Copyright Law – blog.sullybeck.com

With the recent furor over the proposed SOPA and PIPA acts, I’m thinking about copyright law a lot. This happens at least once a year… I find copyright law interesting (in a sad and twisted sort of way).

Copyright law is, in my opinion, one of the least understood and most abused segments of our law system, and it is one that impacts every single one of us because ALL of us listen to, read, or watch copyrighted material. Copyright law is like street laws. The minute we leave our driveway, our every action is constrained by the markings on the road, signs and light posted at very short intervals, and all of the laws and rules apply.

Copyright law impacts us in a similar way. The difference is that, while the typical driver understands the rules of the road reasonably well, the consumers who use copyrighted material tend to have little understanding of what copyright is, and many big companies and organizations (such as Disney, the MPAA, and the RIAA) have played havoc with it over the years.

So, it’s time to write some of my thoughts about it.

When I go into a library and check out a book, or to a music store and buy a CD, what exactly am I getting?

Owning (or borrowing) copyrighted material is a LOT different than owning or borrowing a car. When you buy a car, you are free to do pretty much anything you want to it. You can modify it in any way you want (of course you may make it illegal to drive, but that’s beside the point). You can resell it any time you want and at any price someone is willing to pay. You can use it to make money, rent it out, or take it apart and sell the pieces. You own the car.

When you buy a book though, you do not own the story or content contained in the book. What you actually own is a license which allows you to access the content. The actual content is owned by the person who wrote the book, and as such, the are limitations on what you are allowed to do with them. Those limitations are covered by copyright law. Copyright spells out the rights you do or do not have with respect to the words in the book.

So the question is: what rights do you have? Here is where my thoughts diverge from what some of the laws say (and especially what some of the new proposed laws are trying to do).

It should be noted that when copyright law was first proposed, it only applied to books. After all, there was no way to record music, and movies were a couple hundred years away. So copyright law was based on a book model, and it worked for a couple hundred years, and it continues to work well for printed books. As other forms of media (such a records and tapes and video tapes) arrived, the model still worked, but a new wrinkle began to be introduced. It has never been practical to duplicate a printed book. Even with photocopies, nobody would ever suggest that a photocopied book was as desirable as the original, and certainly, few people would be willing to pay for such a copy. But with the advent of tapes, it became possible to make reasonable copies of both music and movies. As technology continue to progress, the ease of making copies increased, and their quality improved. With the introduction of the CD and DVD (and other forms of digital media), this came to a head, becase a copy of a CD or DVD (or any other digital media) is of exactly the same quality as the original. In addition, making a copy is very easy (despite various attempts to disable this ability), and once you have one copy, you have as many copies as you want.

So, I want to first talk about what was originally intended with copyright law (the model which worked well until easily reproducible media arrived), and discuss what (if any) changes to that model should be made in response to changes in technology.

THE PURPOSE OF COPYRIGHT

It is important too to recognize why copyright was (and still is) important. When the constitution was written, the purpose of copyright was defined as:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

In other words, by granting artists a period where they have exclusive control of their works, it would encourage artists to produce works. If their works were immediately seized from them, there would be little incentive to create a new work.

So, if an artist creates something, but then does not get to reap the benefits from it, the artist will soon become discouraged and move on to some other form of work. When an artist creates a work, he then should be free to enjoy two specific benefits.

First, the artist should be able to enjoy the benefit of ownership. In other words, nobody else should be able to duplicate that work, and pass it off as their own. The original artist should be the attributed owner of the work at all times.

Second, if the artist indends to sell the work, then that right should be protected (at least for some period of time) so that nobody else gets to sell their work without any financial benefit to the original artist.

Protecting these two rights of the artist guarantees that there will be people who are willing to produce art, and everyone benefits from that. This protection is one side of copyright law.

On the other hand, the person who buys a copyrighted item also has rights, and it is equally important that their rights be protected.

Copyright law then should be about protecting both the rights of the artist and the rights of the person who buys that material (or more accurately, buys a license to use that material).

