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108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-670
======================================================================
FAMILY MOVIE ACT OF 2004
_______
September 8, 2004.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4586]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 4586) to provide that making limited portions of audio or
video content of motion pictures imperceptible by or for the
owner or other lawful possessor of an authorized copy of that
motion picture for private home viewing, and the use of
technology therefor, is not an infringement of copyright or of
any right under the Trademark Act of 1946, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 4
Committee Consideration.......................................... 4
Vote of the Committee............................................ 4
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Performance Goals and Objectives................................. 7
Constitutional Authority Statement............................... 7
Section-by-Section Analysis and Discussion....................... 7
Changes in Existing Law Made by the Bill, as Reported............ 7
Markup Transcript................................................ 9
Dissenting Views................................................. 41
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Family Movie Act of 2004''.
SEC. 2. EXEMPTION FROM COPYRIGHT INFRINGEMENT FOR SKIPPING OF AUDIO OR
VIDEO CONTENT OF MOTION PICTURES.
Section 110 of title 17, United States Code, is amended--
(1) in paragraph (9), by striking ``and'' after the
semicolon at the end;
(2) in paragraph (10), by striking the period at the end
and inserting ``; and''; and
(3) by inserting after paragraph (10) the following:
``(11)(A) the making of limited portions of audio or video
content of a motion picture imperceptible by or for the owner
or other lawful possessor of an authorized copy of that motion
picture in the course of viewing of that work for private use
in a household, by means of consumer equipment or services
that--
``(i) are operated by an individual in that
household;
``(ii) serve only such household; and
``(iii) do not create a fixed copy of the altered
version; and
``(B) the use of technology to make such audio or video
content imperceptible, that does not create a fixed copy of the
altered version.''.
SEC. 3. EXEMPTION FROM TRADEMARK INFRINGEMENT FOR SKIPPING OF AUDIO OR
VIDEO CONTENT OF MOTION PICTURES.
Section 32 of the Trademark Act of 1946 (15 U.S.C. 1114) is amended
by adding at the end the following:
``(3)(A) Any person who engages in the conduct described in
paragraph (11) of section 110 of title 17, United States Code, and who
complies with the requirements set forth in that paragraph is not
liable on account of such conduct for a violation of any right under
this Act.
``(B) A manufacturer, licensee, or licensor of technology that
enables the making of limited portions of audio or video content of a
motion picture imperceptible that is authorized under subparagraph (A)
is not liable on account of such manufacture or license for a violation
of any right under this Act. Such manufacturer, licensee, or licensor
shall ensure that the technology provides a clear and conspicuous
notice that the performance of the motion picture is altered from the
performance intended by the director or copyright holder of the motion
picture.
``(C) Any manufacturer, licensee, or licensor of technology
described in subparagraph (B) who fails to comply with the requirement
under subparagraph (B) to provide notice with respect to a motion
picture shall be liable in a civil action brought by the copyright
owner of the motion picture that is modified by the technology in an
amount not to exceed $1,000 for each such motion picture.
``(D) The requirement under subparagraph (B) to provide notice, and
the provisions of subparagraph (C), shall apply only with respect to
technology manufactured after the end of the 180-day period beginning
on the date of the enactment of the Family Movie Act of 2004.''.
SEC. 4. DEFINITION.
In this Act, the term ``Trademark Act of 1946'' means the Act
entitled ``An Act to provide for the registration and protection of
trademarks used in commerce, to carry out the provisions of certain
international conventions, and for other purposes'', approved July 5,
1946 (15 U.S.C. 1051 et seq.).
Purpose and Summary
The purpose of H.R. 4586 is to clarify that existing law
allows companies to offer technologies and services that filter
out inappropriate or adult content in movies, usually digital
video discs (DVDs).
Background and Need for the Legislation
Motion picture fans have become increasingly concerned
about picture content that they do not want to watch or hear,
including that related to sex, profanity, and violence. For
years, parents have manually turned down the volume of the
audio or simply turned off playback of the offensive content.
In recent years, people have begun using remote controls
bundled with playback devices to accomplish the same thing.
However, the ability of parents to manually filter out all of
the content that they view as inappropriate has become more
difficult as the number of sources of entertainment continues
to increase.
The Committee notes that airline and broadcast versions of
numerous motion pictures exist that have been edited for
offensive content. In the Committee's view, these works
manifest a valuable family friendly market that directors and
copyright holders are willing to serve by editing their movies.
The ongoing policy dispute involving H.R. 4586 may have been
avoided if these airline and broadcast versions had been made
available for sale to the public in the first place.
Because these versions are not being made available by
copyright owners, a growing number of companies are now
offering services to assist families in their efforts to shield
their children from inappropriate content. These services range
from selling derivative works to the public that have been
edited by a third party other than the director or copyright
holder to technology that skips and mutes content that parents
may not want their children to watch or hear. Such services
have spawned recent litigation between the companies that offer
these services and the affected copyright holders.
The Committee believes these services are an important tool
for parents and other citizens concerned about audiovisual
content to filter out inappropriate content. There is ongoing
litigation in Colorado that is placing the viability of such
services into question. The Committee believes that legislation
is necessary to clarify which services and technology do not
conflict with those rights protected under existing copyright
and trademark law. The Committee is not endorsing any
particular technology or service as either legal or more
suitable for consumers than others. The decision regarding
preference is left to consumers; the decision regarding
legality is left to the courts.
The Committee is nonetheless concerned that one service
that has adopted a model that is already legal under existing
law is embroiled in litigation. In fact, the Register of
Copyrights testified on June 17, 2004, that this model is legal
under existing law.\1\ The Committee believes that ongoing
litigation threatens the viability of services that operate
under this legal model and that legislation to clarify the
legality of this model is therefore necessary.
---------------------------------------------------------------------------
\1\ Family Movie Act: Hearings on H.R. 4586 Before the Subcomm. on
Courts, the Internet, and Intellectual Property of the House of
Representatives Comm. on the Judiciary, 108th Cong. 94 (2004).
---------------------------------------------------------------------------
The model of services that the Committee believes is legal
only skips and mutes content without adding any new audio or
video content while making it clear to the end user that the
modified version may not be supported by the director.
