It’s a bit weird to be writing a post about lawsuits that occurred and were resolved years ago, especially since I am not the lawyer that Burt is. But the cases I am writing about had a lasting effect on my view of politics and its followers. And rather than try to stuff everything into a single post, I am going to write about the cases here, and then later why these cases were significant to me.

Conflict:

Around the turn of the century, there was a push towards cleaning up movies. The push did not come from studios in Hollywood, but rather entrepreneurs in (mostly) Utah (one of which, I should add, was named Huntsman). The two highest profile companies were ClearPlay and CleanFlicks. Both of these companies, as well as a third and fourth, were based out of the Beehive State, so I will occasionally refer to them as “the Utah companies.”

ClearPlay sold DVD players that would (with programming) skip over the more unsavory parts of movies. They would have editors go through, clean up the dirty parts, while being sure not to interfere with the telling of the story. They originally boasted 150 movies with a couple dozen being added each month. Concerned parents would buy the DVD through a regular outlet, download the filters, and then be able to watch movies with their kids (or just by themselves) without fear of seeing something they would rather not see. CleanFlicks was slightly different, having opened up VHS/DVD stores and sold the clean versions directly. There was a third company, whose name I cannot find but will call ATC, wherein you would send in the VHS or DVD you bought, which they would destroy, and send you back a clean version.

Thsi created a lot of consternation in Hollywood, and before long, lawsuits were filed by both the Directors Guild Association (DGA) and a little bit later the Motion Picture Association of America (MPAA). Both rested their initial claim on Freedom of Speech. They were being censored. Their artistic vision was being tampered with. There were various op-eds suggesting that there was a danger in allowing people to automatically avoid exposure to things they found unsettling because there is artistic power in being unsettled.

The counterargument to this was rather simple: People should be allowed not to watch movies that they don’t want to watch. Third parties should be allowed to assist them in circumventing this process. To suggest that people should not have the right to skip over parts of a movie they dislike is to argue that a FFW button is a censorious device. That they skip over a scene because it contains elements that they do not prefer to watch rather than that it is a portion of the movie that they find boring is immaterial. In addition, ClearPlay and ATC could argue that there was no likelihood of confusion of the edited product with the original product since both mechanisms had to be affirmatively sought. This was a bit more difficult an argument for CleanFlicks, because somebody could walk in to one of their stores without realizing that they were being sold a different product.

It became apparent rather early on that the latter argument was winning. Whatever this was, directors were not being silenced. The MPAA and DGA arguments then shifted towards copyright infringement. Namely, these companies were making a profit off the studios’ product, without the studios’ permission. The MPAA argued that these companies would make it unfairly difficult for the studios, who actually created the material, to offer any like service.

Resolution:

It was primarily on the copyright argument that they made some headway and won their suit against CleanFlicks. Because CleanFlicks had pre-emptively sued, their case was further along. However, before a decision could ultimately be made with ClearPlay, congress clarified the copyright rules expressly to allow what ClearPlay was doing. ClearPlay is still around. CleanFlicks lost their business model and went under. Trilogy Studios, who had initially tried to sell their ClearPlay-like product directly to the studios, never tried to sell their product directly to consumers. If I recall correctly, ATC folded early under the pressure of the lawsuits and never got a ruling one way or another.

My Thoughts

In the abstract, I actually sided with the Utah companies on this. Which is to say, I believe that they were providing a service and a separate product from the studios (namely, a player). The only one I hesitated to that about is CleanFlicks (which I will get to in a minute). While it was the case that ClearPlay was making money around the studios’ works, the same can be said for the makers of DVD players in general. DVD player producers have to pay all sorts of patents to make their product, but as far as I know they do not have to pay the studios themselves. It is considered mutually beneficial. I doubt that there is even a contract involved. There is, however, an argument that they waived any right to money when they produced a product specifically to be played in a DVD player. I am not sure why that waver would not also apply to a ClearPlay DVD player, however.

With CleanFlicks it is a bit different. They were selling a product with someone else’s trademark on it, that was mostly full of someone else’s material. And they were making a profit by doing so without any sort of contract with the studio. What I don’t fully know is the extent to which you have to have a contract with a studio in order to sell their product, so long as you paid full retail price for the original. I know this applies to individuals (they can’t prevent me from selling my old DVDs) and I’m not sure how it is different for corporations.

CleanFlicks’s major liability, however, should be the original artistic integrity argument. Since ClearPlay and ATC both required an affirmative step and both involve possessing or having possessed the original product, it can be safely assumed that the person who purchases CP’s or ATC’s services are aware that they are not getting the original product. Meanwhile, someone can stumble into CleanFlicks without really knowing what they’re getting. I’m not sure the degree of disclosure required, but that we even have to talk about it makes me understand where the studios are coming from. So I could go either way on this one.