Unfortunately, the people pushing copyright legislation at this point in time are big businesses who own lots of copyrighted material, and the legislation tends to favor them at the expense of those who purchase copyrighted materials.

ORIGINAL COPYRIGHT MODEL

Let’s look at the original copyright model. We’ll do this by looking at how books have worked for the past few hundred years. This defines, in my opinion, a nearly perfect balance protecting both parties. That balance has now been upset by some of the factors mentioned above, but we’ll use this model as a starting point.

Books were available in two ways. You could purchase the book at a bookstore, or you could borrow it (from a friend or a library). The following are key features of this model (i.e. these were things you could or could not do):

NON-EXPIRING: You could buy a license (i.e. a book) and use it for as long as you wanted. The license did not expire and could not be revoked.
RIGHT TO PROTECT THE LICENSE: You were allowed to take reasonable precautions to protect the license. You were allowed to store the book in a protected place to preserve it from the elements. If a page became torn, you could repair it. If a page became unreadable due to water damage, you could replace it (by copying the page from another copy of the book).
RIGHT TO ACCESS THE CONTENT: No limits were placed on the number of times you could access the content.
RIGHT TO TRANSFER THE LICENSE: You could sell the license (i.e. book), or loan it out without restriction.
RIGHT TO SINGLE USE ONLY: The license allowed only a single use at a time. You could not make a copy of the book to allow two people to read it at a single time. However, you were not limited as to where you could read the book. The single use was unrestricted as to who, where, or why that use was done.
NO RIGHT TO DUPLICATE: The license did not allow you to duplicate the book (except for the intent to protect the license) and sell or distribute copies for any purpose.
RIGHT TO REFERENCE THE WORK: You were allowed to reference the book. You could quote excerpts from it, and make derivative works (within reason).
NO RIGHT TO OWNERSHIP OF THE WORK: You could not claim ownership of the work.

Even though this model was developed specifically for books, it worked extremely well, and is easily extended to other forms of copyrighted material.

I would like to expand on each of the above rights and examine how these rights apply, or do not apply to various copyrighted material. Specifically, I want to examine how they continue to apply to books, how they apply to music and movies in current environment where the media is so easily duplicated.

I think that it is a worthwhile question to ask if a copyright holder actually has the right to withold these rights from a consumer. In theory at least, a copyright holder can withold any rights they want. They can produce a work and say: if you want to ‘buy’ this material, here are the rights that I am granting you. This is perfectly acceptable of course… but should such specialty licenses be covered by copyright law, or should they be some special contract? If the only purpose of copyright law were to protect the artist, then these arbitrary contracts could be considered copyrights… but since I regard copyright law as a means to protect the rights of the artist AND the consumer, I believe there are some rights that the artist cannot withold from the consumer and still receive the benefit of being protected by copyright law.

SOFTWARE COPYRIGHT

In addition to books, music, and movies, the one other type of copyrighted material is softare. For the most part, I do not want to discuss software copyright at this time, because it is truly a very different case.

First, it is not immediately clear whether software SHOULD be covered by copyright law.

In my opinion, the question of whether or not software should be protected by copyright law is probably not. I’m not saying that it shouldn’t be protected of course… but the rights that consumers should expect, and the protections that software writers need are so different from those of a writer and consumer of computer software that it is difficult to find commonalities between the two situations. However, in practice, copyright law IS used to protect software, and this is so entrenched in the software industry that it’s probably too much trouble to change.

Second, almost without exception, modern software is distributed with a copyright notice included (you usually see the statement ‘by opening this container, you agree to the terms of the copyright’ on the packaging), and the terms and restrictions are drastically different than those that we are familiar with that apply to books and music.

Copyright laws were created to protect ‘original works of authorship’ such as books, music, and other artistic and intellectual works. The problem is that there are fundamental differences between software and a poem.

I am a software writer by profession… and it is in no way related to creating a work of art. It is actually a work of engineering. Typing a program is much closer to the process of building a bridge than it is to writing a poem. It is about following rules of math and logic, applying engineering principles, making use of tools, and following accepted best-practices and conventions. Perhaps even more telling is the fact that in most cases, the program that is written is NOT what is distributed. Instead, the program is converted (compiled) to a machine language and that is what is what is actually distributed, so it’s very unclear to me that this computer generated thing should be protected by copyright law.