Under existing law, moral (reputational) rights do not
supersede parental rights to raise children as they see fit.
The Committee believes that directors should be assured that
their works are properly identified as such; but these same
directors may not control every detail of how their works are
displayed, particularly for a legal copy aired in the privacy
of a consumer's home. Several directors and a trade association
representing them have argued that for-profit services that
offer families a means to control what they watch in the
privacy of their own home were illegal under existing copyright
law. The Committee strongly disagrees with this interpretation
of copyright law.
Hearings
The Committee's Subcommittee on Courts, the Internet, and
Intellectual Property held an oversight hearing on this issue
on May 20, 2004, with testimony received from five witnesses
representing five organizations. The Subcommittee subsequently
held a hearing on H.R. 4586 on June 17, 2004. Testimony was
received from four witnesses representing four organizations.
Committee Consideration
On July 8, 2004, the Subcommittee on Courts, the Internet,
and Intellectual Property met in open session and ordered
favorably reported the bill H.R. 4586, as amended, by a vote of
11 to 5, a quorum being present. On July 21, 2004, the
Committee met in open session and ordered favorably reported
the bill H.R. 4586 with an amendment by a vote of 18 to 9, a
quorum being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that the
following recorded vote occurred during the Committee's
consideration of H.R. 4586. The Committee adopted the motion to
report the bill favorably with an amendment by a vote of 18
yeas to 9 noes.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 18 9
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4586, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 17, 2004.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4586, the Family
Movie Act of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Melissa E.
Zimmerman (for Federal costs), who can be reached at 226-2860,
and Paige Piper/Bach (for the private-sector impact), who can
be reached at 226-2960.
Sincerely,
Douglas Holtz-Eakin.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 4586--Family Movie Act of 2004.
H.R. 4586 would specify that technology used to filter
certain material out of movies for private viewing would not
constitute a violation of copyright or trademark law. CBO
estimates that implementing H.R. 4586 would have no effect on
Federal spending.
H.R. 4586 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of State, local, or tribal governments.
H.R. 4586 would impose private-sector mandates as defined
in UMRA. CBO estimates that the direct cost of the mandates
would fall well below the annual threshold established by UMRA
for private-sector mandates ($120 million in 2004, adjusted
annually for inflation).
First, the bill would impose a private-sector mandate on
copyright owners. The bill would limit the right of copyright
owners to collect compensation under copyright law from persons
using or manufacturing a technology that enables making limited
changes to a motion picture for a private home viewing.
According to testimony from the Patent and Trademark Office and
other sources, no such compensation is currently received by
copyright owners. Therefore, CBO estimates that the direct cost
of the mandate, measured as net income forgone, would be small
or zero.
Second, the bill also would impose a private-sector mandate
on manufacturers, licensees, and licensors of technology that
enables the making of limited portions of audio or video
content of a motion picture imperceptible. Such manufacturers,
licensees, or licensors would be required to ensure that the
technology provides a clear and conspicuous notice that the
performance of the motion picture is altered from the
performance intended by the director or copyright holder of the
motion picture. Complying with the mandate would exempt such
manufacturers, licensees, or licensors from liability under
section 32 of the Trademark Act of 1946. The direct cost of the
mandate on those private-sector entities would be the total
cost of providing the notice less the direct savings achieved
by limiting their liability. CBO has no basis for determining
the direct savings for the exemption from trademark liability.
However, according to Government and other sources, the
technology to provide the required notice is readily available
and is currently used by some manufacturers. Thus, CBO expects
the direct cost to comply with the mandate, if any, would be
minimal.
The CBO staff contacts for this estimate are Melissa E.
Zimmerman (for Federal costs), who can be reached at 226-2860,
and Paige Piper/Bach (for the private-sector impact), who can
be reached at 226-2940. The estimate was approved by Peter H.
Fontaine, Deputy Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
4586 is designed to clarify the legality of existing and future
services and technology that enable the skipping or muting of
content in audio-visual works.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, Sec. 8, of the Constitution.
Section-by-Section Analysis and Discussion
The following discussion describes the bill as reported by
the Committee.
Section 1 provides that this Act may be cited as the
``Family Movie Act of 2004.''
Section 2 of the legislation creates a new subsection
Sec. 110 (11) of Title 17. This new subsection ensures that
U.S. copyright law sanctions the use of any filtering service
or technology that mutes or skips content, provided the service
or technology--
1. Lis confined to private, in-home use, for the
household of the purchasing consumer only; and
2. Ldoes not create a fixed copy of the alternate
version.
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.
Section 3 of the legislation clarifies existing U.S.
trademark law to ensure that it cannot be interpreted to
proscribe the operation of services identified in Sec. 2 so
long as they display a clear and conspicuous notice that the
altered version is not the performance intended by the director
or copyright holder of the motion picture. The Committee
believes that an on-screen disclaimer in large font at the
beginning of a performance of a particular work that is
displayed for a length of time suitable for the average viewer
to read the notice is sufficient. Such notice would be similar
to the FBI anti-piracy warnings shown at the beginning of most
major motion pictures. This requirement begins 180 days after
the legislation becomes law. Since the manufacturer of a
physical device complying with the requirements maintains
control over the device before the retail purchase point, these
requirements should not burden consumer electronics
manufacturers.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 110 OF TITLE 17, UNITED STATES CODE
Sec. 110. Limitations on exclusive rights: Exemption of certain
performances and displays
Notwithstanding the provisions of section 106, the
following are not infringements of copyright:
(1) * * *
* * * * * * *
(9) performance on a single occasion of a dramatic
literary work published at least ten years before the
date of the performance, by or in the course of a
transmission specifically designed for and primarily
directed to blind or other handicapped persons who are
unable to read normal printed material as a result of
their handicap, if the performance is made without any
purpose of direct or indirect commercial advantage and
its transmission is made through the facilities of a
radio subcarrier authorization referred to in clause
(8)(iii), Provided, That the provisions of this clause
shall not be applicable to more than one performance of
the same work by the same performers or under the
auspices of the same organization; [and]
(10) notwithstanding paragraph (4), the following
is not an infringement of copyright: performance of a
nondramatic literary or musical work in the course of a
social function which is organized and promoted by a
nonprofit veterans' organization or a nonprofit
fraternal organization to which the general public is
not invited, but not including the invitees of the
organizations, if the proceeds from the performance,
after deducting the reasonable costs of producing the
performance, are used exclusively for charitable
purposes and not for financial gain. For purposes of
this section the social functions of any college or
university fraternity or sorority shall not be included
unless the social function is held solely to raise
funds for a specific charitable purpose[.]; and
(11)(A) the making of limited portions of audio or
video content of a motion picture imperceptible by or
for the owner or other lawful possessor of an
authorized copy of that motion picture in the course of
viewing of that work for private use in a household, by
means of consumer equipment or services that--
(i) are operated by an individual in that
household;
(ii) serve only such household; and
(iii) do not create a fixed copy of the
altered version; and
(B) the use of technology to make such audio or
video content imperceptible, that does not create a
fixed copy of the altered version.