I would support, I suppose, a disclosure requirement for ClearPlay and (if they still existed) ATC, not only to remind people that they are getting an altered product but also so that the clean-up editor gets appropriate credit for his work. As that is an artistic enterprise, I do believe such disclosure should be appropriate. But, as they often do, I felt that the studios simply went too far. Not only failing to offer a service that people clearly wanted, but preventing anyone else from doing so. And as far as the copyright argument goes, while yes ClearPlay gets money off the deal, not a penny is denied to the studios that is owed to the studios for the product they provided. Their argument, to me, has the stench of their common argument that they have a right to control what someone does with a product after they purchase it. I believe this is true insofar as preventing people from copying-and-distributing, but that’s about the extent of it.

While with ClearPlay and ATC, you had to affirmatively send

I (sort of) beat a mentally handicapped 7th grader in checkers… and I’m proud of myself! Mostly because he apparently plays a lot of checkers and I haven’t played in years (I had to remind myself of the rules). Of course, the kid didn’t realize that I beat him. I had more pieces left on the board than he did, but I overtook him at the last possible second with a double-jump that went from him having a 7-6 advantage to my having a 6-5 one. He went first, so fair is fair.

It was a half-day yesterday, because they are about to get “Easter Break” and so they were let out at 1:00 instead of 3:00. Better still, classes ended at 11:00, followed by an assembly and then a meal-party.

The assembly had various community leaders. The first was a high school teacher who basically said “Bullying is wrong, but when you get to high school don’t be the kind of jackass that is going to make kids want to bully you.” The third speaker was a state senator who used to teach at the school, who basically said that you are all beautiful creatures of god and that you need to act like it. The second speaker was perhaps the most interesting one. He was the owner of a couple local fast food franchises. His lecture was basically how to go about getting a job in the service sector. At my high school, they would have had a guy explaining how to get a job outside the service sector. But Redstone is Redstone.

The second speaker’s advice was relatively straightforward. Be respectful, don’t ever think that you’re better than the job you are applying for, and stuff like that. He tripped over a bit on one point, which is that you should avoid getting tattoos or piercings because you will be evaluated negatively on them. The trip-up was that he was essentially saying that books will be judged by their cover, which books aren’t supposed to be, but they are, and so while you shouldn’t judge a book by your cover, people – especially people that hire and people presumably including him – will most definitely judge you by your cover.

Another difference between the middle school and my own middle school is the assumption, in the latter case, that everyone there will go to college. Every mention of college in this assembly was tempered by “If that is what you want to do” or “if you think that is the right thing for you to do.” Because, well, a lot of the kids aren’t going to college. And I suppose they decided it’s unwise to pretend otherwise. Also, they might worry about getting angry calls from parents who didn’t go to college or something.

I plan to write more about special ed in the future, but the sort of low-capability classes such as the one I had yesterday are actually among the easiest. Not because the kids are easy – they have attitudes that run the gamut but all of them have… quirks – but rather because low-capability kids come with paraprofessionals. They’re far better equipped to run the class than I am. I take orders from them.

Paras in Arapaho are basically one-on-one tutors and supervisors. No college degree is required for the job. One of the paras works nights as a waitress. The cultural distinctions between paras and teachers is white collar versus blue doing very similar jobs. While the paras do not measure up in terms of academic accomplishment, they have a certain… toughness. Some of the toughest people I see within the school system. What they seem to lack in finesse they make up for in a willingness to say – and this is a quote – “Jesse, cut that shit out.”

(Which Jesse does. Immediately.)

We’ve been on the road for over 8 hours over the last two days. Tomorrow I have a sub-job at the middle school. Special ed again (this time the lower-functioning class). Last week I actually got a two-day high school gig that was not special ed. Both high school and not special ed are unusual, though I had the assignment due to the teacher being gone at the Special Olympics.

Not only was it not special ed, but I had a couple honors sections. They were not at all what I expected. Indeed, my most troublesome class of the day was an honors session. The fact that it was at the end of the day probably made them more antsy. Also, they were not given enough to do. Even so, a lot of these kids were not what I would have expected. There was a delightfully ditzy cheerleader type. There were two girls with piercings out the everywhere.

