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Week Ending April 22, 2005
S. 167 to provide for the protection of intellectual property rights, and for other purposes.
BRIEF
This revitalized version of a bill that did not make it to law last year focuses on two areas of copyright infringement.
The bill would criminalize the act of using a video camera to copy a motion picture while in a movie theatre. Punishment could run to three years in jail. Possession of the camera in the theatre is not a crime in and of itself.
The bill would also prohibit the “…distribution of a computer program, musical work, motion picture or other audiovisual work or sound recording being prepared for commercial distribution but not yet distributed to the market if the distributor knew the product was destined to market.
The Register of Copyrights could establish pre-registration for a work in preparation.
The US Sentencing Commission is directed to review and amend if necessary sentencing guidelines applicable to infringements to determine if the punishment is adequate to prevent the crime.
The bill would exempt from claims of infringement making limited portions of audio or video content of a motion picture to be shown in a private household providing no fixed copy of the picture is made. Technology used to edit the films would also be exempt. Such technology and services are available to household that want reference to God and foul language that offends them.
The National Film Preservation Board is reauthorized and with the Librarian of Congress would make National Registry Films more accessible fro research and education and preserve US heritage films.
Sponsor: Senator Orrin G. Hatch (R-UT)
Vote: Passed Senate by Unanimous Consent (April 117, 2005) (Signed by President Bush as Public Law 109-9)
Cost to the taxpayers: CBO reports, "S. 167 would make several changes to current law regarding copyrighted works. The bill would specifically authorize the appropriation of $530,000 each year over the 2005-2009 period to the Library of Congress for preserving films in the Library's collection. Assuming appropriation of the specified amounts, CBO estimates that implementing the bill would have no significant cost in 2005 and would cost nearly $3 million over the 2005-2009 period. Enacting the bill would not have a significant effect on revenues or direct spending."
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MORE INFORMATION
DISSENTING VIEWS
Regardless of the outcome of the pending litigation, this legislation should not be brought before the House because it is unnecessary. Its supposed rationale is to make it easier for parents and children to avoid watching motion pictures with undesired content, but parents and children already have such options.
At the outset, there is an obvious marketplace solution to undesired content in that consumers can merely elect not to view it. As the Register of Copyrights testified at a hearing on the issue of whether a legislative fix was necessary:
I cannot accept the proposition that not to permit parents to use such products means that they are somehow forced to expose their children (or themselves) to unwanted depictions of violence, sex and profanity. There is an obvious choice--one which any parent can and should make: don't let your children watch a movie unless you approve of the content of the entire movie. 14
[Footnote]
[Footnote 14: H.R. 4586 Hearing at 9 (written statement of Marybeth Peters) (emphasis added).]
The motion picture industry has even enhanced the ability of consumers to exercise this choice. For decades and on a voluntary basis, it has implemented a rating system for its products that indicates the level of sexual or violent content and the target audience age. 15
[Footnote] Each and every major motion picture released in theaters or on DVD or VHS bears such a rating. Such ratings effectively enable parents to steer their children away from movies they consider inappropriate.
[Footnote 15: Motion Picture Ass'n of America, Movie Rating System Celebrates 34th Anniversary with Overwhelming Parental Support (Oct. 31, 2002) (press release). The industry has five rating categories: G for General Audiences, PG for Parental Guidance Suggested, PG-13 for Parental Caution Suggested for children under 13, R for Restricted (parent or guardian required for children under 17), and NC-17 for No Children 17 and under admitted.]
Most importantly, the film rating system enable parents to identify movies that they consider appropriate for their children, and the industry has acted to make this choice meaningful. The industry annually releases dozens of films geared toward audiences who do not wish to see sexual, violent, or profane content. 16
[Footnote] As a result, it is clear that the movie industry provides parents with abundant opportunity to find films they will consider appropriate for their children. The movie industry has, therefore, already met the request of a Family Movie Act supporter who looked forward to a day when `the industry will get around to issue us age-appropriate products.' 17
[Footnote]
[Footnote 16: In 1999, filmmakers released 14 G-rated and 24 PG-rated major motion pictures. In 2000, there were 16 G-rated and 27 PG-rated films. In 2001, 8 G-rated and 27 PG-rated movies were released. In 2002, 12 G-rated and 50 PG-rated pictures were distributed. Finally, in 2003, 11 G-rated and 34 PG-rated motion pictures were released.]