* * * * * * *
----------
SECTION 32 OF THE TRADEMARK ACT OF 1946
Sec. 32. (1) * * *
* * * * * * *
(3)(A) Any person who engages in the conduct described in
paragraph (11) of section 110 of title 17, United States Code,
and who complies with the requirements set forth in that
paragraph is not liable on account of such conduct for a
violation of any right under this Act.
(B) A manufacturer, licensee, or licensor of technology
that enables the making of limited portions of audio or video
content of a motion picture imperceptible that is authorized
under subparagraph (A) is not liable on account of such
manufacture or license for a violation of any right under this
Act. Such manufacturer, licensee, or licensor shall ensure that
the technology provides a clear and conspicuous notice that the
performance of the motion picture is altered from the
performance intended by the director or copyright holder of the
motion picture.
(C) Any manufacturer, licensee, or licensor of technology
described in subparagraph (B) who fails to comply with the
requirement under subparagraph (B) to provide notice with
respect to a motion picture shall be liable in a civil action
brought by the copyright owner of the motion picture that is
modified by the technology in an amount not to exceed $1,000
for each such motion picture.
(D) The requirement under subparagraph (B) to provide
notice, and the provisions of subparagraph (C), shall apply
only with respect to technology manufactured after the end of
the 180-day period beginning on the date of the enactment of
the Family Movie Act of 2004.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, JULY 21, 2004
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 10:00 a.m., in Room
2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will come to order. A
quorum is present.
[Intervening business.]
[11:00 a.m.]
Chairman Sensenbrenner. Next item on the agenda is H.R.
4586, the ``Family Movie Act of 2004.'' The Chair recognizes
the gentleman from Texas Mr. Smith, the Chairman of the
Subcommittee on Courts, the Internet, and Intellectual
Property, for a motion.
Mr. Smith. The Subcommittee on Courts, Internet, and
Intellectual Property reports favorably the bill H.R. 4586 with
the single amendment in the nature of a substitute and moves
its favorable recommendation to the full House.
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and open for amendment at any point.
[The bill, H.R. 4586, follows:]
Chairman Sensenbrenner. And the Subcommittee amendment in
the nature of a substitute which the Members have before them
will be considered as read, considered as the original text for
purposes of amendment, and open for amendment at any point.
[The amendment in the nature of a substitute follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Texas, Mr. Smith, to strike the last word.
Mr. Smith. I do move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman, we are here today to determine
whether parents have the right to decide what their children
watch on the screen in the privacy of their own home.
Specifically, do parents have a right to protect their children
from sex, violence, and profanity in the movies?
These days I don't think anyone would even consider buying
a DVD player that doesn't come with a remote control, yet there
are some who would defy the parents the right to use the
equivalent electronic device that would protect their children
from offensive material on television. Yes, parents might mute
dialogue that others deem crucial or might fast-forward over
scenes that others consider essential, but that is irrelevant.
Parents should be able to mute or skip over anything they want
if they feel it is in the best interest of their children. And
as a practical matter, parents cannot monitor their children's
viewing habits all the time.
If you look at a DVD and VCR before and after technology
has been used to mute or fast-forward over offensive material,
there would be absolutely no difference in the product. It has
not been sliced, diced, mutilated, or altered. The director's
work is still intact. No unauthorized copies have been
distributed, no copyright violated.
Some have said that the recent decision by RCA to stop
selling one brand of family-friendly technology is a sign that
this legislation should not proceed. This issue has never been
about simply one company or one technology. It has always been
about the ultimate right of parents to limit the profanity,
sex, and violence that their children are exposed to in the
privacy of their own home.
In fact, the Register of Copyrights has testified that
skipping of content is legal under the law. Most recently the
Supreme Court itself has issued a decision in Ashcroft v. ALCU
concerning the Children's On-Line Protection Act. The majority
opinion noted at length their preference for private sector
filters to protect children from objectionable content on the
Internet. Two quotes from the majority opinion are noteworthy.
Quote, ``Filters are less restrictive than the Children's On-
Line Protection Act. They impose selective restrictions on
speech at the receiving end, not universal restrictions at the
source.'' the majority then added, quote, ``by enacting
programs to promote use of filtering software, Congress could
give parents that ability without subjecting protected speech
to severe penalties,'' end quote.
Just as the author of a book should not be able to force me
or anyone else to read that book in any particular manner, a
studio or director should not be able to force me or my
children to watch a movie in a particular way. No one would
argue that it would be or it should be against the law to skip
over a few pages or even entire chapters of a book. So too it
should not be illegal to skip over a few words or scenes in a
movie.
One criticism is that no one forces parents to make sure
children watch objectionable movies. However, popular movies
are used as homework assignments in many middle and high
schools today. The parents are in fact forced to allow their
children to watch a movie in the privacy of their own home,
even though the movies contain objectionable content.
However, Mr. Chairman, even that criticism itself is a
distraction. Parents should have the right to show any movie
they want and to skip or mute over any content they find
objectionable. The Family Movie Act ensures that parents have
those rights.
Mr. Chairman, I will yield back the balance of my time.
Chairman Sensenbrenner. Mr. Berman, the gentleman from
California.
