu13 (Member # 2859) on :
I wonder what a constitutional fair-use capability would look like. After all, the constitution doesn't even mention the notion, only saying the Congress gets to set copyrights for a limited time. I wouldn't mind if the fair-use statute were enhanced somewhat, to better lay out some principles for determining minimal fair-use rights.
Posted by Dagonee (Member # 5818) on :
The easy one is free speech - you can't stop people from quoting a book based on copyright if doing so infringes on free speech.
The others relate to the constitutional purpose to "promote the Progress of Science and useful Arts." I doubt it will ever come to that, because the fair use factors are so flexible.
Posted by fugu13 (Member # 2859) on :
*nods*
Yeah, I nearly mentioned that obviously any restriction violating other rights mentioned in the constitution would be prohibited.
I suppose if someone could demonstrate a given part of copyright had an extraordinarily detrimental effect on the 'Progress of Science and the useful Arts' one might have a case, but the courts are leary of making such determinations (perhaps too leary, at times), and certainly have had plenty of chances to do so recently that they have not taken up.
Posted by Dagonee (Member # 5818) on :
Although I suspect anyone who would be interested has already done so, it's worth checking out the Slashdot articles on the decision. Good way to see the gamut of intellectual property libertarianism.
Posted by fugu13 (Member # 2859) on :
*snort*
You forgot to give the standard slashdot warning: click no links unless you are familiar with the site it goes to (or have already been exposed to the horrors that await those clicking unknown links) . Actually, all that's died down a lot recently.
Slashdot certainly does have a range of opinions. A few of them are even informed.
Posted by SenojRetep (Member # 8614) on :
I have a couple more hypotheticals, or middle cases, that I was wondering if people could express opinions on.
On page 1 I asked if it would be alright (legalling and/or morally) for someone to provide scripted edit points allowing an individual to edit movies at home.
What about someone who, for a fee, came into the home and did the editing themselves? I buy the DVD, I want to watch a sanitized version, but I don't want to go to the effort/don't have the know how to edit it myself.
And if that's alright (legally/morally), what if instead of them coming to my home, I sent my DVD to them for editing?
I guess I'm wondering if there's a difference in offering a DVD editing service and marketing edited DVDs.
Posted by KarlEd (Member # 571) on :
Senoj, See the exchange between Sergeant and Shmuel on the previous page. ClearPlay is a company that provides a service somewhat like you describe. Rather than actually doctoring and re-copying the DVD, though, you purchase from them a specialized DVD player and download (??) masks from the company for the movies you want to watch. The DVD player follows the mask, editing out the "bad parts". Apparently this particular procedure has been upheld by Congress as legal.
The difference, though, is that the process does not create an edited copy of the original, but edits on the fly. You have to have the original at all times to watch the movie. There is no form of distribution of a "derivative work".
[ July 12, 2006, 09:29 AM: Message edited by: KarlEd ]
Posted by KarlEd (Member # 571) on :
To answer your specifics, though, my opinion is that you can do what you want with your own private copy in your own home for your own personal use. I don't see any problem with someone providing instructions for editing your own personal copy.
I think coming into someone's home and doing the editing is arguably creating a derivative work (and for profit, if you charge a fee), which I believe is illegal, but Dag will correct me if I'm wrong, I'm sure.
Doing the editing elsewhere and sending it back to me is the same
Posted by SenojRetep (Member # 8614) on :
quote:Originally posted by KarlEd: The difference, though, is that the process does not create an edited copy of the original, but edits on the fly. You have to have the original at all times to watch the movie. There is no form of distribution of a "derivative work".
Hmm, just because the "copy" created by the ClearPlay process doesn't exist on physical media, but is continuously rendered and then disposed of, does that make it less a copy? I mean, is the derivative work what exists when you view the movie, or is the derivative work what exists on the specific physical medium. Is art an object or an experience?
Anyway, I was thinking of a hypothetical situation where you licensed a movie for public viewing, but showed it using the ClearPlay system. Would that be considered distribution of a derivative work?
Posted by Jon Boy (Member # 4284) on :
quote:Originally posted by SenojRetep:
quote:Originally posted by KarlEd: The difference, though, is that the process does not create an edited copy of the original, but edits on the fly. You have to have the original at all times to watch the movie. There is no form of distribution of a "derivative work".
Hmm, just because the "copy" created by the ClearPlay process doesn't exist on physical media, but is continuously rendered and then disposed of, does that make it less a copy?
There's not even anything to dispose of. As I understand it, ClearPlay is essentially a preprogrammed way to mute, black out, or fast-forward. You could do all this yourself with your remote controls if you knew when to and if you had good enough timing.
Posted by SenojRetep (Member # 8614) on :
quote:Originally posted by Jon Boy:
quote:Hmm, just because the "copy" created by the ClearPlay process doesn't exist on physical media, but is continuously rendered and then disposed of, does that make it less a copy?
There's not even anything to dispose of. As I understand it, ClearPlay is essentially a preprogrammed way to mute, black out, or fast-forward. You could do all this yourself with your remote controls if you knew when to and if you had good enough timing.
Right, but the information exists when it is rendered to the screen, in some internal buffer, which is subsequently flushed as new bits come in. So it does create a derived physical product, just one that is continuously destroyed.
My thoughts, however, ran a bit more toward the esoteric question of what does it mean to make a copy. Is each viewing of a piece of art a copy, because you experience the art anew? Or does making a copy require storage on a physical medium (other than the memory nodes of your brain)? Hence my (or, rather, the) question of whether art is an object or an experience.
Posted by KarlEd (Member # 571) on :
Which, you'll admit, is a question way beyond the scope of copyright law, right?
Posted by fugu13 (Member # 2859) on :
Ephemeral copies are copies, but there's nothing wrong with producing an ephemeral copy like this yourself and using it for personal use.
Also, the rules are slightly different as regards ephemeral copies (that is, many ephemeral copies are fair use where a more permanent one wouldn't be).
Copies have to be physical in some sense. Electrical impulses in computer circuitry count. Actually, the display of the movie would likely not constitute an ephemeral copy, as only a tiny part of it would be 'copied' at any given time. However, having a movie in RAM does count. I think there's a certain element of 'extractability' in the determination of being a copy, but I could be wrong.
![[Blushing]](graemlins/blushing.gif)
![[Wink]](wink.gif)
. They could do them both at once, though.