[Footnote 17: H.R. 4586 Hearing at 15 (statement of Amitai Etzioni, Founder and Director, The Institute for Communitarian Policy Studies, George Washington University).]
While some of the bill's supporters say these choices are meaningless on the grounds that the entertainment industry markets violent and sexual content to youth, 18
[Footnote] that claim is false according to the most recent and objective report. The Federal Trade Commission conducted the most recent study on this issue and concluded the following:
[Footnote 18: May 20, 2004 Hearing at 20 (statement of Jeff J. McIntyre, Senior Legislative and Federal Affairs Officer, American Psychological Ass'n).]
On the whole, the motion picture industry has continued to comply with its pledge not to specifically target children under 17 when advertising films rated R for violence. In addition, the studios generally are providing clear and conspicuous ratings and rating information in advertisements for their R- and PG-13 rated films. 19
[Footnote]
[Footnote 19: FEDERAL TRADE COMM'N, MARKETING VIOLENT ENTERTAINMENT TO CHILDREN: A FOURTH FOLLOW-UP REVIEW OF INDUSTRY PRACTICES IN THE MOTION PICTURE, MUSIC RECORDING & ELECTRONIC GAME INDUSTRIES 10 (July 2004).]
The industry is, therefore, doing its part to keep undesired content away from children.
The facts demonstrate that parents have the information and tools necessary to make and enforce informed choices about the media their children experience and have plenty of wholesome media alternatives to offer their children.
The Family Movie Act would lead to editing that is inconsistent, overbroad, and counterproductive. First, ClearPlay does not screen out the content it purportedly is designed to filter. The New York Times found that ClearPlay's editing does not conform to its own standards:
For starters, its editors are wildly inconsistent. They duly mute every `Oh my God,' `You bastard,' and `We're gonna have a helluva time' (meaning sex). But they leave intact various examples of crude teen slang and a term for the male anatomy.
In `Pirates of the Caribbean,' `God-forsaken island' is bleeped, but `heathen gods' slips through. 20
[Footnote]
[Footnote 20: David Pogue, Add `Cut' and `Bleep' to a DVD's Options, N.Y. Times, May 27, 2004, at G1.]
In this regard, ClearPlay is seemingly ineffective, and the legislation would be, as well.
Second, the legislation is overbroad and would go beyond its allegedly intended effects of legalizing tools for sanitizing movies of sex, violence, and profanity. In fact, title II would legalize a far wider and less desirable universe of filters for profit than its sponsors have disclosed. Filters could be based on social, political, and professional prejudices and could edit more than just movies.
For instance, because the bill is not explicitly limited to the deletion of sex, violence, and profanity, it would legalize socially-undesirable editing, such as:
̀A filter that edits out racial conflict between law enforcement and minorities in The Hurricane, conflict that sets the context for how the minorities later react to the police; 21
[Footnote]
[Footnote 21: ClearPlay actually has made such edits. `In its alterations of the film, ClearPlay chooses to omit the racist language [used by white police officers against a young Rubin Carter] that is integral to our understanding of the story. . . . ClearPlay skips these lines in full, choosing to fast-forward its version of the movie to a later part of the interrogation scene. However, it is via this racist and threatening language that the audience connects with the intimidation that the young Carter must feel and the racism he is encountering at the very center of law enforcement.' Rosen Decl., supra note 4, at 6-7.]
̀A filter that skips over the nude scenes from Schindler's List, scenes that are critical to conveying the debasement and dehumanization suffered by concentration camp prisoners;
̀A filter that strips Jungle Fever of scenes showing interracial romance and leaves only those scenes depicting interracial conflict; and
̀A filter marketed by Holocaust revisionists that removes from World War II documentaries any footage of concentration camps.
The legislation also would immunize products that filter political or business content based on the opinions of the creator, including:
̀A filter that skips over political advertisements contrary to the positions of the developer's beliefs;
̀A filter that cleanses news stories, such as by editing out comments in support of or in opposition to government policies; and
̀A filter that deletes television stories either helpful to the filter developer's competitor or critical of the developer's corporate parent.
