Snipping Private Ryan: The Clean Flicks Fight to Sanitize Movies

I. INTRODUCTION Until the mass-market introduction of digital recording technology, consumers were unable to make near-perfect duplications or seamless alterations of video and audio recordings of artists. That was then; this is now. Today computers allow consumers to burn their own CDs and DVDs. They can create their own music compilations. Usenet groups post copies of newly released movies that members can download ... sometimes, even before the movie's first theatrical release! Peer-to-peer file sharing services, like the now defunct Napster and its replacements (KaZaA, Grokster, and others), allow one consumer to browse the hard drives of thousands of other consumers in distant locations to find music, movies, and other types of electronic documents and download them to their own computers. This consumer behavior is nothing new. When tape recorders were introduced, consumers recorded their vinyl albums for use in their car tape decks and Walkmans.[R] They made party tapes for their friends. When videotape recorders were introduced, consumers recorded TV shows and movies for their friends and for themselves. With premium cable and pay-per-view programs, commercials were eliminated, allowing for seamless videotaping of commercial-free programming. However, with digital technology, these recordings are virtually indistinguishable from the originals. Analog reproductions (audiotape, videotape, etc.) degrade with each generation. So, if a movie is taped and given to someone who makes a copy from the tape and so on, the copy will eventually become unwatchable. With digital reproduction, the degradation is almost imperceptible from generation to generation, greatly postponing the unwatchable stage. Digital technology scares the entertainment industry, and rightly so. Not only are they losing control over the distribution of their products, they are also losing control over the actual product. For example, a backlash against the character Jar-Jar Binks in STAR WARS[R] THE PHANTOM MENACE (Lucasfilm, 2001) resulted in an underground version of the movie with Jar-Jar removed from the film. (1) Bootleg copies of movies that have not even opened in theaters yet are showing up on the sidewalks of New York, China, and Russia. (2) The entertainment industry is grappling with how to reclaim control over its products and protect its intellectual property against future infringements. It is against this backdrop that we consider the Clean Flicks case. Should a third party be allowed to edit a movie to remove content the third party finds objectionable? What if the third party is a cooperative of consumers who have similar concerns about objectionable content? What if the co-operative uses their library of "sanitized" movies to attract new members? What if the members want to own their own sanitized version of the movie? What if the people who created the movie, the directors, writers, cinematographers, and other artists are not the copyright owners? Do they have any rights regarding the alteration and distribution of their creations, and if so, what are those rights? These are just some of the issues that the court will wrestle with in the Clean Flicks case. Clean Flicks puts forth two alternative fair use defenses for its actions: (1) the company's actions create no loss of revenue because there is a one-to-one ratio between the originals and sanitized copies, or (2) they are a co-op film club that should be treated like a "lending library" because they lack a commercial motive. While both are novel arguments, the court should reject them as violative of the copyright law and not a valid exercise of the fair use doctrine. The directors named in the suit have made a trademark infringement and trademark dilution counterclaim under the Lanham Act. (3) They argue that by editing a director's movie without authorization, Clean Flicks is fraudulently implying a link between the director and the edited movie. …