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Keep Your Hands Off Those Nipples!
There was a time when movies weren't filled with cursing and "adult situations," and, believe it or not, some people miss those days. But if Hollywood directors have their way, Grandma will have to view every nipple and listen to every filthy word.

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by Brian Flemming

Imagine this scenario: You go to a movie theater to see the latest release from Hollywood. Twenty minutes into it, you find yourself bored to distraction. So you turn to your companion and say, "I'll be right back," and you slip out of the theater intending to buy some popcorn.

But just a few feet outside the door of the theater, a beefy man approaches, throws some paperwork at you and says, "You've been served." You look down at the paperwork. It's a summons requiring you to appear in Superior Court. You're being sued. By the Directors Guild of America. The charge: You failed to view the movie as the director intended.

Don't worry. The DGA, while very litigious of late, apparently doesn't intend to sue you for this violation just yet. In fact, the guild recently stated, unequivocally, that its members do "not challenge the rights of patrons of movie theaters to leave the theater at any time."

Generous of them, isn't it?

What led to this bizarre statement is an equally bizarre attempt by the DGA and Hollywood studios to prevent certain companies from releasing "cleaned" versions of feature films, a process that a DGA lawyer biblically calls "an abomination" and Steven Spielberg claims threatens the art of cinema itself. Here's how the logic of the directors and studios works:

  • Leaving a theater during a movie: fine.
  • Leaving your TV set while a DVD is playing: fine.
  • Skipping over scenes and muting offensive dialogue while playing a DVD: fine.
  • Writing software that automates this process: immoral.

At this writing, furious legal motions are being exchanged between the DGA and studios on the one hand, and a collection of independent DVD and software distributors on the other. The independent companies use various methods to offer versions of Hollywood DVDs that differ from the originals, mainly by censoring naughty words and naughty bits so that parents can comfortably view just about any Hollywood movie with their children.


One company, CleanFlicks, simply copies a DVD, edits the content, and sells copies of that altered DVD. (CleanFlicks buys one original DVD for every sanitized copy they sell, to avoid infringing on the studio's copyright.)

But other companies employ innovative technology that undoubtedly would have excited many DGA directors back in their younger, more open-minded days. For example, ClearPlay software allows playback of modifications to Hollywood movies without making a copy of the original. You simply put your store-bought DVD movie into a player, fire up the ClearPlay software along with a file designed for that particular movie, and ClearPlay automatically cuts out certain scenes and mutes certain words from the soundtrack.

Basically, a ClearPlay file does the same thing Daddy could if he watched the entire movie alone, taking careful notes, then invited the more innocent members of the family back into the living room, played the movie again and consulted his notes to hit "skip" and "mute" on the remote at key moments. But ClearPlay--whose programmers use their own judgment to eliminate the "occasional R or PG-13 content"--does this automatically, so Daddy doesn't have to waste his valuable time.

The ClearPlay file used in conjunction with a particular movie is essentially a script, also known as a macro. In the same way that you can create a macro for Microsoft Word that automates keyboard keystrokes, a ClearPlay macro automates remote-control keystrokes--it essentially remembers a series of clicks on a remote control and plays them back when you want those clicks. The Hollywood studios claim this macro is a "derivative work."

But it is legal to share, and sell, macros for Microsoft Word without obtaining the company's consent or paying it royalties, and a large number of people and companies do just that. Like a ClearPlay macro, the third-party Word macros are not the program itself, they merely use it, so Microsoft essentially has no claim against macro distributors. You could even sell a macro that made Microsoft Word type out the words, "I hate Microsoft Word." Microsoft, with all its power, couldn't legally stop you from selling this file that makes Microsoft Word say things that Bill Gates doesn't like.