Mr. Berman. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. Mr. Chairman, I ask my colleagues to oppose
this bill. Notwithstanding the comments of my friend, the
Chairman of the Subcommittee, and I think this is probably the
first bill in the year and a half that he has been Chair and I
have been Ranking Member where I disagree with him on an item
that came out of Subcommittee as opposed to some other issues
which don't come out of our Subcommittee.
This is not a bill about empowering parents or protecting
children. Notwithstanding the rhetoric in the opening
statement, notwithstanding the Republican memo, I ask the
Committee to remember two things. In the subCommittee I offered
an amendment to ensure this bill only legalizes movie editing
done on behalf of minor children. That amendment was rejected.
I also offered an amendment, and Mr. Schiff is going to be
offering an amendment on this bill, that limited the filtering
to profanity, violence, and explicit sexual conduct. That
amendment was rejected by the majority.
So in defeating those amendments, essentially, and in the
rhetoric to defeat those amendments, the supporters of the bill
as presented to us stated that it is intended to facilitate
movie editing by anyone, for anyone, for any purpose, not just
for children. So even the bill's sponsors have acknowledged
that this bill is not focused on empowering parents or
protecting children.
Let's be clear about something else too. H.R. 4586 does not
give parents the ability to do anything they cannot legally do
today. No parent has ever been sued or threatened with suit for
editing or censoring the movies their children see. In fact,
the Register of Copyrights have testified that H.R. 4586 is,
quote, ``not needed because it seems reasonably clear that such
conduct is not prohibited under existing law.'' copyright
owners themselves clearly admit that parents have the legal
authority to do such editing in the privacy of their own home.
The bill is also not needed to give parents the
technological ability to edit or censor the movies their
children watch. To a large extent, parents already have this
ability. They can use their remote control to fast forward,
mute, or turn off a movie. They can engage their V-chips that
are built into all televisions sold these days. And this bill
does nothing to legalize technologies that enable parents to
make editorial decisions about which movie scenes their
children cannot see or hear.
So what does this bill do? It gives for-profit companies
the right to commercially exploit the copyrights and trademarks
of movie makers without fear of liability. It allows those for-
profit companies to make editorial decisions about movies
without the input of their creators and to market products
containing those editorial decisions to anyone, parents or
otherwise. This is the key point. H.R. 4586 does not empower
parents to make editorial decisions about which scenes their
children will or won't see; rather, it empowers for-profit
companies like ClearPlay to make editorial decisions about
which movie scenes other people's children will or won't see.
When a parent uses a remote control to fast-forward through
a scene, it is the parent who views the scene and assesses
whether it is inappropriate for the child. Again, it is
absolutely clear that such editing is entirely legal today.
However, when a parent engages a ClearPlay filter, the parent
relies on a nameless, faceless ClearPlay employee to decide
which scenes are inappropriate for her child.
The question at the heart of this bill and the copyright
litigation to which it reacts is whether ClearPlay should be
able to engage in such commercial editing without the
permission of copyright and trademark owners. I don't believe
Congress should be in the business of giving ClearPlay such a
right.
Even if you believe ClearPlay should have the legal ability
to do such commercial editing, this bill won't get you there.
H.R. 4586 only protects movie filtering technologies like
ClearPlay from liability for copyright and trademark
infringement, but it doesn't protect them, at least at this
point, from suits for patent infringement.
At least one company, Nissan Corporation, claims to have a
patent over ClearPlay-type technology and has sued ClearPlay
for patent infringement. Since Thompson Electronics recently
pulled its ClearPlay-enabled DVD players from the market, it
appears that Nissan's patent claims are well founded. Thus, if
H.R. 4586 were to become law, ClearPlay very likely will not be
able to distribute its technology. In fact, if it is----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Berman. I ask unanimous consent for 2 additional
minutes.
Chairman Sensenbrenner. Without objection.
Mr. Berman. If the patent claims are valid, Nissan
Corporation would be the only company that H.R. 4586 benefits.
Nissan would be the only company that could distribute its
technology without fear of liability. Knowing the professed
intent of the bill's sponsors, I find it highly ironic that
H.R. 4586 may exclusively benefit Nissan. Nissan, unlike
ClearPlay, distributes a technology called Custom Play--well,
actually ClearPlay distributes the same technology, but Nissan
advertises that it allows movie viewers to either reduce or
enhance the level of violence, sex, and profanity in a movie.
The Nissan Web site states that using Custom Play technology,
an 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. In other words, H.R. 4586
exclusively protects from liability a technology that, among
other things, enables viewers of pornographic movies to filter
out the nonpornographic scenes. I am sure its sponsors don't
intend H.R. 4586 to solely benefit a company that makes
pornography more pornographic; however, that may very will be
its effect.
Now they are aware of the risk, I think they should think
twice before asking Committee Members to vote in favor of this
bill. Upon reflection, I think the bill's sponsors may agree
with the Register of Copyrights who testified, quote----
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Without objection, all Members' opening statements will
appear in the record at this point.
[The prepared statement of Ms. Waters follows:]
Prepared Statement of the Honorable Maxine Waters, a Representative in
Congress From the State of California
Mr. Chairman, I move to strike the last word.
Mr. Chairman, I have significant concerns about this bill. Mr.
Berman has expressed many of them. Yet these concerns are somewhat
lessened because the technology that we are addressing does not create
an altered copy that can be redistributed to other users or to the
public generally.
As I understand the technology, it employs software that will
filter what appears on a dvd player when a movie is inserted, but it
does not alter the movie itself. I see some persuasiveness to the view
that Representative Lofgren expressed in our Subcommittee markup that
the technology simply assists authorized users in doing what they
already have a right to do: namely, to view only those portions of a
movie or a TV show that they wish to watch.
Nonetheless, I question whether H.R. 4586 is necessary. I also
believe that we must acknowledge that the bill contains no meaningful
limits on the scope of permissible filtering. As a result, I believe
that it will impinge on the artistic freedom of motion picture
creators, weaken the rights of motion picture copyright owners, and
raise First Amendment concerns.
As I noted at the Subcommittee markup, if our goal is to protect
young people from content that their parents deem objectionable, I
believe that there are far less drastic means available to accomplish
this.
