November 12, 2002
"There Shouldn't Be a Remote Control on How We Watch DVDs"--A Commentary by Ernest Miller
(The following essay originally appeared in the November 11, 2002, edition of the Los Angeles Times.)
There Shouldn't Be a Remote Control on How We Watch DVDs
By Ernest Miller, fellow of the Information Society Project at YLS
What would you think if you had to get permission from the architect before you could have your house painted another color? How would you feel if the photographer had to agree with your selection of a frame for a favorite photograph? What if the director of a movie could decide when it was OK for you to fast-forward through a DVD you had rented?
Sounds crazy? The last example is now the crux of a lawsuit brought by the Directors Guild of America against a number of companies that make DVD-playing software.
What has the DGA up in arms is the emergence of new technology that controls the playback of DVDs so that they can be enhanced with additional material, such as audio commentary by a film historian, or allows parents to filter out content they feel is inappropriate for their children.
In the words of DGA President Martha Coolidge: "They are taking films and using technology to alter them without permission from either their directors or their copyright holders."
But Coolidge's argument doesn't stand up to scrutiny. Unlike the technology with CleanFlicks, which permanently alters the videotape, technology from companies such as ClearPlay, Movie Mask and Family Shield requires the viewer to have a legitimately purchased or rented DVD. The home viewer then plays the movie while simultaneously running the software, which instructs the DVD player when, where and for how long to skip specific visuals or mute selected audio in the film.
The software does not -- nor can it -- alter a single second of the rented or purchased disc. It only alters the playback of that DVD. Rented disks get returned in exactly the same condition as when customers received them.
What the DGA is claiming is not the right to prevent alteration of a work, but the right to control how an individual watches a DVD in the privacy of his or her own home. What the DGA is saying is that you either watch a film its way or not at all. What the DGA wants to take away is consumer choice.
The DGA argues that consumers already have a choice: They can choose whether to buy or rent a film. But directors also have a choice. If they don't want people to watch movies in ways they don't approve, they don't have to sell or rent DVDs to the public. Directors should have a right to control what they release to the public. But the directors' right to control content ends once they sell the DVD.
When you buy a book you can highlight portions or rearrange pages. A friend can recommend that you rip out the boring chapters and read only the climax, and neither the author nor the publisher has a right to stop you. Why should movies on DVD be any different?
When a DVD is legitimately purchased or rented, consumers should have the right to play it with software that enhances their personal viewing experience. Parents should have the right to skip a second or two of gratuitous nudity in an otherwise family-friendly film. Film buffs should have the right to watch a film with an alternative audio commentary by an expert such as Roger Ebert, without permanently altering the disc.
Ultimately, the issue is one of control. Technology has given consumers the ability to control how they watch movies in their homes, and the DGA wants to take that control away by banning the technology. Even if you don't have kids, aren't much of a film buff or love graphic movies, do you really want Hollywood dictating how you view DVDs in your own home?
Ernest Miller is a fellow of the Information Society Project at Yale Law School and the lead editor for LawMeme (www.lawmeme.org), the school's Web log on technology law and policy.