At the very least, the manner in which copyright laws apply to software, and the rights that belong to consumers are so different that I will not cover it here. That will be a discussion for another time.

NON-EXPIRING

From the very beginning of the sale of copyright materials, it has been accepted that the license you purchase was non-expiring. There was never a time at which a book you had purchased became illegal to read.

This doesn’t necessarily apply to borrowed material of course. When you borrow a book from the library, it is expected that there will be a due date and you will be required to return the material, and at that point, you no longer have a licese to that material.

But for material you purchase, the license has always been non-expiring.

More recently, with the advent of all of the digital technologies, two things have occurred that can potentially change this.

First, there have been attempts to make time-limited media. To date, all of these have been employed in a rental model (i.e. you borrow a movie from a store, but instead of having to return it, the media simply stops working after a set period of time).

Although I’m not a fan of the time-limited media concept, since it is based on the model of borrowing, rather than owning the license, I do not see it as being a threat to the non-expiring license.

A much more serious threat comes from digital rights management (DRM) schemes. DRM has been applied to to all forms of digital media as a way to control use of that media post-sale.

In it’s simplest form, DRM makes it a requirement that, in order to use a piece of media, you have to contact a DRM control site (which you have registered with in some fashion) before you can actually access the content. The content is encoded somehow, and the DRM management site gives you a temporary key to access the content. But you have to get a new key every time you want to access the content.

The immediate conclusion to this is that any media which is DRM protected is NOT non-expiring. What happens when the DRM control site goes down? What happens if it goes bankrupt? What happens if they decide to deprecate their old DRM scheme in favor of a new and improved one, but don’t wish to go through the trouble of transitiioning old media to the new scheme? What if the DRM site is sold and the new owner is not interested in supporting all the old customers? These, and any number of other perfectly reasonable scenarios may occur which will render the DRM-protected media unreadable. It would be equivalent to a situation where a book you had purchased would automatically vaporize when the publisher decided you no longer had a right to that book.

There are a number of other issues with DRM that I’ll cover later, but for this reason alone, I will not purchase ANY DRM-protected media. I will find an alternate way to get the media, or I will go without.

I do not believe that the non-expiring quality may be withheld from copyrighted material.

When I was young, I read The Hobbit and The Lord of the Rings for the first time (coincidentally, the Tolkien estate is one of the ‘bad guys’ in the copyright battle) and it changed forever the way I thought about books. It has influenced the books I’ve read. I’ve automatically compared books to the Lord of the Rings. I’ve been drawn to games (such as Dungeons and Dragons) because they contained dragons and elves and other creatures that played important roles in Tolkien books (whether they were invented by him or not).

The fact of the matter is that, although the actual books are undeniably the ownership of Tolkien (as to whether they are owned by his estate is a separate question I’ll address below), Tolkien DOESN’T own the ideas that they inspired in me. I have my own thoughts about hobbits and elves and the mines of Moria that do not belong to Tolkien. When any artist releases a work that inspires someone reading, hearing, or seeing that work, the work takes on a special meaning that is no longer the sole ownership of the artist. By releasing the work, the artist no longer has sole ownership of all aspects of that work. Indeed, the artist should not even want that. It is the act of someone else experiencing the work, and being inspired by it, that elevates the work from a throwaway piece to a masterpiece.

Although I accept there are certain things I cannot do with my copy of the books that have inspired me, I also believe that the artist has no right to try to exclude me from reading something that has formed an important part of my life.

Once a writer has shared his vision of a world with me, he does not have the right to kick me out… because it’s no longer HIS world… it’s OUR world. That’s the price and priviledge of being an artist. The greatest artists are those who’s works have become part of the lives of thousands or millions of people.

RIGHT TO PROTECT THE LICENSE

Closely related to the right to a non-expiring license is the right to protect the license.