We know that there are versions of movies that appear on airlines
and on television that are edited from the original work. While
sometimes these movie versions are edited to shorten the time of the
film or to delete the credits, they also sometimes are edited to ensure
that content not deemed suitable for children is deleted.
It seems clear to me that where the public, or a company like
ClearPlay, has access to the so-called ``airplane'' or ``TV'' versions
of movies that these versions will properly protect young people from
potentially objectionable content.
Thus, I continue to believe that if we are going to legislate in
this area, where ``airplane'' or ``TV'' versions of a movie are
licensed to a company like ClearPlay or where such versions are
available for sale to the public, the airplane or TV version should
represent the outer limit of permissible content editing.
We should prevent the use of filtering software to create edited
versions of movies that contain edits other than those included in the
``airline'' or ``TV'' version where such a version is available to the
public, and not permit additional filtering of the work without the
consent of the motion picture owners and creators.
Mr. Chairman, I am not seeking to require any movie owner to create
an ``airline'' or ``TV'' version of any movie, nor should we require a
movie owner to make an airline or TV version available to the public or
to license such versions to companies like ClearPlay where such
versions do exist.
Mr. Chairman, I know that there is considerable controversy as to
whether the software employed by ClearPlay violates the copyright or
trademark laws, and my comments are not intended to express a view on
that dispute. Yet, as I noted at our hearing on this bill, I think that
the public would be well-served if the parties to the ClearPlay
litigation can reach a commercial settlement of this dispute.
I have no interest in allowing the possibility of legislation like
this bill to be used as a club to influence settlement negotiations
between the movie studios and ClearPlay in the federal court litigation
pending in Colorado, or to influence any other efforts to arrive at a
commercial resolution of this dispute. I fear that the prospect of this
legislation is derailing meaningful settlement discussions.
It seems as if the prospect of this legislation may have caused
ClearPlay to raise its demands and to take certain terms off the table
that it previously had offered. I am advised that ClearPlay is now
asking that it be allowed to edit movies made by ``final cut''
directors for which no airplane or TV version is available. With regard
to films for which TV or airplane versions are available, ClearPlay is
now asking that it be able to make its own edits, rather than use the
TV or airplane edits.
Mr. Chairman, I am very concerned about preserving the rights of
the movie studios and creative artists to protect their exclusive right
to create derivative works based upon their copyrighted motion
pictures. If the movie owners and the movie creators and directors can
agree to give ClearPlay a license to exhibit ``airplane'' or ``TV''
versions of movies or if such versions are available to the public
directly, the public will be very well-served. In these circumstances,
I see no compelling reason whatsoever to create further exemptions from
copyright and trademark law.
I yield back the balance of my time.
Chairman Sensenbrenner. Are there amendments? Gentleman
from Texas, Mr. Smith, has a perfecting amendment. And the
clerk will report the amendment.
The Clerk. Mr. Chairman, I have two amendments.
Chairman Sensenbrenner. This is Smith Texas 074 XML. Is
that the right one? The clerk will report that amendment.
The Clerk. Amendment to the amendment in the nature of a
substitute to H.R. 4586 offered by Mr. Smith of Texas.
[The amendment to the amendment in the nature of a
substitute, offered by Mr. Smith of Texas, follows:]
Chairman Sensenbrenner. Without objection, the amendment
will be considered as read. The gentleman from Texas will be
recognized for 5 minutes.
Mr. Smith. I will be brief. The perfecting amendment makes
one simple change to the Subcommittee reported bill. The
existing bill refers in section 3 to manufacturers. The
amendment would change such references to manufacturers,
licensees, and licensors. This amendment would ensure that
those who were involved in licensing the technology identified
in this act do not also face trademark claims.
So I urge my colleagues to support the perfecting
amendment. And also, Mr. Chairman, I want to point out to my
colleagues who are here today that the bill did receive
bipartisan support as it was marked up in the Subcommittee.
Ms. Lofgren. Would the gentleman yield? I just wanted to
briefly comment about the bill and certainly this is a
technical amendment. I think, and Mr. Berman's last comment
about the use of technology to go the other direction in terms
of content, emphasizes that really, although there has been a
lot of discussion about the use of technology to protect
parents, it is really about consumer rights in my judgment.
And it seems to me that if an individual has a right not to
watch parts of a DVD, which we all agree consumers have that
right--you can go to the bathroom, you can go to the
refrigerator--then it seems to me you have the right to use
whatever technology you wish to as a tool to advance that
right. So I think it is important to note that this technology
does not permanently alter the underlying DVD, it has never
changed, but it is merely a tool to allow people to watch what
they want to watch, either enhanced so that they don't have to
watch the nondirty parts, or to take out all the violence and
dirty parts or whatever.
So looking at it in that way this is just a consumer rights
bill. And I feel very comfortable in supporting it.
I thank the gentleman for yielding to me to say so.
Mr. Smith. I thank the gentlelady from California for her
comments. Mr. Chairman, I yield back.
Chairman Sensenbrenner. Mr. Berman.
Mr. Berman. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. I have no objection to this amendment of a
technical nature. I am not asking people to oppose this
amendment. I just want to respond that were there a company to
develop a software that enabled parents or consumers to develop
filters to exclude items they wanted to, we would be talking
about something very different. But this is not what this
legislation authorizes and purports to legalize.
And again I simply go back to the fact that things which
empower consumers are very different than things which
substitute for consumers' judgment with a product owned by
somebody else so that their trademark and their copyright is
changed. And the fact that this doesn't touch--if ever I heard
of a distinction without a difference, the fact that this is a
filter that makes imperceptible that which comes off of the DVD
as opposed to altering the DVD to me is a distinction without a
difference. They are changing what the creator of that work
intended. I think that they should be working with that creator
and that copyright owner to provide a licensed version of those
things when they are in the business of making a profit by
producing and distributing and selling these filters.
I yield back.
Chairman Sensenbrenner. The question is on the amendment to
the amendment in the nature of a substitute offered by the
gentleman from Texas, Mr. Smith.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. Ayes have it. The amendment is
agreed to.
Further amendments? The gentleman from California Mr.
Schiff.
Mr. Schiff. I have two amendments at the desk. If I could
take up the first, 110.
