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The House Judiciary Committee recently approved the “Family Movie Act,” a bill that would immunize some manufacturers and retailers of movie-filtering technology from trademark and copyright worries. The bill was prompted by a lawsuit, pending in U.S. district court in Colorado since 2002, that raises novel questions of trademark and copyright law. Huntsman v. Soderbergh, No. 02-1662, is a tale of strife and woe that features Clean Flicks of Colorado, Family Shield Technologies and other movie-filtering companies as the upholders of family values. Time Warner Entertainment Co., Paramount Pictures Corp. and other studios star as the aggrieved copyright holders. Finally, the Directors Guild of America and several individual directors — including Steven Soderbergh, Robert Altman and Martin Scorsese — put in cameos as artists whose trademark-protected right to the integrity of their works has been violated. TECHNOLOGY VS. CUT-AND-PASTE At issue are two types of filtering, referred to by lawyers in the case as “technology” and “cut-and-paste.” Family Shield of Greeley, Colo., is one of the “technology” companies. The firm sells software that runs concurrently with DVDs, videos and even television programs, according to its attorney, D.J. Poyfair of Denver’s Shughart Thomson & Kilroy. The consumer chooses among eight categories of filters or “shields” to mute or skip past nudity, strong language, immodesty and the like, he said. Poyfair compared the technology to a parent putting a hand over the eyes of a child during objectionable moments, noting that the source DVD or video is not altered and the edited version is never reduced to a fixed form. The parent company of Clean Flicks of Colorado, Clean Flicks LLC, a cut-and-paste company, buys videos and DVDs in bulk and makes a like number of edited copies (by recording over the videos or, in the case of DVDs, making a separate copy and then rendering the original inoperable). The edited versions are then distributed to the company’s retail outlets for rental to members, according to Scott J. Mikulecky of the Colorado Springs, Colo., office of Denver’s Sherman & Howard, who represents one of those retail companies, Clean Flicks of Colorado. Mikulecky acknowledged that cut-and-paste companies will have a tougher time prevailing because they make a permanent edited version. But he likened Clean Flick’s business model to an individual who buys a movie, alters it (as is his right under the “fair use” doctrine), and then lends it to his neighbors. He said that the company generates only one edited version for every original version it buys and that it makes clear that the movies are edited. Ernest J. Getto, who represents the guild and the individual directors, took issue with the idea that the technology companies promote consumer choice. Such companies are “making choices for the consumer,” he said, adding that the edited versions could thus not be considered a consumer’s fair use. He also dismissed the idea that the cut-and-paste companies resembled cooperative lending libraries. He said that the directors’ trademark claim rested on a 1976 decision by the 2nd U.S. Circuit Court of Appeals, Gilliam v. ABC Inc., 538 F.2d 14. The court found that the trademark rights of the Monty Python comedy team were violated when ABC television made deep cuts before airing their program, Getto said. He acknowledged that studios routinely make available edited versions of their films for airline and television showings, but said that directors have a say in how the cuts will be made. He said the filtering companies have never approached the studios for permissions or to pay licensing fees. Jonathan Zavin of the New York office of Los Angeles’ Loeb & Loeb said that the studios, which he represents, have copyright claims against both types of filtering companies, as well as trademark claims against the cut-and-paste companies, whose edited versions carry studio logos. None of the attorneys cared to speculate on the prospects for passage of the Family Movie Act. The Judiciary Committee press office did not return calls seeking comment.

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