Studios take action against "family friendly" editing facilities (1 Viewer)

[Damin J Toell]

These are questions that a judge has never answered, because no one has ever asked.

That's a function of the structure of Fair Use as a balancing test with few (if any) bright line rules. That is not to, say, however, that Fair Use precedent isn't well-developed; it is (in the Circuits, at least, as the Supreme Court takes barely any Fair Use cases). Perhaps no one has ever asked those questions insofar as Clean Flicks and movie studios, but similar questions have been asked about similar parties. My statements concerning my "definitive" opinion on the illegality of Clean Flicks' actions come from my opinion on what a competent Fair Use analysis would look like when applied to what they're doing. I think it a mistake to think that because the question isn't definitively stated in any previous statute or case, there is no answer. The answer is to be found, or at least attempted to be found, by engaging in the requisite analysis yourself in light of binding precedent. I believe that the answer isn't actually very difficult to find when applying the analysis to Clean Flicks. There is a 4-part balancing test in 17 USC § 107 (which requires the consideration of all 4 parts, but apparently does not limit consideration to them), and courts have used the 4 categories as generally exhaustive standards. The analysis would, I think, look like this:

-The purpose and character of the use: The use is for commercial gain while being only mildly transformative. This weighs in favor of the studios.
-The nature of the work: Films are highly creative works that represent the core of protected works. This weighs in favor of the studios.
-The amount of the work used: For any given film, the entire film is subject to modification by Clean Flicks. This weighs in favor of the studios.
-The effect upon the potential market: Some studios already have entered into licensing agreements with other parties to create such edited works; this is an actual current harm, which is worse than a potential harm. It also harms the potential general marketability of edited versions coming from the studio or a licensee. This likelihood is not all that small, given Dove's licensing of such rights in the past, and the market of edited versions in sales to entities such as airlines. This weighs in favor of the studios.

Given that I believe all of the factors weigh in favor of the studios, I believe it wholly unlikely Fair Use would succeed as a defense. This is based on statute, case law, and personal opinion. There is, I believe, an answer out there. Is it 100% definitive such that a court can't possibly find something different? Nope. But such certaintly isn't required. I believe it is enough to say, as I have been all along, that it's quite unlikely for Clean Flicks to win.

DJ

(edited to fix various sloppy errors)

 

[Anders Englund]

§ 1125. False designations of origin and false descriptions forbidden

(a) Civil action.
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
...
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

No offense, but I can't read that, even in swedish. The short version? That the director(s) don't want their name on the modified product?

--Anders

 

[Glenn Overholt]

Ditto Anders, but that doesn't apply here, so I don't know why anyone would put that here. The videos are clearly labeled with their sticker that they have been cleaned up.

Glenn

 

[Jeff Kleist]

The DGA can sue because their memebers are being falsly represented as the authors of the work that's being rented out, when in fact it has been butchered.

Clean Flicks is violating the law, thye are not protected by fair use. They're screwed

 

[Glenn Overholt]

But a souped up Mustang is STILL a Mustang. Ford would say, we didn't sell that, even if they couldn't recognize parts of it. It isn't as if they are blending two different movies into one.

Glenn

 

[Thomas Newton]

Getting to such questions, of course, requires an assumption that the actions of Clean Flicks does indeed violate the derivative work right.

Fair Use is by definition not copyright infringement. Thus, despite the common, inaccurate claim that a defense of Fair Use is "I infringed but the infringement is allowed," a defense of Fair Use actually is "I am innocent." A successful Fair Use defense means that the activity was not infringing, and that the plaintiff had no right to keep others from engaging in it.

Whether the judge will buy a Fair Use defense in Clean Flicks' case in light of the MP3.com decision is another matter. Given the commercial nature of the use, if the trial gets into copyright issues, Clean Flicks will bear the burden of showing why the court should consider the activity to be non-infringing.

 

[Thomas Newton]

The DGA can sue because their memebers are being falsly represented as the authors of the work that's being rented out, when in fact it has been butchered.

