Best of 2005: Cleaning Up, or Getting Their Clocks Cleaned?

Posted on August 19, 2005.

I stumbled on this article in Slate and it seemed to contradict my point in one of my favorite posts. On reflection I realized that actually the two pieces actually harmonize quite well.


It did make me wonder whatever happened in the ClearPlay litigation. As the company’s site describes it,

ClearPlay has developed a unique DVD parental control technology that enables users to skip and mute segments of movies that contain graphic violence, nudity, and profanity.The seven major Hollywood movie studios, along with fifteen prominent film directors and the Directors Guild of America have joined their collective resources to sue ClearPlay in an attempt to strip American families from their right to use ClearPlay enhanced parental controls within the privacy of their homes.

Oddly enough, the timeline of the court case on that site ends in 2004. But judging from the firm’s selection of news stories on another page of its website, the company evidently anticipated that the Family Entertainment and Copyright Act may have made the litigation irrelevant.

Not that ClearPlay doesn’t have other problems — like a patent suit that’s scaring off some partners. While it’s one thing to edit the sludge that oozes out of Hollywood, editing your own press releases and website — which make no mention of the progress of either the copyright litigation or the patent claims — seem like less of a great idea in the long run.

So I did a little research on PACER. Turns out that the patent litigation is going full-bore, pay- for- your- lawyers’- kids’- braces,- college- and- medical- school- tuition patent litigation in the Southern District of Florida — so much so that not only the ClearPlay website but the Nissim website fall far short of even alluding to the whole story. (See the extended entry for the docket report — it doesn’t format so great but you’ll get the point down toward the bottom, if you like this sort of thing.) Nissim is represented by my old friend (from a case we worked on together — not that he’d remember) Steven Pokotilow; I don’t know the ClearPlay lawyers.

And the copyright litigation? Turns out it was dismissed for want of subject matter jurisdiction in light of the new legislation just two days ago, the court declining to issue an advisory opinion (essentially what ClearPlay was requesting), as federal courts are wont to decline to do.

Looks like ClearPlay was hoping for a little icing on its copyright cake, and maybe some attorneys’ fees thrown in, in the copyright litigation (in the U.S. District of Colorado) considering what looks like a shellacking it seems to be receiving in the Florida patent case. But that was not to be.

As for me, I support their project, separate and apart from the legal issues — the copyright issue now being moot (and my heart does not bleed for copyright owners here!), and the patent issue looking like a bloody mess.

And it’s not all bad for ClearPlay in the patent department. As long as the legal fees don’t destroy the viability of the business, ClearPlay could be a company to watch.

UPDATE: I hate that last line, but endings are really the hard part. Anyone who can suggest a better one is invited to submit it.

LATTER-DAY UPDATE:  Per Ali SternbergClearPlay ultimately stuck it out.  It didn’t work out nearly as well regarding a similar company, blogged about here (and discussed in Ali’s article).

By Ron Coleman

I write this blog.