Chairman Sensenbrenner. The clerk will report Schiff 110.
The Clerk. Amendment to the amendment in the nature of a
substitute to H.R. 4586 offered by Mr. Schiff. Page 1, line 15,
strike ``limited'' and insert ``profane, sexual or violent.''
page 2, line 22, strike ``limited'' and insert ``profane,
sexual, or violent.''
[The amendment to the amendment in the nature of a
substitute, offered by Mr. Schiff, follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I thank the Chairman. Before I go to the
merits, I wanted to join my colleague from California, Mr.
Berman, in his remarks. This bill is really not about parents
having editorial discretion over the films that their children
see, but rather whether one private company or a series of
private technology makers should have the unrestricted ability
to edit someone else's work product and put it into the market,
edit it in any way they like without having, as they are
required under current law, to negotiate those rights with the
developer of the content.
This is, in just a different forum, one of the many
disputes between the technology makers and the makers of
content about who want to control that content. That is really
what is at the heart of the bill. I think this amendment lays
bare what this bill is really about. Because in sum what this
amendment does is ensure that the protections provided by the
legislation would only be extended to technology that is aimed
at protecting viewers from profane, sexual, or violent content.
This amendment was offered by Mr. Berman in Subcommittee.
And as has been pointed out, while the proponents of the
underlying bill have indicated that their goal is to provide
filters that would sanitize movies of sex, violence, and
profanity, the current bill is not drafted to limit its
provisions to such edits; rather, the bill would legalize a far
wider and unbridled universe of filtering to either increase
profane, violent, and sexual content or decrease it.
This legislation would provide a safe harbor to a company
that proactively markets this product as a means of isolating
sexual content for the viewer, as has been indicated by my
colleague from California. And I sincerely doubt the proponents
of this legislation intend to do that, but that is the effect.
So this amendment would ensure that Congress is not
promoting unintended consequences providing licenses to those
that make filters that are less desirable. And since the
amendment really goes precisely at what the proponents say they
want to accomplish, I can only assume if they oppose the
amendment that their goal is something different, that their
goal is not really to limit the violence, the sexual, the
profane, but rather to give a competitive economic advantage to
some technology makers over other technology makers, to all
technology makers over content makers, because what the
technology makers seek to do they are capable of doing through
negotiation. And currently those negotiations are going on.
But if Congress steps in and changes the playing field, it
obviously advantages some of the technology makers vis-a-vis
others. But if our goal really is to limit this to protecting
minors, to empower parents, this amendment goes right to the
heart of what the proponents seek to do. And I think it will be
apparent based on the support for this amendment or its
opposition what is really at stake here.
And I would urge all my colleagues to support this limiting
language. I would yield back the balance of my time.
Chairman Sensenbrenner. Mr. Smith.
Mr. Smith. Mr. Chairman, we dealt with this amendment in
Subcommittee, but I am happy to register my objection to it
again. The Family Movie Act is not about just profane, sexual,
or violent content, it is about the right of parents to decide
what their children see. Parents may choose to skip over or
mute anything they want to, quite frankly. It might be profane,
sexual or violent content, but they might also choose to mute
or skip over other content that they find objectionable. This
content, for example, could include drug use that a parent does
not want their teenager to watch, or it could simply be a scary
part of a movie that an 8-year-old will get nightmares from. In
other words, it is not just limited to the profane or the sex
or the violence. Whatever the content depicted on the screen,
parents should have a right to use a remote control to mute or
skip over it or use technology to accomplish the very same
thing.
I urge my colleagues to oppose the amendment.
Mr. Cannon. Would the gentleman yield?
Mr. Smith. I would be happy to.
Mr. Cannon. This, of course, has been a very interesting
issue to me, since I represented all of the defendants in
litigation between the studios and directors on the one hand,
and the producers of innovation and technology that allows
people a great deal more freedom as they look at Hollywood's
otherwise admirable products. But I have a concern that is very
important to me. We have in that lawsuit a number of
technologies and theories of law. I am wondering if the
gentleman from Texas could comment on the implications of this
bill for other theories of law that are represented in that
lawsuit. In other words, when the lawyers for the studios and
the directors stand up and argue what we do here today, will
that have an effect on that lawsuit, or do you see it as
independent, maybe establishing some principles but not
jeopardizing other arguments or issues?
Mr. Smith. Would the gentleman yield? I envision this
legislation as being independent both from lawsuits and from
any specific technology, if that reassures the gentleman. And
one reason for this legislation is that, quite frankly, we
don't know what a specific court in a specific State is going
to do. What we want to do here is make sure that parents, in
whatever State they live, have the right to mute or skip over
certain material that they consider to be offensive and not in
the best interest of their children.
Does that help the gentleman?
Mr. Cannon. I thank the gentleman.
Mr. Berman. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman.
Mr. Berman. Mr. Chairman, I obviously support the
gentleman's amendment. Only two comments I want to make. One,
in presenting the bill, this is about presenting--allowing
parents, empowering parents to prevent children from seeing
inappropriate violence, hearing inappropriate profanity,
viewing inappropriate sexual content.
Mr. Schiff offers an amendment and now it is about
empowering parents to filter any item, including items that
don't fit into those categories for children. When we offer an
amendment that says all right, let's just allow this for when
the parents are using filters to show it to the children, this
is not about just parents showing it to the children.
Why with all the rhetoric, why don't we just go right to
the gentleman from California's point; they think it is a
consumer right to have a commercial company create its own
filters which are then sold to change, fundamentally in many
cases, either in a pornographic enhancing or a pornographic
reducing way or in any other way, the product of an artistic
creation owned by somebody else.
The second point I want to make is the comment that this is
technology neutral. Just read the bill. This only purports to
authorize one type of technology, a technology by means--it is
a technology, if you look at the bill, the making--which allows
the making of limited portions of audio or video content
imperceptible by or for the owner or other lawful possessor,
for private use in a household, although that may be changed by
a subsequent amendment that the gentleman may offer, which are
operated by an individual in that household, serve only such
household, do not create a fixed copy of the altered version.
If you create a fixed copy of the altered version, then
this technology--that technology is not permitted. This bill is
not technology neutral. This favors the ClearPlay-type
technology, not technologies which alter, mutilate, splice, or
whatever dice means, in the context of this. It is not a
technology neutral proposal.
