I was wondering why I couldn't find it. I mean, it makes sense Lexis didn't have it online yet, but it should have been somewhere.

I am embarassed at my rusty legal research skills. But I thank you, heresiarch, for your assistance.

{ k }

But the danger is that it could set a precedent for attacks on other creators, like those who produced Star Wars - The Phantom Edit, which removed Jar-Jar Binks from The Phantom Menace, or mashups of trailers like Brokeback to the Future.

There are already plenty of precedents for that type of attack. Negativland's fight with U2 in the '90s and the more recent dustup between DJ Dangermouse and EMI over the Grey Album are two that come to mind.

Smart creators pick their battles. Even though Comedy Central pulled the controversial "Trapped In The Closet" episode of South Park, they turned a blind eye to its availability on the internet. Even going so far as to give a subtle wink of approval to the unauthorized distribution.

George Lucas' response to The Phantom Edit seems more bemused than annoyed. "The Internet is a new medium, it's all about doing things like that," said Lucas, who added that it gives people a new creative outlet. "I haven't seen it. I would like to." It's not that he couldn't have gone after the creators, he chose not to. He gets it and that must have endeared him to his fan base.

Not a lawyer, but your example seems consistent with long established practice. And whether or not you're breaking the law by adding your "Hiked up the mountain" credit would depend on where you put it. Are you adding it to the very beginning or end of the tape or are you inserting it right after the "Directed by" credit? One alters the integrity of the film, the other doesn't.

The right to alter a film has been a separate, negotiable right for a long time. It's a right television channels buy. Blockbuster used to rent cleaned up versions of movies (don't know if they still do) and I presume they negotiated the right to do that.

To put "The Godfather" through a blender and then sell it as the work of Francis Ford Coppola is fraudulent and I can't see how it could have ever fallen under "fair use". Fair use isn't carte blanche to do whatever you want and then profit from it.

When I look at the four factors used to determine fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;
   
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   
4. the effect of the use upon the potential market for or value of the copyrighted work.

This is very clearly a derivative, and non-transformative derivative at that.  The editors added absolutely nothing to the works, they took some parts away.  Generally, fair use requires some sort of transformative use.  Commentary, parody, all those things transform the underlying work to make a point of some sort. This didn't.

The court was definitely right under copyright law.  

As to your example, it depends where you put the spliced frame into the film.  If you do it at the very beginning or end, and do not affect the underlying film, you're likely OK.  After all, adding two pages to the end of a book doesn't change the contents of the book at all.  If you place it over a bunch of frames in the middle to cover a piece you don't like, you're definitely in trouble.

Thalia

Nope, it's flat out copying.  From the opinion (linked to in comment #1 in this thread):

CleanFlicks first obtains an original copy of the movie from its customer or by its own
purchase from an authorized retailer. It then makes a digital copy of the entire movie onto the
hard drive of a computer, overcoming such technology as a digital content scrambling protection
system in the acquired DVD, that is designed to prevent copying. After using software to make
the edits, the company downloads from the computer an edited master copy which is then used to
create a new recordable DVDR
to be sold to the public, directly or indirectly through a retailer.

Now, ClearPlay is a different matter entirely.  They sell a special DVD player.  The DVD you watch is the same one the studio sold.  However, for each movie title, you download special software designed to skip the exact naughty bits in that movie.

It would be cool to hack ClearPlay and cause it to play only the naughty bits.  That would probably sell much better.

Charlies,

I'm no Thalia, to be sure, but I do have a JD and a couple of Bar numbers (although, FYI, they're very, very fresh), so I'll take a stab at answering your questions without being obtuse or, hopefully, making too much of a fool of myself (see comment #2, infra).

"Fair use" is a difficult territory, even for lawyers, because it hasn't been "nailed down yet", and it probably won't be for a few decades, if ever. But here are the "four basic guidelines" courts use for determining whether a use is fair or not:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Obviously, your second hypothetical (charging a fee for a delivery service) doesn't affect the copyright in any way, shape or form. Your third hypothetical, on the other hand, is incredibly different because you have edited the actual work, and part of your "fee" may be for the edited work. So, yes, you may indeed run afoul of copyright laws. After all, your use was for a commercial nature, the work itself (a movie) is clearly within the bounds of work typically protected by copyright, you have used the work in its entirety, and the effect of the use upon the potential market may be quite high indeed (although I admit this final point is debateable, it is also moot, as none of the guidelines are outcome determinative and you have clearly run afoul of the first three). Thus, your hypothetical would not be fair use at all. You should have asked permission (just like the defendant's in this case who censored and resold these works while thumbing their nose at Hollywood, instead of paying for a license to make the edits).

Whatever else it means, fair use does not imply being able to edit someone else's creative work in anyway you so choose, and then resell it. however, the amount of work edited will affect the outcome of the case (or whether it is even brought to litigation).

I tend to think of fair use this way: if you can make a cheap buck off it, it's probably not fair use. But if, in the scheme of things, your use is in the public good, it probably is fair use. And, of course, if you wanted to splice in (or scrub out) frames in a film you purchased for your own home use, that is perfectly acceptable. Perhaps that is where you were getting confused?

Hope that helped,
{ k }

As I understand the operation, this was not a "knock-off" process, but each tape was paid for and then treated separately.

I hadn't looked at it that way. If that's the case, then I agree with you 100% and reverse my opinion on the matter completely. If extremists spend their time this way, instead of campaigning to make ALL movies conform to their twisted opinions, then we are all better served.

So long as these scrubbers are not making illegal copies then they have not broken a law. If you've bought it, then you can alter it however you see fit as far as I'm concerned. The decision as it stands is a slippery slope toward things that microsoft and other companies want like not being allowed to alter your own computer software and even computer hardware.

escalators never fail; they just become stairs

So you add the frame "Hiked up the mountain by charlies" - congratulations you have now published your own DVD.

The problem is that the original owners of movie have the exclusive right to publish and hasn't authorized you to republish it.

Memory is a strange bell, jubilee and knell.

They didn't take out the killing, they took out the dirty, dirty words.  We wouldn't want childrens' minds to be warped by hearing someone say "Take that, assbite" as they shot holes in someone else, would we?