We would hope that none of the bill's proponents would condone such malicious editing. Unfortunately, at last year's full Committee markup of similar legislation, the sponsors rejected an effort to limit the proposal to its purported scope of profane, sexual, and violent content. 22
[Footnote] If enacted, title II could lead to the editing of artistic works based upon racial, religious, social, political, and business biases.
[Footnote 22: See Markup of H.R. 4586 Before the House Comm. on the Judiciary, 108th Cong., 2d Sess. (July 21, 2004) (amendment offered by Rep. Adam Schiff (D-CA) to limit editing to profane, sexual, and violent content) [hereinafter H.R. 4586 Markup]. The amendment was defeated by voice vote. Id.]
Finally, the legislation could lead to increased violence and sexual content in entertainment. Just as title II allows nudity to be edited out, it allows everything except nudity to be deleted. This concern is not merely hypothetical. Nissim Corporation has patented a technology called CustomPlay that, among other things, enables viewers of pornographic movies to filter out the non-pornographic scenes and `enhance' the adult-viewing experience. 23
[Footnote]
[Footnote 23: Using CustomPlay, `[a]n adult can play a version of an adult video that seamlessly excludes content inconsistent with the viewer's adult content preferences, and that is presented at a level of explicitness preferred by the adult. Adult content categories are standardized and are organized into five groups Who, What, Camera, Position, and Fetish.' CustomPlay, Content Preferences (visited Aug. 24, 2004) >.]
Because title II only protects technology developers like ClearPlay from liability for copyright and trademark infringement, Nissim may cause the bill to backfire on its sponsors. Nissim has sued ClearPlay for patent infringement, claiming to have a patent on ClearPlay-type film-editing technology. 24
[Footnote] If Nissim's claims are valid, then only Nissim could distribute such film-editing software. 25
[Footnote] Thus, contrary to its stated purpose, the Family Movie Act could succeed in legalizing only Nissim's technology, which enables users to increase the proportion of sex or violence in a movie. 26
[Footnote]
[Footnote 24: Nissim Corp. v. ClearPlay, No. 04-21140 (S.D. Fla. filed May 13, 2004).]
[Footnote 25: In response to a cease-and-desist letter from Nissim, a manufacturer of DVD players, Thomson, pulled ClearPlay-enabled players from the retail market.]
[Footnote 26: In analyzing the overbreadth of the legislation, we also note that it does not legalize technology that would skip over advertisements in broadcast television. The Copyright Office has stated that the bill would not permit commercial ad skipping on the grounds that each ad, in and of itself, would be a separate `motion picture;' skipping the entirety of an ad would go beyond the extent of the bill's authority of making `limited portions imperceptible.' See Letter from Marybeth Peters, Register of Copyrights, to the Honorable F. James Sensenbrenner, Jr., and the Honorable Lamar Smith (Nov. 15, 2004).]
Moreover, the legislation's original sponsor, Sen. Orrin Hatch (R-UT), further noted in his statement introducing the bill:
An advertisement, under the Copyright Act, is itself a `motion picture,' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase `limited portions' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. 151 CONG. REC. S495 (daily ed. Jan. 25, 2005) (statement of Sen. Hatch).
The problems with this legislation are compounded by the fact that it violates principles of artistic freedom and expression. The concept of protecting artistic freedom is well recognized. 27
[Footnote] The National Endowment for the Arts states `[a]rtistic work and freedom of expression are a vital part of any democratic society.' 28
[Footnote] For this reason, the NEA seeks to preserve works of art, 29
[Footnote] and an important part of preservation is to ensure artists are involved in how their creations are portrayed.
[Footnote 27: SAM RICKETSON, THE BERNE CONVENTION: 1886-1986 456 (1997) (`Any author, whether he writes, paints, or composes, embodies some part of himself--his thoughts, ideas, sentiments and feelings--in his work, and this gives rise to an interest as deserving of protection as any of the other personal interests protected by the institutions of positive law, such as reputation, bodily integrity, and confidences. The interest in question here relates to the way in which the author presents his work to the world, and the way in which his identification with the work is maintained.').]
[Footnote 28: NATIONAL ENDOWMENT FOR THE ARTS, STRATEGIC PLAN: FY2003-2008 3 (Feb. 2003).]