When books were the primary source of copyrighted materials, this right was not very evident. There really is no good way to protect a book and read it at the same time. However, as other forms of media arose, it became more of an issue.

When records came out, you could store the record in a safe place and periodically make a tape-recording of it and listen to the tape. Likewise, if you owned a casette tape, you could make a copy of it an listen to the copy.

With the advent of digital media, we now have the ability to truly protect a license while preserving all the information perfectly.

The industry has responded by coming up with a host of copy-protection methods (none of which have worked reliably). Their argument of course is that if you can copy the material, you can pirate the material.

That argument is true of course, and I’ll cover the entire piracy issue below, but for those of us who do NOT pirate media, is protecting the license by making a digital copy allowed?

It is my belief that it is. Since the license I own to every book, CD, or movie that I own is non-expiring, I do have the right to ensure that I can access that content for the rest of my life. I cannot use that ability to circumvent restrictions on the use of copyright material, but that is a separate issue.

My entire movie and music collection is now stored on my computer. I still have the license to access the content (i.e. the actual CD or DVD that I purchased), but over time, those will wear out, so I won’t be able to access the content directly from them. However, I will be able to access the copies I have made.

This is not a right that should be witheld from a consumer of copyrighted material.

RIGHT TO ACCESS THE CONTENT

In the early days of copyright, it’s easy to see what was meant by accessing the content. By owning a book, you were allowed to read it wherever and whenever you wanted. You could read it any number of times, or share the media so others could read it.

At it’s most basic, that right hasn’t changed. When you have a CD, you can play it over and over. The question then becomes how much right you have to access that content in slightly different ways. The ultimate question is whether or not you are allowed to make a copy of the CD that can be played on you computer or mobile devices.

To begin with, it’s always been allowed that there were reasons you would access the content indirectly. Audiophiles would preserve their vinyl records making cassette tape copies to listen to instead. The main purpose of this was to preserve their records in as pristine a way as possible, but are other reasons (such as convenience) equally valid?

The fact of the matter is that you have a license to access some digital content. Whether you access that digital content directly (i.e. play the CD) or indirectly (play a digital copy on the computer), you are still accessing the same content. Provided you do so in a way that does not violate some other limitation on copyright, there is nothing illegal about that.

It is also allowed that you can access a subset of the content. As an example, the data on an audio CD is distributed in WAV format (which is basically a way to store ALL of the data). Although in theory this is the best digital quality, the WAV file is very large, and it is easy to throw parts of it away (i.e. compress it) to get a much smaller version of the song which, to the human ear, is virtually identical. The most popular of the compressed audio files is the MP3 format.

It must be recognized that the MP3 is a a lower quality version of the WAV format, and if you have a license to access the WAV version, you are allowed to access the lower quality MP3 version. The opposite is not true however: if you have purchased an MP3, that doesn’t give you a license to get a copy of the WAV file from the CD of a friend. Your license doesn’t allow you to access more content (or better quality content) than you purchased.

The ability to access the copyrighted content you have purchased is a necessary right to the consumer. You do have the right to access it in the manner that is most convenient to you, any number of times. You may also share that content (provided you do not violate any of the restrictions covered below).

RIGHT TO TRANSFER THE LICENSE

One other important quality is the ability to transfer the license. If you own a book, CD, or DVD, you can give (or sell) that media to another person, and at that point, the license transfers to that person along with ALL rights and restrictions.

It must be noted that at that point, the original owner has lost all rights to access the content (unless they have purchased a separate license elsewhere). They do not have the right to give away the CD, but keep a digital copy of the content. ALL copies of the content must be transferred or destroyed, or else the copyright has been violated.

I saw a craigslist ad once where someone said they were selling their music collection since they’d already digitized it all so they didn’t need their CDs any longer. That person did not understand copyright. If they actually did what they intended, the instant they access any of the songs they had digitized after the CDs had been sold, that person was in violation of copyright law. They were playing pirated music at that point.

The industry has tried (with very little success) to limit the ability to sell used media (i.e. transfer the license). Fortunately, I’m not aware of any successful attempts (at least in the music, book, and movie industries) of this happening. This is one of the important rights that should be guaranteed the consumer of copyrighted materials.