Mr. Schiff. Would the gentleman yield? I wonder if I might
pose a question to the gentleman from Texas that how far he
thinks this legislation or other ought to go. Should purchasers
of the technology be able to use it to edit a film to change
the ending of a film?
Mr. Smith. Would the gentleman yield? Let me repeat a
couple of things that I thought I had made clear but apparently
did not. First of all, I feel that parents should be able to
use the technology to skip over anything that they deem
offensive. If they want to skip the ending of a movie, even
though someone else might consider it to be crucial, I think
that is the right of the parents.
So to follow upon what Mr. Berman just said, we have given
examples of sex, violence, and profanity, but I made clear from
the very beginning those are just the most egregious examples.
I gave an example of a parent not wanting to see drug dealing,
for example.
So all the examples that you all might come up with are
really red herrings or straw men or distractions to get us away
from the real issue to me, which is the right of parents, the
right of consumers, even in Ms. Lofgren's words, to use
technology that we might have done--it might have been manual a
generation ago, it might be by remote control in other year or
two--but to use technology to skip over anything they deem
offensive in the privacy of their own home.
We are not talking about changing permanently the film or
the DVD or the VCR. We are not talking about selling it for
profit. We are not talking about commercializing it. We are
talking about the right of parents to do what they want to do
with the VCR in their own home.
Mr. Berman. I yield to the gentleman from Massachusetts.
Mr. Delahunt. I was just simply going to ask the Ranking
Member Mr. Berman here, aren't there other technologies that
are in existence at this moment in time that do exactly what
the gentleman from Texas wishes to do?
Mr. Berman. V-chips, remote controls, mute buttons, fast-
forward buttons.
Mr. Delahunt. Is that why the----
Mr. Berman. And other--and technologies which empower the
parent--although I know it is not just the parent--but the
parent to create their own filters to show movies.
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Delahunt. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Delahunt. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. I yield whatever time Mr. Berman needs to
complete the point that he was making.
Mr. Berman. On the theory that it is a point that I have
already made, I will not make it again.
Chairman Sensenbrenner. That is appreciated.
Mr. Berman. At this moment.
Mr. Delahunt. Again, I would just make the observation that
I think it is rather clear that in the exchange between Mr.
Smith and Mr. Berman and Mr. Schiff, and I applaud the
gentleman for his amendment, I think it really does clarify for
us this is really not--and I think we should be clear--this is
not about violence, this is not about profanity, this is not
about inappropriate sexual scenes, this is about a technology
that will be provided a particular commercial advantage. That
is what I see this to be. And I think it is absolutely
inappropriate.
And for those that have concerns about children viewing
sex, violence, et cetera, any kind of unacceptable behavior,
there are technologies that are in existence right now. We as a
Committee are intruding ourselves into litigation. Yes, I
understand the gentleman's point regarding that it would not be
used in the sense of a particular discrete lawsuit; however,
let's not kid ourselves. The parties to that particular
litigation are waiting for action and it does create a certain
leverage for Clear Channel in terms of the negotiations,
because I presume that at some point in time reasonable people
will work out an agreement and a settlement will be affected.
Mr. Cannon. Would the gentleman yield?
Thank you. We actually agree on a point here. I believe
this bill gives a technological advantage; at least it makes
clear that one technology is appropriate. I would like to make
clear for the record that doing so doesn't--I think the
gentleman from California was suggesting that there may be some
rationale here for application of this theory as limiting the
theories of law that the other, in this case plaintiffs, those
people who are being sued by the directors and the studios
have; that is, as I review this, I believe that this bill only
adds protection to a particular technology and does nothing to
undermine the theories of the case of the other plaintiffs with
other technologies. And I would like to know if the gentleman
from California, or Mr. Delahunt, you believe anything other
than that.
Mr. Delahunt. Reclaiming my time, I agree with the
gentleman from Utah. This is all about, in my opinion,
providing leverage for negotiations to secure a settlement. It
has nothing to do with the outcome of legislation.
Mr. Berman. Would the gentleman yield?
Mr. Delahunt. Yield to the Ranking Member.
Mr. Berman. Taking up a theme that the gentleman said
earlier and the gentleman from California implied, I guess when
you say it is about sex, violence, and profanity, it is really
about the money. It does create an implication, I suggest,
because the Register of Copyrights says for the copyright
purposes you really don't need this bill, because a fixed copy
isn't created through this filter and therefore it doesn't
violate copyright now.
Now, that is not a comment on the facts of the particular
litigation and the Register acknowledges she hasn't seen the
evidence that is being presented in that case. But when you
have a bill that says do not create a fixed copy of the altered
version, it certainly leaves an implication that if you do
create a fixed copy, you are in bad shape. And so I would argue
that by clear implication from the language of this bill,
people with other kinds of technologies that don't meet the
test of this bill, are in high risk.
Mr. Smith. Would the gentleman yield?
I certainly agree with Mr. Berman if we were to tamper with
or alter permanently with the disc, that would be a copyright
violation. But just for your sake, I think the record ought to
be accurate. A while ago you mentioned Clear Channel instead of
ClearPlay. That happens to be a constituent firm, and I
wouldn't want to involve them in the this debate.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the adoption of the amendment by the
gentleman from California, Mr. Schiff.
Those in favor will say aye.
Opposed, no.
The noes appear to have. The noes have it. The amendment is
not agreed to.
Are there further amendments?
Mr. Schiff. I have a further amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
[The amendment to the amendment in the nature of a
substitute, offered by Mr. Schiff, follows:]
The Clerk. Amendment to the amendment in the nature of a
substitute to H.R. 4586 offered by Mr. Schiff. Add at the end
the following: Section 5----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman from California will be
recognized for 5 minutes.
Mr. Schiff. Mr. Chairman, this is a simple but important
amendment that would provide a 3-year sunset for the
legislation. As has already been pointed out the Register of
Copyrights testified at the Subcommittee that the issues
touched upon in this legislation are currently in the middle of
litigation and negotiation, litigation addressing whether the
manufacture and distribution of such technology violates the
copyright law. And the Lanham Act is in Federal court with a
summary judgment motion still pending.