So why don't the DGA sue whenever a Pan-and-Scan-only DVD comes out? Their names are on it, and it's been butchered.

 

[Peter Apruzzese]

So why don't the DGA sue whenever a Pan-and-Scan-only DVD comes out? Their names are on it, and it's been butchered.

Because (with a few exceptions) they are contractually obligated to deliver (or at least approve in writing) a pan-and-scan transfer of their film. Unless their contract on the film specified that there be no pan-and-scan version, they'd have no basis to sue. They didn't agree to have Clean Flicks edit their film, so they're entitled to sue.

 

[Damin J Toell]

So why don't the DGA sue whenever a Pan-and-Scan-only DVD comes out? Their names are on it, and it's been butchered.

Because, as Peter noted, they have contractually obliged themselves to allow their names on those versions. No such contractual relationship exists with Clean Flicks.

DJ

 

[Damin J Toell]

According to the documents filed with the court, the film altering entities are renting, selling, or distributing versions of movies, which neither the Guild's members nor the studios authorized, and which are altered versions of members' works. In the counterclaim, the DGA states that these entities are in violation of the Lanham Act, which is a federal statute that prohibits false advertising, trademark infringement, and unfair competition, and has been applied to protect an artist's right not to be associated with an unauthorized, edited version of his or her work.

-from www.dga.org.
So, yes, it does apply here. The statute I posted is part of the Lanham Act.
DJ

 

[Matt Perkins]

. In order to reach a defense of Fair Use in a trial, it must already be found that the action in question constitutes an infringment.

Oh, Damin. And you were doing so well.
This is a hotly-argued nitpick and (once again) you assert your opinion without acknowledging that there is room for debate. Yes, it's commonly thought that fair use is just a defense, and as a mere "defense" cannot be considered a right.
Many others would argue that the definition of fair use (" ... is not an infringement of copyright") suggests otherwise. A state might have a statutory rape law that incorporates an "affirmative defense" of ignorance of age. In such a case, one could invoke this as a defense if prosecuted for such conduct. If the guy is credible, the judge would let him go.
That doesn't mean he didn't fuck a minor.
Copyright is different. It doesn't say, "fair use is an excused infringement," it says "fair use is not an infringement." Very, very big difference, especially when users' rights are being considered (as, I suggest on this topic, they should be).
You're almost right (read: wrong) about when the fair use argument comes into play, also: it is invoked upon acknowledgement that one of the "exclusive" rights has been violated, NOT upon acknowledgement of "infringement." Both parties can agree that copying happened, but one party calls it infringement and the other calls it fair use.
Both parties can NOT agree that infringement has happened, because then, the case is over. No controversy.

 

[Damin J Toell]

§ 501. Infringement of copyright
(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121...is an infringer of the copyright or right of the author....

-17 USC § 501.
An "infringment" is a "violation of an exclusive right". They're the same thing. If you have proven that, in your words, "one of the "exclusive" rights has been violated," you have indeed proven infringment. You're attempting to make a semantic distinction where none exists.
DJ

 

[Matt Perkins]

You're attempting to make a semantic distinction where none exists.

If fair use were only a defense, it could be repealed.

In fact, fair use is something much more ... something so very fundamental to copyright that judges in the 19th/20th centuries had to pretend it was there, just to keep the whole system from exploding on itself. It's something damn close to (blasphemy!) a right.

For copyright to promote progress, and for copyright to support the First Amendment, judges realized that copyright needed a mechanism of balancing proprietary interests with non-competing and non-interfering freedoms. This became the "fair abridgment doctrine," later codified into the 1976 Act in 107 ("fair use").

You can repeal the law, but you cannot repeal the principle which the law implemented. That principle is way, way beyond a mere legal strategy to evade liability.

Sure, it can be used as a defense. I happen to think it's quite a bit more than that.

 

[Damin J Toell]

You can repeal the law, but you cannot repeal the principle which the law implemented.

True enough, but if the defense is stricken as a matter of law, the underlying principle lacks much practical value in a court.