RIGHT TO SINGLE USE ONLY

The single most important restriction on the use of copyrighted material is that a single license gives you the right to access the material only once at any given time. In other words, two people cannot read the same book at the same time, or listed to the same CD in two different players at the same time.

This restriction still applies even if you are accessing the content as a digital copy. If you have a digital copy and two different people listed to it on two different devices at the same time, that violates the fair use of the material.

In the old days when the primary way to access the content was directly tied to the media itself (i.e. playing a tape meant that you had the tape, or reading a book meant you had the actual physical book), this restriction was basically built in to the license, so there was little opportunity to circumvent this.

Now, with digital copies of most media being available, this restriction becomes much more important, and it is the responsibility of the consumer to ensure that this restriction is honored. If the consumer doesn’t take ownership of this restriction, than the industries are justified in coming up with means to enforce the restriction… and that only leads to problems. The industry is primarily interested in their side of things, NOT the consumer’s, so we definitely don’t want them to be the police of the consumer rights and restrictions.

With digital copies, it is much easier to ‘share’ copyrighted material with friends. That isn’t directly illegal… it’s always been fine to share books you own with others, but the difference is that when you shared a book, you were actually loaning the license, and you weren’t able to access the content yourself until the book was returned.

Sharing a digital copy of music or movies you own is much different because you are keeping the actual license. Although it is not strictly necessary to have the license in your posession in order to access the content (for example, it’s perfectly acceptable to create MP3s from your CDs and put them on an MP3 player that travels with you while the CDs stay at home), sharing a digital copy can easily turn into a copyright violation. You can’t easily ask for the digital copy to be ‘returned’ as you can with a book or physical media. Once given, it’s almost impossible to control who will access the content, and therefore, it’s impossible to control whether or not it will be used with the constraints of single use.

Since the responsibility for policing this restriction should fall to the consumer of the copyrighted material, sharing a digital copy is something that should not be done in almost any circumstance.

NO RIGHT TO DUPLICATE

The restriction on duplicating copyrighted material is essentially the same as the single use restriction.

The purchaser of copyrighted materials does not have the right to make copies of that material to give to others.

I’ve even seen that practice explained as selling a service (making a digital copy) rather than selling the content. Selling a service of making a digital copy of a person’s copyrighted materials is perfectly legitimate… provided they actually produce the license that they have purchased. In other words, if someone brought me a bunch of CDs they had bought and wanted me to created digital copies of the music on them, I could indeed offer that service for a fee. However, I could NOT give them digital copies of the CDs that I own. That is not a service… that is duplication, and that is not legal.

RIGHT TO REFERENCE THE WORK

One right/restriction associated with copyrighted material is the right to reference the work. This allows you to quote from a book, or otherwise reference portions of a work without it being treated as copyright infringement. On the other hand, you cannot reference so much of the original that it is treated as duplication.

I’m not going to spend much time on this right because it’s one of the only parts of copyright that is designed to balance the rights of the artist with those of the consumer. Other rights and restrictions tend to be about protecting the artists rights OR the consumer’s rights, but not both, so these are the ones that have tended to have the worst abuse.

NO RIGHT TO OWNERSHIP OF THE WORK

One final property of copyrighted material is that nobody else has the right to claim ownership of the material and pass it off as their own.

This restriction is so simple and so easy to justify that I will spend very little time on this restriction.

THE LENGTH OF COPYRIGHT

The length of time a copyright is valid has changed a number of times over the years. Rather than delve into the history of these changes, I’d like to consider the length of time that I think that the rights and restrictions should apply for.

As mentioned above, the purpose of copyright should be three-fold:

To protect an artists rights of ownership of their work
To protect an artists rights to make money off their work
To protect the rights of people who purchase the art

Protecting the rights of the consumer is covered by:

The non-expiring copyright
The right to protect the license
The right to access the content
The right to transfer the license
The right to reference the work

Protecting the economic rights of the artist is covered by:

The right to reference the work
Single use only
No duplication

Protecting the ownership rights of the artist is covered by:

No right to ownership of the work

With that in mind, the question is how long should each of the rights and restrictions exist.

