That's the real question: before 2004 they could have done anything they want with it, but did they give Lucas some kind of control in exchange for Lucas paying for the restoration and the new effects? (a pretty expensive proposition for a fairly obscure movie). Warner didn't include the theatrical versions of Big Red One or Pat Garrett when they did those new versions even though they could have, so maybe there's hope. (that the absence of both cuts on the dvd wasn't necessarily an indication of Lucas control)