But, anyway, none of that has anything (or, at least, quite little; I was positing that Fair Use is a defense as practical matter, not that the defense doesn't conceivably eminate from an underlying right) to do with what either of us said in the prior discussion to which you've made this reply (and it certainly has no bearing upon the language of mine which you quoted). I'll take that blatant deflection as a concession.

DJ

 

[Matt Perkins]

He he! Okay, you take it that way.
Oh, all right, let me answer your point:

Quote:

Yes.
Jeez, I should be charging you for this education ...

 

[Thomas Newton]

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

What part of "the fair use of a copyrighted work ... is not an infringement of copyright" (the actual wording of United States copyright law) is hard to understand?

 

[Thomas Newton]

So, then, for the Fair Use defense to arise in a trial, one of the § 106 exclusive rights must be "violated"? And this, apparently, is different than an "infringment"? OK, great. So what is an infringment?

No. The plaintiff must claim that one of the § 106 grants has been violated. Just because plaintiffs claim things doesn't always make them true. The fact that plaintiffs' claims are not always true is why we go through with trials, rather than punishing anyone who is accused without regards to whether they did anything wrong.

The court decides whether the plaintiff's claim that the activity is infringing is true, or whether the defendant's claim that the activity is non-infringing (e.g., due to First Sale or Fair Use) is true. As Matt pointed out, if the plaintiff and defendant agreed on whether the activity was infringing, the case would be moot (except for determination of penalties in the case of infringement).

 

[Damin J Toell]

Hey, what is that "106 through 121" nonsense? Oh wait, that's the part that contains 107 -- fair use! I guess that would mean that "infringement" and "violation of 106" are not the same thing.

Nope. It says "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121....." Any. Any single one. Violating a § 106 right falls under violating any exclusive right provided between §§ 106-121, does it not? Violating any right that is provided between those sections, including a § 106 right, is therefore an infrigment.

Sad to see how far an interesting discussion has fallen.

DJ

 

[Damin J Toell]

The court decides whether the plaintiff's claim that the activity is infringing is true, or whether the defendant's claim that the activity is non-infringing (e.g., due to First Sale or Fair Use) is true.

But, the activity must be found to be an infringment before a Fair Use defense can be considered at a trial. If the activity is not found to be an infringment prior to that stage of the trial (say, if the work isn't copyrightable), then the trial never reaches the stage at which a Fair Use defense could be raised. As a threshold matter (not conslusively, not permanently, not for forever), therefore, an activity must be found to be an infringment in order for the defense of Fair Use to arise. The threshold of infringment must be met before Fair Use to be considered; the activity must be found to be infringing as a threshold matter. Otherwise, in what logical context would the defense arise? A defendant doesn't run into court and scream "Fair Use!" at the start of the trial or at any point he thinks feels right. The consideration of Fair Use as a defense can only arise if the activity has been found as a threshold matter to be infringing. Otherwise, Fair Use has no logical bearing upon the trial.

DJ

 

[Thomas Newton]

If the activity is not found to be an infringment prior to that stage of the trial (say, if the work isn't copyrightable), then the trial never reaches the stage at which a Fair Use defense could be raised. As a threshold matter (not conslusively, not permanently, not for forever), therefore, an activity must be found to be an infringment in order for the defense of Fair Use to arise.

Fair Use is not infringement. So it is not logically possible for a finding of infringement to be a prerequisite to a successful assertion of Fair Use.

What you are calling "the activity is 'infringement' as a threshold matter" sounds more like a determination that a use could be an infringement, that the court has decided not to throw the plaintiff's still-unproven claim out of the window as a complete waste of time. This is a pruning technique, not a determination of guilt.

It's like a grand jury asking for evidence that there is a body. The presence of a body does not automatically mean that the suspect is the murderer (or even that the death resulted from foul play). It just helps to create a reason for indicting the suspect and going ahead with a trial. If there was no body and no evidence that anyone had died, the grand jury wouldn't give the go-ahead, there would never be a trial, and the suspect would never get to assert the defense that "I'm innocent of the murder of John Doe."