[Footnote 29: Id. at 8.]
This principle, commonly referred to as a `moral right,' is so important that it is required by international agreements and is codified in U.S. law. For instance, the Berne Convention for the Protection of Literary and Artistic Works grants creators the right to object to `any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.' 30
[Footnote] The United States, recognizing the importance of this right, subsequently enacted it into both copyright law 31
[Footnote] and trademark law. 32
[Footnote]
[Footnote 30: Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, 1971.]
[Footnote 31: 17 U.S.C. Sec. 106A.]
[Footnote 32: 15 U.S.C. Sec. 1125.]
While moral rights protection for U.S. creators is far weaker than the protection afforded European creators, a certain level of protection for the moral rights of U.S. creators does exist. The ability of creators to bring claims under the Lanham Act, just as directors have done against ClearPlay, does provide creators with an important ability to protect their moral rights. In fact, the availability of section 43(a) was one of the specific reasons Congress decided, during adoption of the Berne Convention Implementation Act, that U.S. law met the moral rights obligations contained in the Berne Convention. 33
[Footnote] By limiting the availability of Lanham Act suits, title II would limit the moral rights of directors in a way that conflicts with U.S. obligations under the Berne Convention.
[Footnote 33: 133 CONG. REC. H1293 (daily ed. Mar. 16, 1987) (statement of Rep. Robert Kastenmeier).]
Contrary to our laws and international obligations, title II does not require that filtering be done with the permission of the content creator or owner, but rather creates an exemption from copyright and trademark liability for filtering. As the Register of Copyrights stated before the Subcommittee:
I have serious reservations about enacting legislation that permits persons other than the creators or authorized distributors of a motion picture to make a profit by selling adaptations of somebody else's motion picture. It's one thing to say that an individual, in the privacy of his or her home, should be able to filter out undesired scenes or [dialogue] from his or her private home viewing of a movie. It's another matter to say that a for-profit company should be able to commercially market a product that alters a director's artistic vision. 34
[Footnote]
[Footnote 34: H.R. 4586 Hearing at 10 (written statement of Marybeth Peters).]
It is clear, therefore, that the legislation represents a threat to an artist's right to his or her artistic integrity. To permit editing of a creation without the permission of the creator is to encourage censorship and to vitiate freedom of expression.
In conclusion, the Family Movie Act is ill-conceived, poorly-drafted
legislation. Beyond its patent assault on intellectual property rights, the bill
inappropriately involves Congress in a private business dispute and would lead
to socially undesirable editing and actually permit the distribution of
technology that makes pornography even more pornographic. Finally, it encourages
unwarranted intrusions into artistic freedom.
John Conyers, Jr.
Howard L. Berman.
Robert C. Scott.
Melvin L. Watt.
Maxine Waters.
Linda T. Sanchez.
Testimony received at several Congressional hearings highlighted the need for the different Titles of this legislation, which is similar to portions of H.R. 4077, H.R. 4586, and S. 2391 of the 108th Congress. The legislation is also a companion to H.R. 357, introduced by Congressman Lamar Smith during the 109th Congress.
Title I of the Act is similar to S. 1932 and Sec. 8 of H.R. 4077 from the 108th Congress. This title is the `Artists Rights and Theft Prevention Act of 2005.' Section 102 of Title I creates a new 2319B in Title 18, of the United States Code prohibiting the act of using or attempting to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work in a motion picture exhibition facility. The new section is modeled after the existing `anti-bootlegging' statute found in 2319A of Title 18, of the United States Code which prohibits the unauthorized recording of, and trafficking in, sound recordings and music videos from live musical performances.
This new provision deals with the very specific problem of illicit `camcording' of motion pictures in motion picture exhibition facilities. Typically, an offender attends a pre-opening `screening' or a first-weekend theatrical release, and uses sophisticated digital equipment to record the movie. A camcorded version is then sold to a local production factory or to an overseas producer where it is converted into DVDs or similar products and sold on the street for a few dollars per copy. This misuse of camcorders is a significant factor in the estimated $3.5 billion in annual losses the movie industry suffers because of hard-goods piracy.
