Piracy Is Piracy

No matter what this asshole says, he’s a video pirate. End of story. Go to jail. Go directly to jail. Do not pass Go. Do not collect $200.

Sorry, but illegally copying an entire movie — and then altering it to suit your uptight, holier-than-though whims — doesn’t fall under “fair use” by any stretch of the imagination. Trust me — I’ve had lawyers look into this very issue (for a different purpose, but the legal conclusion specifically covered this level of use). The justification that he’s not making much profit is positively ludicrous. Any profit on such activity is illegal.

You’re providing a service in exactly the same manner as a jewelry fence is. You’re nothing but a common criminal, and should be treated as such.

As a parent, I can certainly sympathize with the idea that parents want to control what their kids see. I may ridicule them for some of their choices (I particularly like the line in the article about these people wanting to return to the 1950s), but as parents, those are their choices to make. Hell, I skip over scenes from Indiana Jones and the Temple of Doom when watching with my (older) daughter at home.

But I don’t even try to put Die Hard into the DVD player. Yes, it’s a fantastic Christmas movie, but it is not — and was never intended to be — a “family” film.

There’s a huge difference between a parent exercising control and a self-righteous editor deciding for them what’s appropriate or inappropriate. But even more than that, he’s illegally copying movies. Why the studios haven’t slammed his ass with a multi-million-dollar punitive-damages suit and pursued criminal charges is utterly beyond me.

Now, the parental-control software mentioned at the bottom of the article is a little murkier — if it, in fact, works as noted, it’s not actually altering anything. In effect, it sounds like it functions much like my own chapter-skipping. But I’d have to see more. If it’s an all-or-nothing function, either “on” or “off,” then they lose any credibility. If it allows me, as a parent, to make my own decisions — specifically — about what I show, then I’m inclined to give them at least a little slack.

Though not much. It still reeks of promoting lazy parenting.


At 8:40 PM, Tiff said...

So, at the risk of treading into a minefield, allow me some clarification of your perspective here.

The editing service buys a fresh new copy of the DVD in question for each order they receive. They then send this fresh new DVD, which they have in some way disabled (probably with a sharpie or something), to the customer with another disc that has the edited version.

So every person who uses this service buys one new, undisputably legit DVD, and receives a playable disc in return, along with the damaged original that cannot be used or resold.

I guess I'm not seeing what makes this piracy. Family buys one copy of movie, copyright holder gets paid for one copy of movie, and only one usable physical copy of movie results from the transaction. I mean, if I went and bought Schindler's List and edited it myself, then destroyed the original, most courts would call that fair use. So it's piracy if I pay someone else to do the editing and original disc-destruction for me? Perhaps I am missing something?

At 10:16 AM, Bill Coughlan said...

Oh, don't worry about walking into a minefield. Things can get pretty heated, but I never take counter-arguments (reasoned ones, anyway) personally; I hope that the reverse applies as well.

Besides, I'm confident that I can defend my position reasonably and rationally.

The key to this is threefold -- one, the person is making a complete copy of the disc, two, he is distributing the disc, and three, he is profiting from the transaction.

(All of this is flat-out illegal under the Digital Millennium Copyright Act, but I'll leave that alone, since the DMCA contains any number of provisions that explicitly violate existing copyright law, and I've no doubt that it'll eventually be either struck down or at least partially rescinded.)

The key to the piracy designation is that most "fair use" only applies to personal or educational use -- not as a profit-making venture (I'll get into commercial allowances in a moment). So yes, paying someone to do the editing for you is piracy, whereas doing it yourself, for your own, individual use (i.e., without any money changing hands) would probably not be. I say "probably" because there's a significant caveat which I'll get into below.

Distribution pretty much throws any claim to "personal" use out the window; if you're distributing what you've done, it's clearly for somebody else to use.

Any commercial use of material under "fair use" guidelines can only be made when the resulting product is not representative of the artistic entirety of the piece. For example, you could use a clip from a movie for demonstration purposes (say, as part of a larger presentation) without specific permission, but you could not use a substantial portion of the entire film (just as you can quote from a book, but cannot reprint the whole thing or a significant part of it, like an entire chapter). From a legal standpoint, the portion used must not be in any way representative of the piece as a whole.

It's worth noting that the specific amount that can be used is a "gray area" designation -- I routinely get queries about exactly how many minutes of a movie could be used in a particular instance, as if there's some specific, legally mandated cutoff, and I have to reply that it's not that simple. But when, for example, someone wanted to show a Superbowl commercial in its entirety, it was clear that no, that was not allowable (at least not without permission), even though the piece itself was a mere 30 seconds.

(This is also the provision that protects limited satirical or derivative work, but again, the result must clearly be nonrepresentative of the original piece. You can't show Gone With the Wind, change the ending so Rhett does give a damn, and claim you've done something original. The guy who originally re-edited Star Wars Episode One as "The Phantom Edit" had clearly violated this provision, which is why he had to jump through hoops to avoid prosecution.)