The first purpose is to protect the rights of the consumer. These rights must be protected regardless of when they purchase the copyrighted material. The consumer may have bought the material the first day it was available, or a hundred years after it was first published.

It is clear that the only reasonable length of time for protecting the rights of the consumer is forever.

The last purpose (to restrict the right of ownership to the author only) is equally easy. I have no right to take the music of Beethoven or the writings of Shakespeare and call them my own. It is true that neither artist is around to object, but that doesn’t mean that I should be able to make the claim. In my opinion, the right of ownership of the work belongs to the artist forever.

The most interesting section of copyright is that of protecting the economic rights of the artist.

In 1790, the copyright duration was defined as 14 years renewable once for a maximum duration of 28 years. After 28 years, the copyright expired and the work was in the public domain (at which point anybody could sell it without giving any portion of the sale to the artist).

This has been extended several time. In 1831, this was extended to 28 years plus a 14 year extension. In 1909, it was extended to 28 years plus a 28 year extension. In 1976, it was extended to the life of the author plus 50 years. In 1996, it was extended to the life of the author plus 70 years. There have been many other acts and international treaties which have affected the scope and duration of copyright duration. I don’t want to go into these in any detail, but I do want to make a few comments.

In the past, I have been opposed to the changes, but after further reflection, I do believe that the extension to the lifetime of the author is completely legitimate. The author of a work should own that work for as long as they desire. Extending that right beyond the life of the author is reasonable as it is reasonable to pass that property along to his estate in much the same way that a piece of physical property would be passed on. I wouldn’t be opposed to further extensions either. However, I DO believe that this protection comes with some limitations.

First, the right to ownership of the work (i.e. who get’s to claim that they created it) should be guaranteed and protected so long as there is an artist or his estate who owns the work.

The economic rights protected by the copyright should last equally long with one provision: the artist or estate must be making money off the work.

One of the most objectional business practices is engaged in by Disney. Many of their movies are not available to consumers. They are locked up in the Vault (a Disney term meaning that they won’t sell you a copy). The only way to buy these movies is to find a second hand copy (and historically, these have been VERY expensive) to buy.

I fully agree that Disney should be allowed to make money from their property, but if there is property that they are not selling, I do not believe that the economic protection applies to them.

Let me exlain why.

When I was growing up, certain books and movies made a large impact on me. Although there was an artist in each case who owned the actual book or movie, they did NOT own the impressions that they made on me. When an artist releases a work, they no longer own every aspect of that work because, by defintion, a good piece of art grows and becomes part of the lives of the people who observe it. It is true that I have no right to steal money from Disney, but they have no right to tell me to forget the enjoyment I received watching those movies as a child, or to tell me to not hum the songs, or quote lines from the movie. Nor do they have the right to tell me I cannot relive those moments.

So, if a movie or book or piece of music is currently available, then the economic rights of the artist must be protected. But if it is NOT currently available, the right isn’t there. The artist has forfeited it (until such a time as the material is available again).

SOME SPECIFIC EXAMPLES

I’d now like to refer to some specific examples that I have observed that illustrate different aspects of copyright.

COPYING AS A SERVICE

One thing that I have seen offered a number of times is the offer to create digital copies of your media.

Let’s say that I have an old VHS movie that I want to be able to watch digitally. Under what circumstances can I create a copy of that that I can watch on my computer or on a mobile device?

One thing that is important is that a license doesn’t allow you to “add” content. If you own a VHS copy of a movie, you do not automatically own the rights to the commentary and special features that might come on a DVD. You also don’t have the license to the better quality movie (a DVD is considerably better quality than VHS). You only have a license to use the movie as it exists on the tape, or in a form that can be reasonably derived from it.

So, if someone offers you a digital copy of a media that they copied from their DVD for a movie you own on VHS, that would be a violation of the copyright.

But, if they were to take your tape and make a digital copy of it using the appropriate audio/video equipment, that would be fine.