Causing greater financial harm, these camcorded versions are posted on the Internet through certain peer-to-peer networks and made available for millions of users to download. According to studies by the Motion Picture Association of America (`MPAA'), camcorded versions of movies in theatrical release account for more than 90 percent of the first copies of motion pictures illegally distributed on the Internet. S. 167 will provide prosecutors with resources to stem the piracy of commercially valuable motion pictures at its source.
The Act would not, and is not intended to, reach the conduct of a person who uses a camera, picture phone, or other photographic device to capture a still photo from an exhibition of a motion picture. Rather, the Act reaches the conduct of a person who uses an audiovisual recording device to capture or transmit a `series of related images that are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any.' 1
[Footnote]
[Footnote 1: 17 U.S.C. Sec. 101.]
Notwithstanding this clarification, nothing in this legislation shall be interpreted to suggest that taking photographs in a movie theater is in any way condoned. Engaging in such conduct could still subject a person to civil or criminal liability under the Copyright Act. However, this provision is drafted narrowly to address the specific and pernicious problem of `camcording' copyrighted motion pictures.
In addition, the bill makes clear that `possession of an audiovisual device in a motion picture exhibition facility may be considered as evidence in any proceeding involving this offense, but shall not, by itself, constitute sufficient evidence to support a conviction of this offense.' The Committee recognizes that the fact that someone has brought an audiovisual device may be critical evidence in a case against that person under this section. For example, smuggling a high-quality miniature camera and recording equipment into a movie theater may be highly probative of the intent to camcord. However, the Committee does not intend that the `attempt' language be used to convict, for example, a tourist who ends a day of sightseeing by bringing his camcorder to a motion picture theater but does not attempt to use it to record or transmit a motion picture. This language is intended to guard against such an injustice.
Further, the bill is not intended to permit a prosecution of, for instance, a salesperson at a store who uses a camcorder to record portions of a movie playing to demonstrate the capabilities of a widescreen television. The offense is only applicable to transmitting or copying a movie in a motion picture exhibition facility, which has to be a movie theater or similar venue `that is being used primarily for the exhibition of a copyrighted motion picture.' In the example of the salesperson, the store is being used primarily to sell electronic equipment, not to exhibit motion pictures. (For the same reason, the statute would not cover a university student who records a short segment of a film being shown in film class, as the venue is being used primarily as a classroom, and not as a motion picture exhibition facility.)
Moreover, Sec. 102 is not intended to permit prosecution of individuals making camcorded copies of movies off their television screens. The definition of a motion picture exhibition facility includes the concept that the exhibition must be `open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.' This definition makes clear that someone recording from a television in his home does not meet that definition.
It is important to emphasize that the clause `open to the public' applies specifically to the exhibition, not to the facility. An exhibition in a place open to the public that is itself not made to the public is not the subject of this bill. Thus, for example, a university film lab may be `open to the public.' However, a student who is watching a film in that lab for his or her own study or research would not be engaging in an exhibition that is `open to the public.' Thus, if that student copied an excerpt from such an exhibition, he or she would not be subject to liability under this Section.
The Committee will oversee the Justice Department to ensure that it exercises appropriate prosecutorial discretion when enforcing Sec. 102 of S. 167. While `fair use' is not a defense against a 2319(B) violation, Federal prosecutors should use their discretion not to bring criminal prosecutions against activities within movie theaters that would constitute fair use under the copyright laws. Additionally, prosecutors should consider whether a potential defendant was on notice that camcording violated the law. The Committee appreciates the commitment by the National Association of Theatre Owners (NATO) and MPAA to make available to every motion picture theater in the United States a conspicuous sign informing patrons that camcording in the theater is punishable by a Federal criminal penalty. The Committee fully expects that NATO and the MPAA will abide by that commitment. The posting of such a warning will serve as an important factor to help authorities determine whether a prosecution under this statute would be appropriate.
An immunity provision has been included for good faith efforts by theater owners and other associated individuals to detain in a reasonable manner those they suspected of camcording. This provision and the reasonableness test should be viewed as a companion to shopkeeper privilege statutes found in all States. This section does not pre-empt any State laws.