The original source (e.g., the movie title) and all copyright information must also be clearly and prominently presented along with the piece, which is why you'll often see a little "Copyright 2005 Warner Bros." on clips shown on various television shows (though not always, as it's not necessary if the copyright holder grants explicit permission to do otherwise -- on, say, The Tonight Show, where the clip is specifically provided for promotional purposes).

Furthermore, any portions used must be presented exactly as they appear in the original. In other words, editing is explicitly prohibited under "fair use" guidelines. This provision would actually lead me to believe that the courts may not consider personal "editing" of a piece to fall under "fair use" allowances, though again, it may be a difference between personal and commercial application.

(The copyright holder can, of course, alter a work for other purposes, which is why you'll see versions edited for television, airlines, and the like. But that's solely the decision of the copyright holder -- legally, anyway. I'll get back to this in a second.)

It's easy to argue "Who's being hurt by this?" and I can certainly sympathize. After all, I think most "victimless" crimes are positively idiotic (not to mention a waste of taxpayer money and a ridiculous government intrusion into personal behavior). But yeah, somebody's being hurt by this -- the artists who created the original work.

If someone re-edited a movie I'd made, you're damned right I'd prosecute to the fullest extent of the law. Why? Because someone's put together some piece of crap and passed it off as if that's my work. It's analogous to slander -- someone's claiming I "said" something I didn't. And for an artist, whose entire profession depends on his artistic ability, that can be devastating.

Saving Private Ryan without the Omaha Beach sequence? Completely undermines the gravity of the mission to recover Ryan, the consequences of failure, the brutality of war. Yes, that's just an opinion, but it's the one held by the artist -- that's the artistic message he was conveying when he created the original work.

(My above comment about copyright holders having the right to alter a work brings up another debate, namely that in Hollywood -- or in publishing, for that matter -- the copyright holder is rarely the actual artist. So alteration of an artist's work is not illegal, but it does violate the same artistic expression pronciples, at least if done without the artist's permission.)

This weasel's abusing copyright law -- and undermining an artist's right to expression -- at every step in the process. Someone's right to "speak" doesn't mean you have to listen, but your alternative is clear: Don't. Object to the nudes at an art gallery? Don't go. Don't like the language in a best-selling book? Don't read it.

Offended by something in a movie? Don't watch it. You can always stick with Veggie Tales.

At 12:50 PM, Tiff said...

1. I agree completely that paying someone to edit a movie is stupid, lazy parenting, whatever, and it's not a service I'm interested in patronizing. Total Devil's Advocate going on here just because I'm interested in copyright issues.

2. I agree that it's a violation of artistic vision.

However, as a consumer of entertainment products, I'm not sure that the artistic vision of the artist is really my problem. I mean, Steven Spielberg may have made Saving Private Ryan for art's sake, but I (and I mean the rhetorical "I," sort of like the rhetorical "you,") just want to sit down and watch a movie for a couple of hours and not think about my life. It's not particularly important to this rhetorical Me what the artist wants- I paid to watch his movie, leave me the hell alone.

And Steven Spielberg is probably a bad example- maybe whoever made "Deuce Bigalow" would be a better example of an artistic vision no one should have to care about. ;)

But anyway... Art is an important expression of ideas and all, but a a very wise someone once said that the only way you can be sure to retain complete control of your ideas is to never express them in the first place. It's also a function of art that the viewers/consumers of that art will react to it in some way. And maybe that reaction is to say, "You know, that was a great movie, but the swearing/sex/whatever was kind of gratuitous and detracted from my enjoyment of the piece." Art, in other words, isn't really a one-way form of communication, and if artists want to have their say through their art, it stands to reason that the consumers of that art will have their say as well.

But be that as it may, integrity of artistic vision isn't so much a matter of the law, but who gets to make money from the product of that vision is.

And my (albeit amateur) understanding of copyright law is that it's called Copy-Right law because it deals with who gets to reproduce a work. Fair enough, but copyright law has always been about who is generating additional copies of a work, like in the case of P2P- additional copies of 50cent's album get made and yet the copyright holder doesn't get paid for them.

In this case, however, no "additional" copies are being produced. One copy is paid for, and one copy emerges from the transaction. (And I agree that it's wise to exclude the DMCA from this discussion, since the DMCA criminalizes my fair-use of doing the editing myself anyway.) But my point is just that the spirit of copyright law really just concerns itself that the content owner gets paid for each new copy of the content produced, and that's happening in this case. I think that the sanitized versions are an unanticipated result of technology that wasn't readily available when the laws were written, and as a result, there's a loophole, and now Congress or the courts or whoever have to decide whether to close it.

It does violate the artistic vision, but that's not protected by copyright law, and it's not a misleading attribution of the work- it's NOT like saying Steven Spielberg said something he didn't say, because the purchaser of the movie knows clearly that he/she is purchasing an edited version. In fact, that's the whole point of the transaction. So it's not like Joe MovieBuyer is sitting in his mobile home watching the movie like, "Oh Mah GAWD, I can't believe Steven Spielberg didn't include Omaha Beach in this movie!" He knows there's stuff missing from the movie because that's why he bought the sanitized version instead of going to the local Best Buy.


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