On the surface it sounds benign enough, when one speaks of it: a device allowing people to decide just what they do or don't want to see on their newly purchased DVD, or so its manufacturer says.
But depending upon whom one asks, ClearPlay's DVD filtering technology is either a godsend to parents wanting a new way to let their children see films without the overdone sex, violence, or (expletives deleted), or a new and pernicious censorship technique.
"The creative community and the content community have legitimate concerns about how their products are being altered in a way that they did not intend, and that changes the basic product," Sean Bersell, vice president for public affairs for the Video Software Dealers Association, told AVNOnline.com. "On the other hand, we appreciate the desire of families to be able to control the entertainment in their own homes and to make sure the movies shown in their homes are appropriate for their families."
The question is amplified in the wake of the so-called Family Entertainment and Copyright Act signed by President George W. Bush in April. The bill criminalized videotaping in movie theaters for pirate film distribution on- or offline. But it also featured a measure known as the Family Movie Act, tacked on by Rep. Lamar Smith (R-Texas), which for all intents and purposes allows companies like ClearPlay to edit film or television content for their subscribers.
Especially piqued by the Family Movie Act is the Directors' Guild of America, whose spokesman Morgan Rumpf has been quoted as calling it an "exception to copyright protection" with "far-reaching implications that cannot fully be comprehended today."
Those implications, he continued, go beyond just excising the sex and violence – all the way, he said, to letting third parties change political content and even the historical record, along with allowing profiting from abridged films … or even making versions that focus on the sex and violence even more tightly.
Individual vs. Third-Party Editing
Part of what makes ClearPlay so problematic for many is that its product may allow individual editing, but ClearPlay doesn’t actually get involved in the editing process itself. Other companies – Clean Films, Family Flix, and Clean Flicks, for example – distribute Hollywood films they have edited after release but before sale to individuals. That sounds like a clear case of copyright infringement. "A CleanFlicks-edited DVD is a popular Hollywood title without the profanity, graphic violence, nudity, and sexual content," CleanFlicks notes on its Web site.
"Family Flix is second to none in providing the highest standards with editing Hollywood movies," says a similar statement on Family Flix's Web site. "Family Flix removes profanity, nudity, extreme violence,and sexual situations from movies you own or would like to purchase."
Clean Films also includes on its site a list of films it won't edit, " due to the overall theme or number of required edits." The company’s technique involves either volume drops for (expletives deleted) or a "cut edit used to take out scenes with nudity, sex, or extreme violence. This cut edit is not noticeable, similar to viewing PG-13 or R-rated movies that have been edited for TV."
ClearPlay chief executive Bill Aho lobbied Smith for the Family Movie Act and contributed to Smith's last re-election campaign, and ClearPlay has some high-profile supporters and advisory board members. "Movie fans who have been worried about excesses in violence, sexuality, and language can now enjoy their favorite films with a sense of security and satisfaction," said one of those sponsors, conservative film critic Michael Medved, in a recent statement.
Another ClearPlay advisory board member is Skip Riddle, the founder of communications marketing consultancy Riddle International … and the son of Nelson Riddle, the legendary musician-composer-arranger who wrote numerous film and television scores and adaptations (and won an Academy Award for arranging The Great Gatsby) when not making his reputation as Frank Sinatra's most empathetic arranger.
UnClear Consensus
There is not quite as clear a ClearPlay consensus as some might think. This may have been suggested best by a recent editorial in the Virginian-Pilot, which said the "worries of … Hollywood heavyweights" were bothersome "until we remembered that they regularly sanitize their own work for television, or for airlines, or for anyplace where there's money."
The Virginian-Pilot editorial distinguished between ClearPlay's professed intent –allowing a subscriber to zap what he wants – and third parties doing the zapping on their own. "We were prepared to be outraged," the editorial continued. "But then we realized that paying somebody else to take out the sex, profanity, and violence wasn't different from sitting there and fast-forwarding ourselves. (Companies that physically change the content of movies without a director's permission, however, are another story. We're still outraged by them.) … [It] is the kind of thing people do all the time, even without a special DVD player."
The Directors Guild is concerned that the very thing the Virginian-Pilot referenced parenthetically will happen much more often than people think. "This legislation is about much more than giving consumers a choice in what they watch and don't watch," a Directors Guild spokesman said of the law that gave ClearPlay its virtual green light. "Unidentified employees of electronic editing companies make the choices of what is edited out of each film they review – it is their choices that govern and not the consumer's."
Aho disagrees. "It's really a matter of personal choice in your home," he has been quoted as saying. "Should you have the right to experience media your way, or should the preferences of the director follow you into the living room?"
Freelance journalist Zack Pelta-Heller, writing on AlterNet, said ClearPlay is not producing edited bootlegs but exercising a "far more subtle" kind of censorship: A team of "filter developers" delineate the material most likely to raise parental hackles and builds filters aimed at those.
One of ClearPlay's strongest opponents has been U.S. Rep. Howard Berman (D-Calif.), who has sounded the theme that ClearPlay is in fact a third-party censor. Berman told a recent Directors Guild gathering that parents are not involved in how the ClearPlay filters are designed, while "people [ClearPlay has] hired sort through movies and make up decisions about what should and shouldn't be in those movies … which they will sell commercially without the involvement of the creative community … in order to profit. And they don't share the profits with those who created the original work."
Suitable for Litigation
The FECA and the Family Movie Act essentially nullify a 2003 lawsuit against ClearPlay by the Directors Guild, eight film studios, and several directors including Oscar-winners Steven Spielberg and Robert Redford. The act allows "limited portions of audio or video content of a motion picture … from an authorized copy."
That language seems to put ClearPlay in the clear to sell its technology to DVD makers or sell the ClearPlay-enabled players themselves, either from their own Web site or at Wal-Mart stores. But the Act doesn't nullify another part of the directors' suit aiming at the kind of companies producing the kind of altered product for sale the Virginian-Pilot editorial decried.
Customer relations management solutions company RightNow Technologies, whose clients include ClearPlay, thinks ClearPlay is doing something right. ClearPlay has "achieved 2,095 percent business growth and 98 percent customer retention over the past year," according to a RightNow announcement earlier this week.
The Video Software Dealers Association took no position on the Family Movie Act because "that did not directly implicate our interest," according to Bersell, but he also said ClearPlay's issues compare to those which hovered around the videocassette recorder in its infancy. A VCR user, while recording a television show or a movie, could choose what to leave in or edit out just by using the pause button.
Bersell said he understands why some might think of ClearPlay as a third-party censor, since the company uses staffers to build its filters. But in terms of the law, he said, ClearPlay "is in the clear today" because, whatever one thinks of what its product lets a DVD player's owner do, the Family Entertainment and Copyright Act – including the Family Movie Act provision – "short-circuited the [litigation] regarding whether they were infringing copyright," as opposed to companies that edit and resell or rent fixed copies of edited product.
"Regardless of what you thought about ClearPlay," Bersell said, "Congress says that's okay. That's not a copyright infringement or a trademark infringement; there's nothing illegal about what ClearPlay is doing, given the current business model. But that left open the issue about Clean Flix and the other services, and that remains to be litigated."