Section 103 creates a criminal penalty for the willful distribution of works being prepared for commercial distribution. The Committee has been made aware of numerous examples of efforts to camcord new movies during their opening days of release followed immediately by either mass duplication and distribution of DVD copies or Internet distribution of the same movie. Although the harm to the distribution of physical or Internet copies of works when legal copies are available has long been established, the Committee notes the larger harm caused by those who distribute copies of works even before they are legally available to the consumer. Moreover, the Committee is aware of pre-release activity surrounding the creation and duplication of physical advertising signs prior to their initial installation. Finally, the Committee is aware of, and encouraged by, Department of Justice investigations and prosecutions of pre-release cases involving motion pictures, sound recordings, business software, videogame software, and book publications once the works have been released in final form. Section 103 will ensure that there is a specific penalty for such illegal pre-release activity.
Section 104 expressly requires the Register of Copyrights to issue regulations to establish a preregistration system for copyrighted works. Since works are generally not formally copyrighted until they are in final form and ready for distribution to the public, civil remedies for the distribution of pre-release works are lacking. This section will give the Register flexibility to determine which classes of works are appropriate for preregistration. The Committee believes that a class of work with only a few instances of infringement prior to authorized commercial distribution do not meet the test of a `history of infringement,' but otherwise leaves the decision to the discretion of the Register.
To encourage and ensure that preregistered works are formally registered when they are ready for such a filing, the new 17 U.S.C. Sec. 408(f)(4) created by 104 limits civil suits in certain circumstances. By its express terms, the prohibition on infringement suits contained in 408(f)(4) does not apply to suits concerning infringements commencing later than 2 months after first publication of a copyrighted work that had been preregistered with the Copyright Office. Therefore, notwithstanding a failure to meet the deadlines set forth in 408(f)(4)(A) and (B), a copyright owner of a preregistered work can register his or her work under current law and bring infringement actions for infringements occurring more than 2 months after first publication.
Further, a preregistration of a sound recording does not by itself constitute preregistration of the musical works embodied in the sound recording. Accordingly, a later infringement of a musical work contained in a preregistered sound recording would not be subject to the dismissal provision in Sec. 408(f)(4) based on the preregistration of the sound recording.
Section 105 directs the United States Sentencing Commission to review and update, if appropriate, the sentencing guidelines and policy statements surrounding several intellectual property rights crimes. The Commission has previously and successfully updated the guidelines to account for changes in the manner of intellectual property piracy. The Committee has included Sec. 105 because of the unique harms and aspects related to the infringement of pre-release works. The existing guidelines allow for an increase in the base level offense in certain circumstances. 2
[Footnote] Although the guidelines highlight two reasons for consideration of upward departures, the specific and magnified harms caused by the display, performance, publication, reproduction or distribution of a pre-release work appear to warrant their inclusion as a third reason for upward departure.
[Footnote 2: Sec. 2B5.3 (b).]
Title II of the legislation includes text based upon legislation from the 108th Congress, H.R. 4586, the `Family Movie Act of 2004.' The Committee strongly believes that, subject to certain conditions, copyright and trademark law should not be used to limit a parent's right to control what their children watch in the privacy of their own home. A dispute involving this issue is currently being heard in the U.S. District Court for the District of Colorado. 3
[Footnote] Testimony provided by the Register on June 17, 2004, makes clear that some parties to the suit should not face liability for their current actions, while others appear to be in violation of existing copyright law. The `Family Movie Act' clarifies the liability, if any, for the companies that are a party to this case and to other companies not a party to this case that may be interested in providing such services in the future.
[Footnote 3: Huntsman v. Soderbergh, 180 F.3d 1072 (9th Cir.)]
Objections to this legislation centered on four issues:
1. ̀A desire to limit the content that could be skipped to a narrow type of content for specific reasons and/or purposes;
2. ̀The for-profit nature of some of the companies that offer such services;
3. ̀The impact upon television advertising in commercial, over-the-air broadcasts;
4. ̀The impact upon the moral rights of the director.
To respect the First Amendment of the Constitution, the `Family Movie Act' is drafted in a content-neutral manner so that its operation and impact do not depend upon whether the content that was made imperceptible contains items that are often viewed as offensive, such as profanity, violence, or sexual acts. This content-neutrality also pertains to content made imperceptible that is rarely, if ever, viewed as offensive. The goal of the legislation has been to give the viewer the ability to make imperceptible limited portions of work that he or she chooses not to see for themselves or their family, whether or not the skipped content is viewed as objectionable by most, many, few, or even one viewer. Efforts to limit the application of the legislation to specific types of content were rejected by the Committee for First Amendment reasons.
