Copyright and CleanFlix

Nathan and Matt are 100% correct about the badness of the recent decision [actually, I think this is the wrong way of putting it; see update] holding that CleanFlix–a company that sells versions of movies cleansed of all the stuff they warn you about when a movie is starting up at HBO–is engaged in illegal behavior. As Matt says:

Artists and so forth who think their interests are being served by pushing a strong-IP doctrine on this front are essentially dupes. The people who control the existing distribution channels for film have a very serious interest in using the new-style super-strong IP rules to insulate themselves from the winds of technological change. So, in essence, they’re pushing forward on all fronts, stomping on various totally non-harmful cases of putative infringement and attempting to radically curtail people’s ability to do what they want to do with content they’ve purchased.

Matt is also right that it’s important not to be diverted by distaste for the CleanFlix enterprise. First of all, what the company is doing is not terribly unusual; various forms of content that the mass audience might find objectionable are systematically removed to show movies on broadcast TV and airlines(*), for example, and the former further bowlderizes films to fit time slots and include commercials. Being a snooty civil libertarian aesthete with no kids, I find all of this silly, and in fact I pretty much never watch movies on broadcast TV or airlines, do not think that random bad words or stray nipples on TV present a massive cultural crisis, think that film would probably benefit from more nudity and eroticism (although probably could do with less movies about blowing stuff up) etc. etc. But the puritanism of CleanFlix is also essentially harmless–as opponents of puritan busybodyism often note, nobody’s forcing you to watch their products–and of course ex post facto changes are infinitely preferable (for both artists and audiences) to preventing the work from being done in the first place. Instinctive hostility to middlebrow “family values” groups shouldn’t compel one to fall into the trap of advocating terrible copyrights laws. It’s also worth reiterating that where Congress’ copyright powers are concerned, consequentialist analysis is not merely useful but required; the Constitution specifically does not hold that copyrights are a sacrosanct abstract right, but are designed to advance the public interest, which decisions like this manifestly fail to do.

*American airlines, I should say. Another reason to cheer for France against Team WATB today is that Air France gives you a menu of entirely unedited movies, some of which–violating what seem to be the formal requirements of the American airline industry–are actually good. A seven hour flight goes a lot more quickly if you can screen Crimes and Misdemeanors II Match Point and Brokeback Mountain, both of which if anything I underrated. Alas, on the way back was King Kong, in which virtually every scene felt painfully distended despite the pretty much the ideal context for a long movie. (Another complexity of art and commerce: although Jackson’s leisurely pace and love of technical gadgetry worked in the LOTR movies–my understanding is that its big fans actually prefer the longer director’s cuts–this one would have actually benefited from a philistine cigar-chomping boss telling Jackson that while it might be really cool to create these lengthy scenes with computerized dinosaurs watching it is really boring.) Much better was the new Chabrol/Huppert film–I’m guessing they’re not showing this on United–the kind of minor but tight and entertaining and well-acted movie that studios should theoretically be able to churn out by the dozen but for some reason rarely do.

UPDATE: Some good counterpoints in comments. I should clarify that by “bad decision” I don’t mean that it was incorrect as an application of copyright law; indeed, the way I framed it is wrong, since if anything is wrong it’s the law rather than its application. With respect to that, I’m still skeptical that existing copyright law is, on balance, in the public interest, but after reading the decision more carefully I will concede that this is a much tougher case than my cavalier opening made it sound; given that the company in question was burning DVDs without permission, there is at least a plausible case that protecting it is in the public interest. On the other hand, I think the only question is whether the policy will lead to the production of more art, and I don’t think there’s much evidence that it will.