The digital censor / Utah firm locked in legal battle over software that blocks out sex and violence on DVDs

From: San Francisco Chronicle, CA - 20 Jan 2003

Benny Evangelista, Chronicle Staff Writer

There's a bloody battle sequence in the Mel Gibson movie "The Patriot" which shows bullets slamming into British soldiers and a speeding cannon ball decapitating an American revolutionary.

Too graphic? ClearPlay Inc. plans to market a new DVD player that automatically skips past graphic violence, gratuitous sex and profane language.

Hollywood's top directors and movie studios are yelling "Cut!" They have filed suit to block ClearPlay and other companies from offering sanitized versions of popular films, saying it infringes on their artistic integrity and trademark rights.

"This is an abomination," said Robert Giolito, general counsel for the Directors Guild of America. "I have more regard for music pirates. At least they respect the product."

Yet ClearPlay and a dozen other firms offering cleaned-up PG-13 and R-rated videos say they are only giving viewers a reasonable alternative to what they consider objectionable material. "In the home, families should be able to watch (movies) any way they want to," said Bill Aho, ClearPlay's chief executive officer.

The controversy has ignited yet another battle between Hollywood and companies creating cutting-edge digital entertainment technology.

"It's the digital equivalent to your mom slapping her hand over your eyes in the theater," said Mike McGuire, research director for media with GartnerG2.

"Striking that balance between technological innovation and the original intent of the artists for their work is not going to be so easy."

ClearPlay showed off a prototype of its new DVD player during the Consumer Electronics Show in Las Vegas earlier this month and plans to sell it for less than $100, starting this fall.

The Salt Lake City firm also hopes to persuade other DVD manufacturers to include its ClearPlay filtering technology in their models.

DVD makers, eager to maintain the profit margins of the hottest-selling consumer electronics device in history, are already adding functions to DVD players: MP3 playback, digital photo printing, digital recording and built-in karaoke machines.

The ClearPlay DVD incorporates filtering technology the company has sold since 2001. Computers with DVD drives can download the filtering software.

ClearPlay staffers have screened more than 300 movies, from "Air Force One" to "Zoolander," released with Motion Picture Association ratings of PG, PG-13 and R.

For each movie, the company's staff members have programmed the ClearPlay software to skip or mute scenes they deemed objectionable. ClearPlay says its software can make precise frame-by-frame cuts, taking "great care and effort" to maintain the continuity of the story.

ClearPlay customers buy or rent their DVDs and have the option of disabling ClearPlay when the kids aren't around and watching the uncut movie.

ClearPlay charges customers a monthly subscription of $7.95 to download regular updates with new movies.

Similar computer-based programs include MovieMask, from Trilogy Studios of Salt Lake City, and MovieShield, from Family Shield Technologies of Greeley, Colo.

With its DVD player, with preinstalled software, ClearPlay will take the technology to TVs, and subscribers will receive regular updates through a CD- ROM that loads new filters.

The DVD player will include the TV Guardian Foul Language Filter, from Principal Solutions Inc. of Rogers, Ark.

Already found in some Sanyo and Fisher brand TVs and VCRs, TV Guardian monitors the closed-caption signal from TV programs and video. For instance, TV Guardian will mute the audio when it detects the word "crap" and might substitute the word "crud" in the closed captioning stream.

ClearPlay doesn't edit movies like "American Pie," with so much R-rated content that removing it would make little sense.

In a demonstration at CES, Aho played a DVD of "The Patriot" without the most gruesome battle scenes, including the special effects shot of a cannonball knocking off a soldier's head. "A lot of people would find that sickening," he said.

Hollywood is not persuaded. The legal action started in August, when a Colorado distributor of DVDs and videotapes edited by CleanFlicks LLC of Pleasant Grove, Utah, filed a pre-emptive lawsuit against the Directors Guild of America and 16 directors, including Steven Spielberg, Steven Soderbergh, Robert Altman, Martin Scorsese, Robert Redford and Sydney Pollack.

CleanFlicks, which rents and sells DVDs and tapes edited to exclude sex, nudity, profanity or extreme violence, asked a federal judge to determine that its actions were legally giving consumers the ability to play edited movies in the privacy of their own homes.

In September, the DGA fired back with a counterclaim against CleanFlicks, widening the scope of the litigation to include ClearPlay and 12 firms that offer cleaned-up movies.

In December, eight major studios -- Warner Bros., the Walt Disney Co., Metro-Goldwyn-Mayer, Sony Picture Entertainment, Universal Studios, Twentieth Century Fox, Paramount and DreamWorks -- also sued, claiming that the editing companies violated trademark laws and that only copyright holders have the right to make the "derivative works" that the edited videos become.

"It's not a question of emancipating the consumer or giving the consumer rights he or she does not already have," said the DGA's Robert Giolito.

"These parties are offering, either through mechanical or digital means, an altered version of somebody else's work," he said. "They're not giving the consumer any choice of what to see."

The directors argue that they have no control over the changes made by ClearPlay and other companies in their films, yet their names remain on the credits.

The changes made by a third party, such as deleting the first harrowing minutes of "Saving Private Ryan," can totally change the meaning or impact of a film, said Carol Stogsdill, the directors guild communications director.

And one firm has discussed editing commercial products into a film, turning a "glass of orange juice to a Diet Pepsi," Stogsdill said, noting, "It's not just about deleting a few four-letter words."

The Motion Picture Association of America has also said third-party editing raises another disturbing possibility. "There are those who would revise a film for what they claim to be benign reasons," MPAA President Jack Valenti said in a statement. "But there are others who would alter for pornographic and obscene reasons. To allow one, it would seem you must allow the other."

ClearPlay has filed countersuits against the directors guild and the movie studios and hired Andrew Bridges, a noted Palo Alto intellectual property lawyer.

Unlike firms that make edited tapes or DVDs, ClearPlay doesn't alter an original work, just how it is played, said Bridges, of Wilson Sonsini Goodrich & Rosati. "It's like they're saying you can't fast-forward through a scene you don't like. If ClearPlay is illegal, then so is the remote control."

Legal experts say the movie industry could have a difficult time winning their case against firms like ClearPlay that make virtual edits of DVDs.

"This is a leading-edge case," said James Burger, intellectual property attorney with Dow, Lohnes & Albertson of Washington D.C. "What if I create a piece of software that allows each individual user to manipulate (a newspaper story) so they feel better about reading it?"

Existing laws give copyright holders specific rights to prevent unauthorized changes or copying.

"But it doesn't anywhere say you have a right to control how it is presented in a private setting," said Evan R. Cox, a partner at Covington & Burling in San Francisco. "It'd be like if you're reading a book. Do you have to read every page in sequence, or can you skip chapters if you want to?"

HOW CLEARPLAY WORKS

-- ClearPlay staff members prescreen movies released on DVD for sexual content, strong language and graphic violence for which the film received a PG- 13 or R rating.

-- Software skips over or mutes those frames and scenes when the DVD is played on a computer on which the software has been loaded.

-- Currently, ClearPlay users can download the software from the Internet and pay a $7.95 per month subscription fee, or $79 annually, to access updates with new movie filters.

-- ClearPlay plans to market a stand-alone, sub-$100 DVD player with its filtering program preinstalled. CD-ROMs to load new movie filters into the DVD player will be available to subscribers.

©2003 San Francisco Chronicle