I actually knew some of the honors kids from teaching middle school last year (it was a freshman class). One girl thought it was creepy that I recognized her. I actually only recognized her for two reasons: First, because she used to live back in the Deseretian town where I worked (Mocum). Second, she was annoying as hell. I had another that I had noted looked really young for her age last year who this year looks… not young for her age anymore (though she doesn’t appear to have made the mental transition yet).

The non-honors sections I had were generally well-behaved, but not very productive. It’s their last semester. Most are probably not going on to college. They could barely care less. I had a class of ten and five showed up the first day and six the second.

Back to the honors sections. Someone in last period asked if they were the worst class of the day. I said they were, which had them really surprised because usually third period is worst. Third period was fine. They remembered that Codey wasn’t there. Surprised, I asked if Codey was somehow a problem student. They all said yes. I was surprised because Codey is the regular teacher’s son.

If you are so inclined, participate in this.

Alexis Madrigal argues that frictionless sharing could undermine our legal right to privacy:

You are no doubt familiar, now, with Facebook’s concept of “frictionless sharing.” You enable a social reader like the one from the Washington Post and the next time you read an article on the site, news of that textual encounter is broadcast to your Facebook friends. {…}

In Fourth Amendment cases, the Supreme Court has to determine what “a reasonable expectation of privacy” actually is. If you do have that expectation of privacy, then the government needs a warrant to look into your communications. So, if you go out in the public street and shout to the world that you committed a crime, the government does not need a warrant to use that communication. However, if you were to send a sealed letter to a friend containing the same information, you would have a reasonable expectation that the government would not be reading that note.

Because we’re talking about expectations, we have to think about what cultural norms are and the actions that signal what norms are in play. For example, Kaminski notes, “In the 1967 seminal Supreme Court case on wiretapping, Katz v. United States, Katz placed a phone call in a public phone booth with the door closed, and was found to have a reasonable expectation of privacy in the phone call, so a warrant was required for wiretapping the phone.” Closing the door meant he expected the call to be private.

And the problem with frictionless sharing is that it may leave the door open for the government to collect and use information without a warrant.

“Justice Alito recently contemplated that we may be moving toward a world in which so many people share information with so many friends that social norms no longer indicate a reasonable expectation of privacy in that information,” Kaminski writes. “Without a reasonable expectation of privacy, there will be no warrant requirement for law enforcement to obtain that information. This analysis is troubling; sharing information with your friends should not mean that you expect it to be shared with law enforcement.”

I was skeptical of the headline, but reading the article it actually made sense. It actually makes me wonder, more broadly, if the perception of young people wanting to share everything won’t change privacy expectations with or without frictionless sharing.

I consider frictionless sharing to be, on the whole, a negative thing regardless of its fourth amendment implications. I mean, I keep (albeit with poor maintenance) a list of what I am reading, watching, and listening to on this site. But I choose what to put up there. I put up a thing for Fringe, or maybe a season of Fringe. Frictionless sharing can mean, basically, that every time I watch an episode of Fringe it gets posted. Or every time I listen to something on Spotify, you get to find out what it is. I don’t care if you know, but I don’t have any reason to believe you would want to know. And if I think you might, I’ll write a post on it.

The same goes for articles that I read. If I find something interesting, I’ll pass it along. But just because I am reading something doesn’t mean that I think you will be interested in reading it as well. The same applies to Facebook friends and such. The internet as a whole has a signal-to-noise problem, and this creates a whole lot more signal.

I am presently reading Melissa F. Miller’s Irreparable Harm. I didn’t buy it, but rather “checked it out” from Amazon Prime’s free check-out program. The way that it works is that you can check out one book a month. You can keep it for more than a month, if you choose, but but there’s still the maximum of one.

Having a maximum is fair. They want us to buy books and if checking-out becomes too easy, we can do that instead of buying. I totally get that. Here is what I don’t get, though: they should give us more incentive to buy the book. If, for instance, they said “Hey, buy the book that you have checked out and you can check out another book.” It’s the perfect try-before-you-buy. The more you buy, the more you can try. Now, I can take the $4 it would cost to buy Irreparable Harm and buy some other book for that amount, and in the end I will have read two books and purchased one, but I actually think it would be a better to encourage people to buy books that have been checked out. Among other things, it would encourage publishers to allow people to check out their books.

There may be a broader idea here where for every $10 you spend on ebooks, you can check out one for free. That might be an even better idea. I mean, I could see some potential hazard with someone who buys a lot of books reading a lot of other books for free. I’m not sure that giving too much to people who are spending a lot of money is a bad idea, exactly, but even if I am wrong about that, I am still struggling to see a downside to allowing me to get an extra rental by buying the book I just checked out. The author wins. I win. Amazon wins. Who loses?