Other DVD censorware technologies are even more advanced than ClearPlay remote-control macros. MovieMask, for example, doesn't skip over scenes--it actually alters images so that you see the scene, but not what MovieMask deems to be offending content within the frame. The "masks" are elaborately painted to be as unobtrusive as possible. In Titanic, for example, Kate Winslet's breasts get Ashcrofted with great skill by MovieMask:

[winslet's breasts masked]

You may recall that in director James Cameron's version of the movie, that pink negligee was nowhere to be seen--Winslet had her knockers out there in front of God and everybody. But through the magic of MovieMask, Winslet is transformed from a shameless hussy into a mere hussy.

In truth, I don't understand how children will be harmed by viewing Winslet's left nipple, but MovieMask and similar programs open up possibilities that go far beyond Puritan censorship. To view the online demo of MovieMask is to see a potentially thrilling future for digital media, a future in which consumers get to play around with DVDs and share what they do with others. It's a future where the Phantom Edit of Star Wars: Episode One could be distributed easily over the web--a small file that you download and apply to your own copy of Episode One, thus viewing the Phantom Edit at full quality.

Beyond censorware

This exciting new liberty with the media we buy suggests the kind of potential that came with innovations such as the World Wide Web or the DVD itself--it's the kind of innovation likely to inspire new innovations that are impossible to forecast at present. Having never had this freedom, it's hard to predict everything that could be done with it. But it's fun to try.

Imagine film students re-cutting the work of the great directors--doing the same thing with Scorcese that art students do when they emulate Picasso as a class exercise. Imagine your being able to express your feelings about a certain film by using that film. Send a friend your own DVD commentary track, or your radical recut, or even your own added scenes. Maybe you can bring some geographical coherence to the action scenes in Gladiator, for example. Film buffs could go crazy with this stuff.

Literary critics get to discuss the words of authors by quoting those words themselves. Imagine if film critics, professional and otherwise, could discuss films with film, not just words. Imagine how much more direct that expression would be (and there are a few film critics out there who could use a little hands-on experience in manipulating film images). Opponents of this kind of freedom like to condemn it as "unauthorized," but that's precisely the point--these important elements of our culture would be freed from one dominant interpretation.

There might be entirely new genres of film waiting to be discovered. The film "remix" could have even more potential than the music remix, as film brings together many art forms, including music. One genre might involve changing the genre of a film. For example, turning a drama into a comedy. Perhaps you would like to see Taxi Driver as a musical. These new technologies could help you to create it. Will it be lame? Probably. But who knows what kind of expression we might achieve as we go down this road and experiment with the possibilities? Jazz, often called America's one "original" art form, had similar origins (and ran into similarly hotheaded, moralistic opposition from the guardians of culture).

Because using these third-party DVD macros would require every single viewer to possess a copy of the movie being remixed, one might think that Hollywood wouldn't have a problem with the idea. After all, if I remix The Matrix, I have to buy or rent a copy. And if you download (for a price or not) my remix macro file, which is just a set of instructions plus any original work I created, to use it you have to go out and buy or rent an original copy of The Matrix, too. Sales of the studio versions of remixed DVDs would probably go up, not down, a phenomenon that usually pleases Hollywood.

But Hollywood's objections are not about copyright infringement. Hollywood isn't claiming any direct harm to its bottom line from these macro technologies. The controversy is not about compensation. It's about something Hollywood sometimes values even more than that: control. Specifically, control over you.

ClearPlay brought this issue into focus in its legal brief:

ClearPlay: "...counterclaimants have no right to dictate all aspects of a consumer's experience of their work. For example, patrons of movie theaters have the right to leave a theater briefly to obtain popcorn during a motion picture's theatrical exhibition. Similarly, consumers have the right to mute, pause, stop or fast-forward motion picture DVDs played in the privacy of their own homes."

And thus we have the Directors Guild of America feeling compelled to clarify that it, in fact, does not "challenge the rights of patrons of movie theaters to leave the theater at any time." (Perhaps this will become the DGA's new motto.)