The for-profit nature of the entities providing services to the public that the legislation addresses has no bearing on the operation of the immunity from liability. The Committee is unable to discern a credible basis for creating a distinction between the for-profit or non-profit nature of companies that offer services covered by the Act. The vast majority of movies are made by for-profit companies. In addition, many motion picture companies now partner with advertisers to embed advertising within a movie. Television broadcasts of major sporting events often contain embedded advertising that in some cases appear to be part of the stadium hosting the event. Few, if any, disclosures are even made to all of the viewers that this is occurring and that they are seeing a modified version of the actual event. There is of course no option given to viewers to stop these for-profit entities from making such changes.
One difference between this version of the `Family Movie Act' and the version that passed the House in the 108th Congress is the deletion of a reference in Sec. 112 of H.R. 4077 to commercial advertisements and network or station promotional announcements. The Committee is aware of some dispute concerning automated television commercial-skipping devices. A copy of an exchange of letters between the Committee and the Register is attached. The Committee concurs with the Register's determination that this Act has no bearing on either the legality or illegality of such services or any litigation over the issue.
Although the Committee has not adopted a specific percentage or quantity of time test in place of the `limited portions' language, the Committee will rely upon judicial determination for what is a `limited portion' of the work as a whole. It would be contrary to the legislation to interpret the `limited portions' test in a manner that would exclude actions that result in making imperceptible of 20 minutes of a particular type of content (violence, sexual scenes, profanity, etc.) from a 100-minute motion picture. The 20-minute exclusion may in fact remove 100 percent of one or more types of such content in a movie, but it represents only 20 percent of the total running time of the movie, easily satisfying the plain meaning of `limited portions.'
The plain meaning of S. 167 exempts actions brought under U.S. copyright and trademark law the `making imperceptible . . . of limited portions of audio or video content' provided no fixed copy is created. The Act does not create an exemption for actions that result in fixed copies of altered works. The Committee is aware of services and companies that create fixed derivative copies of motion pictures and believes that such practices are illegal under the Copyright Act.
The Committee is aware of concerns regarding the legislation's impact upon moral rights, particularly those of movie directors. The Committee had hoped to receive testimony from a representative of the director's community on this issue at one of the Committee hearings on the issue, but no director was willing to testify. The Committee is aware of numerous motion pictures being edited for screen size, content, and time purposes with or without the director's consent so that a motion picture can be displayed on the 4.0A3 aspect ratios of standard definition televisions, on an airplane with objectionable language removed, and on television channels in the traditional 90 or 120-minute time slots. The Committee sees no difference between the impact upon the moral rights of directors of such modifications and someone wanting to prevent certain content from being displayed on their television.
Finally, the Committee notes the failure of private sector negotiations with respect to one editing service to resolve the Huntsman v. Soderbergh civil suit. Although private sector negotiations and out-of-court settlements are an important part of the legal process, they cannot be expected to create a lasting solution when one party to the case is repeatedly burdened with the sole responsibility of traveling to all of the parties in the case to seek a settlement. Had some of the parties to the litigation have been more willing to act in good faith and resolve their differences out of court, the need for this legislation for at least one party would have been eliminated.
Title III of the legislation reauthorizes the National Film Preservation Board (`Board') and makes changes to the structure of the Board. It also reauthorizes the National Film Preservation Foundation (`Foundation') with a corresponding authorization of Congressional funding for the program. The authorization for both had expired previously. The Committee expects the Board and Foundation to continue their effort to preserve older works and hopes that those companies and individuals who work in the motion picture business will be the primary source of donations to the Foundation.
Title IV of the legislation fixes a technical, cross reference error in Sec. 104 of the 1998 `Sonny Bono Copyright Term Extension Act' 4
[Footnote] that inadvertently limited access by libraries and archives to certain categories of works during the last 20 of a term. The Committee has confirmed with the relevant groups that the addition of `(h)' to Sec. 108(i) of Title 17 is appropriate and that it was inadvertently omitted from the 1998 Act. This is important because it limited library and archive access to certain works.
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