A Non-Copyright Infringing Remix Method?

I originally thought about this when I became aware of the Phantom Edit. I was disappointed that it was only possible to get the edit via filesharing, and that often only poor copies were available.

Now, the Edit, and other such remixes are clearly derivative works, but it seems to me that it’s possible to get around restrictions on such things by not distributing any of the derived work, but instead only distributing the logic used to create the derivation.

Imagine that we had a media player that could take a set of media files as input along with a file of instructions. Instead of playing the media file all the way through, the instructions could play things out of order. It might splice in audio from a different source, or re-mix the volume for certain scenes. It might play some scenes more than once, or others not at all.

One of the benefits of this is that the instructions file could probably be quite small, and could be distributed openly. It could also be more robust to quality changes. As long as a new copy of the movie in a higher resolution form had the same timestamps, you could watch the HD version of your edit as soon as you upgraded your source.

I think that such a thing has non-infringing uses. In fact, from my understanding of copyright, it doesn’t even have any infringing uses. It doesn’t actually make a copy of anything; it just plays a copy that you already have out of order. It’s not illegal to rewind or skip scenes in a movie, so I don’t think it should be illegal to automate that process.

I see that there are already Censoring DVD players on the market, but I seem to recall they had some legal challenges. I’d imagine that the legal hurdle might be a bit harder to climb when your purpose was letting anyone re-edit and share their edits to a major movie, rather than parents trying to keep their children from seeing boobs. But, is there a legitimate legal principle that this could be challenged on?

This is essentially what companies like CleanFlicks do. And a year or two ago Congress enacted a statute explicitly defining this as non-infringing.

It was the Family Movie Act of 2005, which was enacted as part of the Family and Entertainment Copyright Act of 2005. It creates this exemption:

Before this act was created, copyright owners had a good argument that the device was essentially creating a derivative work, as you say, which requires authorization, generally a license (as for “airplane” and “broadcast” cuts of movies). The flip side argument was that it did not create a derivative work because there was no literal fixation of a different version.

The argument was never worked through in court because Congress was scared of looking soft on boobies.

The act really only applies to movie edits to remove adult content, though. For nearly everything else, there is the Formgen case. (good read)

It’s analagous to the OP; a set of instructions is given to display copyrighted material in a different order. It’s pretty established as good law, so I imagine your movie editor instruction file (as opposed to the software itself!) would be infringing, unless you were able to include it under the family movie act.

My guess is that a judge would not look favorably upon the argument that removing Jar-Jar is protecting the family…