The lawsuit

The DGA was brought into this fray because the studios, lacking a piracy argument, do not have a peg leg to stand on. So the DGA decided to collaborate with the studios, its usual adversaries, and prepared its own lawsuit, with a basic argument the studios couldn't make themselves. The basis? The Lanham Act.

The Lanham Act is a federal statute concerning false advertising and trademark violation. The 16 directors who filed a claim along with the DGA assert that audiences are being tricked by CleanFlicks and the other DVD censorware companies into believing they are seeing the directors' original visions of the movies, when in fact they are altered versions to which the directors are opposed. Put another way, the DGA claims that people who sought out censored versions of movies are not aware that they are censored versions. A recent column by DGA President Martha Coolidge claims, contrary to all available evidence, that CleanFlicks and its cohorts "portray these [censored] versions as still being the work of their original directors."

I did a thorough search and could not find a single DVD censorware company website that claimed its products were the work of the studios or directors. In fact, they all--as one would expect--proclaim that their products alter the films from their original versions. It seems impossible that any consumer ordering a CleanFlicks version of a movie will be confused as to who took the butt cheeks out of it. Coolidge must know that her allegation of deception has no basis in fact. But she also knows, apparently, that without this false accusation, it will sound like there's no great crime being committed here.

The DGA's arguments go from deceptive to bizarre. DGA general counsel Robert Giolito told the San Francisco Chronicle, regarding the censorware companies, "These parties are offering, either through mechanical or digital means, an altered version of somebody else's work. They're not giving the consumer any choice of what to see." You have to hand it to Giolito. Apparently with a straight face, he claims that taking choices off the shelf somehow gives the consumer...more choice. At least, I think that's what he's trying to say. (For the record: Neither CleanFlicks nor any other company involved has ever tried to block the studios from distributing their own original work.)

The rhetoric coming from the film directors with regard to the boobie-tamperers isn't just confused, however. Because extreme control is such an emotional issue for directors and the film industry, the talk can get pretty harsh. "This is an abomination," thunders the DGA's Giolito. "I have more regard for music pirates. At least they respect the product."

And here's Steven Spielberg, quoted in Christianity Today:

Spielberg: "Every film represents a truth which is morally and exclusively the right of the writer and director. No one is authorized to impose their truth on top of ours despite how strongly they may disagree with it. Schindler's List and Saving Private Ryan have been cited as two of my most important contributions to history through cinema. The public has a choice to make—do they or do they not want to share in this experience. No one has the right to delete, re-shuffle, or in any way alter our films without our permission or the permission from the copyright holder."

While it is obvious that Spielberg is fired up and opposed to technology such as ClearPlay remote-control macros, what isn't apparent is exactly what argument he is advancing in the above statement. The first sentence says that "truth" is a "right." What does this mean? If the "truth" represented in the film is the director's "right," which I take to mean "untouchable property" (I'm guessing), does that mean that film critics who interpret films are outside the bounds of morality? Aren't they addressing this exclusive "truth" in the film? Moving on to the second sentence, do all film critics need to be "authorized" by the writer and director to "impose their truth" on top of the film's truth?

The next two sentences in his statement are similarly incoherent. Is Spielberg threatening to take his "important contributions to history through cinema" off the market if some purchasers of copies of these contributions plan to use remote-control macros while watching them at home? Does this kind of action by an individual at home threaten his exclusive "truth"? How?

The final sentence is perhaps the most chilling. A straightforward reading of "No one has the right to delete, re-shuffle, or in any way alter our films" suggests that Spielberg feels you can't even use your remote control at all--even manually. You don't have "the right." Obviously he can't stop us, but are we supposed to feel guilty about it if we hit the "skip" button during Saving Private Ryan? Are we to feel that we have wrongly "imposed" our "truth" on his important work?

The vitriolic and religious tone of Spielberg and other directors when they speak about this issue is remarkable, and it does what this kind of fire-breathing rhetoric usually does: It stops the conversation. One side says, "We want to apply remote-control macros to the DVDs we buy. What's wrong with that?" In response, the directors and studios scream, "Abomination!"

