2004 UCLA J.L. & Tech. Notes 13

The ClearPlay Case: When Does Copyright Protection Go Too Far?
by Allison E. Twist

At what point does a copyright-created monopoly created actually inhibit progress? Granted by Congress to “promote the useful arts and sciences,” copyrights do so by giving an exclusive but limited right of use to the creator of an artistic work or an inventor of a new product.1 The temporary monopoly provides economic incentive for people to create, thereby increasing the pace of technological innovation in society. But sometimes, copyrights can slow progress as well.

The case of Huntsman v. Soderbergh may be an example (also referred to as “The ClearPlay Case”).2 The case involves eleven companies that use various forms of technology to block or edit offensive content from videotapes or DVDs, including violence, profanity, sexual content and nudity. The companies filed a lawsuit in August 2002 against a group of prominent Hollywood directors, asking a Colorado federal district court to declare that their work is not an infringement of the directors’ copyrights. Several major movie studios soon joined the directors and filed counterclaims.

The technology companies involved in the lawsuit fall into one of two broad categories. Companies in the first group physically cut out the offensive parts of movies, then copy the tapes into new edited versions. They then rent the edited tapes to consumers at specialty video stores. The second group of companies uses technology to create a more sophisticated solution that leaves the original movie intact.

ClearPlay is a member of this second group. To watch a ClearPlay film, the consumer must purchase a proprietary application that is installed on his computer hard drive. The consumer must also go to ClearPlay’s website and download special “filters” or software codes that are keyed to the time sequences encoded in every DVD. When the consumers rent or purchase a legitimate DVD whose filter they have also downloaded, the application reads the filter and tells the DVD player when an offensive incident is about to happen. The application then sends a signal to the DVD player to skip forward through that moment, thus editing out the offensive material while leaving the original artistic work unaltered.3

The directors and studios argue that the software filters are derivative works that infringe upon their exclusive right to make or license any other creations that are based on their preexisting copyrighted work. Whether or not the court will find ClearPlay’s solution to be an infringing derivative work depends largely on its determination of whether a derivative work must exist in “fixed” form, and if the software filters are such a fixed work.4

While the technical question is an important one in the digital age, the arguments at the core of the infringement debate are even more compelling. The directors and studios contend that no one else should be able to profit by editing the films that they have invested the time and money to create. After all, it is this type of artistic expression that copyright law is designed to protect.

At the same time, ClearPlay's activities do advance the other goal of copyright law -- promoting innovation. By harnessing a new technology and using it to open new markets for movies, ClearPlay and other companies facilitate individual choice without cutting into studios’ and directors’ revenues.

The ClearPlay case suggests that even if Hollywood wins the current battle, it may lose the war. Studios routinely release sanitized versions of their films to airlines and television networks, undercutting the argument that there is only one artistically acceptable version of a movie. Precedent has shown that embracing new technologies can further innovation in the eyes of the court and increase Hollywood’s profits at the same time. One hopes that Hollywood will realize that history is not on its side.



1. U.S. Const., Art. I, § 8
2. ClearPlay, Inc. is one of the plaintiffs in the original action. Other plaintiffs include CleanFlicks, Trilogy Studios, and Family Shield Technologies.
3. The Player Control Parties' Corrected Opening Brief In Support Of Their Motion For Summary Judgment at 11, Huntsman v. Soderbergh, at www.eff.org/Legal/Cases/Huntsman_v_Soderbergh/, (last visited Mar. 19, 2004).
4. Motion Picture Studio Defendants’ Response Brief In Opposition To ClearPlay, Inc.’s, Trilogy Studios, Inc.’s, And Family Shield Technologies, LLC’s Motion For Summary Judgment at 22-23, Huntsman v. Soderbergh, at www.eff.org/Legal/Cases/Huntsman_v_Soderbergh/, (last visited Mar. 19, 2004).







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