There is one requirement for this service to be legitimate, and that is that the person providing it must be able to ascertain that you own a license to the material. If you give them the media to copy, that’s sufficient.

Anyone who sells digital copies of music without verifying that you have a license to that music is breaking the copyright law.

It IS a perfectly legitimate service though to make digital copies for someone provided they have the license.

DISTRIBUTING MODIFIED ART

When a person buys a piece of art, it is perfectly reasonable for that person to be able to modify it for their own personal use. As an example, if you want to take a song and play it at half speed, that’s fine (though obviously it won’t sound like the artist intended). It’s also fine to take a book and blacken parts of it that you don’t like.

The question is, what right do you have to transfer the modified art. The answer is that you don’t have that right. The artist is the only person who can make saleable modifications to the art since they are the owner of the content.

This was demonstrated in an interesting way a few years ago with two companies named CleanFlicks and ClearPlay. Both of these companies recognized that there was a population who wanted to watch the currently available movies, but who preferred to watch edited versions of them where some portion of the film that they found objectionable (such as sex, violence, or profanity) were removed.

CleanFlicks would pick a movie that they felt people would want to buy in such a form and they would make a copy of it, editing out the “objectionable” content. Then, if you bought that movie from them, they would actually sell you an original, unmodified copy of the movie, and a second copy containing the edited version of the movie. The theory was that, since you are allowed to make edits to copyrighted material for your own use, why would it not be allowed to hire someone to make those edits for you. So what you were actually doing was buying a movie and hiring someone (CleanFlicks) to edit it for you.

Unfortunately, that isn’t exactly what was happening. A service that you could hire to make edits to your personal copy of copyrighted material should be legal (though I’m not aware of any company that advertises this service), but that isn’t the service that CleanFlicks offered. Instead, what was happening is that CleanFlicks made the edits in advance based on their definition of “objectionable”, so when you bought a copy of the movie, they were actually transferring the license of the movie that they had modified. Although it’s close… the courts ruled against CleanFlicks, and ultimately, they went out of business temporarily (the returned, but no longer offered this service).

ClearPlay took a different approach. They created a DVD player that could read a description of a movie. The description contained a list of all the points in the movie where a certain objectionale content appeared. Then, someone who owned the movie could play it in one of these DVD players after telling it that they wanted to skip all occurrences of something they found offensive and the DVD would actually skip these segments (or in the case of profanity, it would just turn off sound momentarily).

So, ClearPlay would sell the DVD players and the movie descriptions, but not the movies (modied or not). As a result, ClearPlay is NOT violating copyright, and remains in existance (and to be honest, is a much better alternative since they give you the choice of determining what content you want to skip and what content is okay to play, so it’s much more flexible in meeting your particular requirements).

DISNEY’S VAULT

Although I’ve already touched on this, I want to specifically state that I feel that the concept of the vault should negate the portion of copyright law which protects the economic interests of Disney.

The minute a work goes ‘out of print’, the artist at that point is not deriving economic gain directly from that piece of art, and I do NOT believe that the right to such protection extends to punishing people who are NOT infringing on that right.

In other words, if an artist is not deriving economic benefit from the work, then the fact that someone else is is not infringing on their right.

The minute that the work goes back in print, the artist regains the right of that protection up to the limits of the duration of that protection.

There needs to be some reasonable definition of what available means. For example, if a movie were generally available for $20, but then it were made available only in a $200 version for a period of time, this practice is virtually identical to the vault where a piece is not available at all. The definition of available should mean that it was available at a price comparable to it’s price in the past.

FINAL THOUGHTS

It should be fairly obvious that I support the protection of copyrighted material, but I’m also in favor of the rights of the consumers. I am also wary of giving the owner of the copyright too much power since in essence, the owner of a copyright has an absolute monopoly. It isn’t wrong to have a monopoly (especially in this instance), but it is wrong to use the monopoly to dictate the economy of the material.

I’m in favor of extending the rights of copyright ownership indefinitely, but I’m also in favor of modifying existing copyright law and enforcement to better recognize the rights of the individuals who purchase the material.