Well, it's hard to argue with that. But only because it isn't an argument.

Of course, no non-argument on a film-related matter would be complete without an off-the-wall scare-quote from MPAA President Jack Valenti, so here it is:

Valenti: "There are those who would revise a film for what they claim to be benign reasons. But there are others who would alter for pornographic and obscene reasons. To allow one, it would seem you must allow the other."

Wouldn't this be an argument against, say, videotape itself? You can use it for benign purposes, or you can use it for pornography. You could even, God forbid, use it for benign pornography. There are countless technologies with both benign and not-so-benign uses: Knives, cars, computers, motion-picture associations...

Party like it's 1984

All of these arguments--from Coolidge's misrepresentation about misrepresentation to Valenti's fixation on porn--are laughable, but they might make you want to cry when you realize what these powerful folks are implying about you and me: We don't really know what we want. Only Hollywood directors know what is best for us. The truth is "morally and exclusively" theirs. "No one has the right" to intepret that truth, at home or anywhere else.

And while at first glance this legal case might seem like a minor skirmish, Hollywood is essentially proposing a radical new idea here--a new kind of property. Today you can walk into, say, a WalMart, and in that WalMart are ten thousand pieces of merchandise that you can buy, take home, and use how you please. If you buy a T-shirt, you can take it home and use it as a dishrag. If you buy a butterknife, you can use it as a screwdriver. Neither WalMart nor the original manufacturer will follow you home and try to stop you. It's your stuff.

But under Hollywood's radical new proposal, there would now be an additional, significantly different category of merchandise: the DVD. When you buy a DVD, Hollywood says, you do not buy the right to take it home and do as you please with it. You have to look at your DVD in one particular way--the way the director says you should. Watching it outside these narrow restrictions, even though that action seems to harm nobody, actually does harm somebody--the director. Somehow, he is harmed even if he doesn't know you're doing it.

Is there any term more appropriate for this alleged harm than "thought crime"? Is there any term more appropriate for the control over your behavior that the directors want than "totalitarian"? The directors like to talk about their "moral rights" to make a movie as they see fit, because they know we'll agree. What they don't say explicitly, but what they do say with their legal actions, is that their "moral rights" extend to forcing you to watch a movie as they see fit. Always.

One would think that the dirty-word censors would be the anti-libertarians here--they usually are. But ClearPlay wants to offer its macros as one choice among many. It only wants to add another product to the market, not take any away.  Hollywood and the DGA, however, want to take all other choices away. Strangely enough, it's the purveyors of the filth who are playing the role of Big Brother this time.

It is stunning that some of the most important artists working today are willing to speak in a totalitarian voice. But when it comes to their movies, Hollywood's liberals are anything but liberal. They want civil liberties for everyone--except movie consumers, over whom they demand extreme control. Just put in that DVD, sit there and watch it, Hollywood says. We know what's good for you. Trust us.

(In the spirit of censorship, the final paragraph in the article above is the "clean" ending. I also created an alternate, R-rated ending for mature audiences. I call this technology FoulText. If you write your own alternate ending to this essay, I will sue the frickin' pants off you. Don't even think about it.)


Fired up about Hollywood's opposition to your freedom? Free Cinema recommends joining DigitalConsumer (or at least visiting the website). From there you can hit just one button to tell your representatives in Congress how much you value fair use. You could also send a letter to the DGA letting them know how disappointed you are that a group of artists would oppose your artistic freedom.


Princeton professor Edward W. Felten keeps an often fascinating blog called Freedom To Tinker.

Stories about the CleanFlicks legal battles have been published by Slate (also examines the European history of "moral rights"), ZDNet, and the San Francisco Chronicle.

Hollywood propaganda on this issue can be found at the DGA.

(Still image in main illustration taken from "Perversion for Profit," a public domain film at the Prelinger Archives. Bowdlerized Kate Winslet image from MovieMask.)

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