This article, by Ashley C. Kerns, appeared in the Loyola of Los Angeles Entertainment Law Review. Kerns, an active attorney in Los Angeles, argues that DVD ‘filters’ like ClearPlay should be available to consumers because the technology satisfied the requirements outlined by the four factors for fair use, and because of consumer rights. ClearPlay is not designed for commercial use; instead, it is for viewers watching films in the privacy of their own home. Kerns then argues that because the technology allows viewers to choose categories of offensive material they do not wish to view (such as “vain references to diety”), rather than simply editing out all offensive content, ClearPlay is rarely taking the heart of the work. Often, she explains, it only removes a few minutes of a film. The effect on the market is irrelevant, according to Kerns, because ClearPlay still requires the viewer to purchase or rent the film and profit is therefore not being taken from the filmmakers. Lastly, Kerns argues that consumers have the right to view videos they have lawfully purchased in their own homes as they please.

This article complicates my thesis in that it lays out a clear argument for ClearPlay as a lawful technology under the definition of fair use. Kerns even bypasses completely the idea of an artist’s moral rights—perhaps the strongest argument against ClearPlay—by explaining that the choppy film that the editing software creates is a way in which ClearPlay transforms its source material and therefore more strongly classifies the machine as fair use. However, while that assessment is an interesting one, Kerns’s definition of ‘transformation’ here is troubling. If a film’s expression is changed by choppy editing—for example, if a scene transition no longer makes sense because its ending is altered by ClearPlay—then the choppiness transforms the work not simply by removing lewd content, but by adding a new layer of commentary and meaning through editing. This is certainly not what ClearPlay or Kerns intended when suggesting that the technology is ‘transformative,’ but in order for ClearPlay to claim fair use, it assumes responsibility for this transformation. Furthermore, if ClearPlay is only removing a few minutes of violence from the film, is it not then using the heart of the work, and therefore not fair use?

Darcy Williams, a ligitation and appeals attorney in Allentown, Pennsylvania, argues ClearPlay is not a violation of the Lanham Act, which protects a director’s reputation, because it does not make permanent edits to films. Furthermore, he states that consumer rights protect the technology. The way in which ClearPlay edits films, which does not create permanent changes to the film but instead automates the function of the remote control, means that ClearPlay does not create a new or derivative work and therefore the director’s reputation is not affected. And because viewer already have the ability to fast-forward or mute a film, ClearPlay is already within the rights of the consumer. Williams even suggests that part of the fault lies with the movie studios for not making edited versions of the films themselves. Finally, Williams suggests that despite ClearPlay having a solid case against copyright infringement, they should consider putting a notification in their software that the directors have not edited the films.

   This is another article that complicates my thesis, as Williams addresses directly the fact that directors may consider ClearPlay damaging to their reputations but comes down on the side of the consumer. However, even if ClearPlay is not making permanent edits to the physical film, it is still making changes to the way in which viewers experience the film. If a viewer grew up watching When Harry Met Sally without any of the sexual references, the director’s reputation would, in that viewer’s mind, be different from what it truly is. Furthermore, if ClearPlay is not making permanent edits to the film, is it really transforming the film? Williams’s suggestion that ClearPlay add a notification to its product is a good one—one that implies that without this warning, ClearPlay currently may not be fair use.