The parties to the pending litigation include the
commercial providers of various movie filters available, the
movie studies that own the copyrights, and the directors who
are legitimately concerned about their rights as creators. But
more importantly and perhaps more promising, are the serious
ongoing negotiations that have been occurring between the
individual studios and technology providers aimed at resolving
this dispute through mutually acceptable licensing agreements.
Indications are that those negotiations have progressed
substantially well. However, this legislation will surely bring
these negotiations to a complete halt.
By supporting a 3-year sunset, Congress will be sending a
clear message that negotiations should still be taken
seriously. My colleagues on the other side of the aisle have
often urged us to permit the marketplace to resolve a host of
issues. This amendment would do just that. If we provide a
small incentive to the studios and technology providers to work
something out over the next 3 years, a permanent exemption is
not needed.
This amendment would also ensure that Congress can revisit
this issue to make sure there are no unintended consequences.
As we have already heard, the legislation would currently
potentially provide a safe harbor to a company which markets
its product as a means of isolating and enhancing sexual
content for the viewer. And I doubt the proponents of
legislation intended to promote that. It will ensure that
Congress can come back and determine whether this legislation
has indeed had such unintended consequences.
I would urge my colleagues' support.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith.
Mr. Smith. I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. The issue before us today is still what right do
parents have to control what their families see in the privacy
of their own home. If we think that parents should have such
right, there is no justification for limiting those rights. Are
we saying that parents can only protect their children for 3
years? Parents have a moral right and in fact a legal
responsibility to protect their children from offensive
material. Most parents remain heavily involved in the lives of
their children. Why should we limit parental rights to only the
next 3 years?
The Register of Copyrights has already testified that what
one of these companies is doing is legal, not that they are
only legal for a certain number of years. This amendment seems
to ignore the Register's testimony. Also, Mr. Chairman, I don't
know of a single precedent by this full Committee where we have
limited or attempted to limit any right. And I don't think we
should start to by limiting the right of parents to only 3
years.
So I would encourage my colleagues to oppose this
amendment. I yield back.
Chairman Sensenbrenner. The gentlelady from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. I thank the Chairman. I would like to
strike the requisite number of worlds.
Chairman Sensenbrenner. The gentlelady is recognized for 5
minutes.
Ms. Jackson Lee. I will add my comments to incorporate Mr.
Schiff previous amendment which was defeated--I thought that
was certainly an effort of reasonable compromise--and then, of
course, to add my comments on the present amendment that speaks
to this question of a limitation, and combine it with my
concern for the broadness of this legislation and to indicate
that in the past I have been frankly welcoming a legislation
that deals with the prohibition of obscenity and other untoward
activities that might impact children. But in this instance, I
think there are several points that would undermine this
legislation at this point.
One, there is ongoing litigation that may have an alternate
viewpoint. Of course, here we go again. We are trying to thwart
the third branch of government. That will be occurring in the
next 48 hours as we debate legislation on the Marriage
Protection Act. We now want to close the door prematurely and
interfere with ongoing litigation.
Secondarily, I think it is noted that we voted in this
Committee, some of us, on the V-chip which has been working for
a number of years.
And then I want to take my good friend up on his question
of morality, my good friend from Texas. He is absolutely right.
It is a question of morality. What we have heard so often is
that it is a question of parents being parents. Some of us who
are parents realize that those are very challenging
responsibilities. But parents have the opportunity to sit down
with their children and be selective of what is on and what is
not.
The interesting point about this, of course, is that this
is an economically biased legislative initiative. The poor
parents who can't afford this technology will have their
household, I assume, filled up with these bad movies, if you
will, leave them to, I guess, their religious views and their
morality. But the rich folks can go off to the Hamptons and
leave the kids in front of sophisticated technology.
Well, I believe in equal opportunity. Let all parents be
parents, poor people, middle-class people, and rich people.
Leave the technology alone and sit down and tell your kids what
to look at, or turn the TV off, or sit down with them and
discuss the issue.
My concern was there was nudity in ``Schindler's List,''
nude bodies. Are you suggesting there is nothing wrong with
that? There was interracial relationships in Spike Lee's
``Jungle Fever.'' it is all a matter of taste and it is all a
matter of having a family member sit down and deal with their
children. Some of us have been perfect and imperfect. But it is
our responsibility. We can be aided by certain tools, and I
think the V-chip is reasonable. But I would argue at this
point, with ongoing litigation, the fact that this is a
purchased item and therefore some will get it and some won't, I
just think at this point we need further facts and further
study before we support this particular legislation.
But I would support both amendments, one that has been
defeated, but I rise in support of Mr. Schiff's amendment. I
yield back my time.
Chairman Sensenbrenner. Question is on the second Schiff
amendment.
Those in favor will say aye.
Opposed, no.
Noes appear to have it. Noes have it. And the amendment is
not agreed to.
Are there further amendments? The gentleman from Virginia,
Mr. Scott.
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized.
Mr. Scott. I would like to ask the gentleman from
California a couple of questions to make sure I understand
this. This machine that we are allowing to be used is not
content neutral like a VCR or cassette tape, it is movie-
specific, where would you have to buy a subscription to a
specific movie for this thing to work; that is to say, you
can't view the altered version without paying somebody some
money for that specific movie. Is that right?
Mr. Berman. Close to right. Here, what you are doing is
buying a filter, one of a number of filters in the case of
ClearPlay, that are offered for a specific film that will be
used when you show that film, it will be used on your machine,
on your DVD player, and which will then filter out what some
employees at ClearPlay decided should be filtered out. So it is
you buy filters for a specific movie. It is not film neutral.
It does not edit out certain words or certain scenes from all
movies. It is movie specific.
Mr. Scott. To get this movie after this altered version
software, I buy the movie, and then have to pay someone a
subscription fee or money to get this altered software, movie
specific.
Mr. Berman. That is right. A subscription I think that is
actually--that is maybe their business model, subscriptions to
choose which filters for which movies that we have decided we
should create filters for and what--the kinds of things that
our employees are filtering.
Mr. Scott. Obviously you have trademark implications if you
are selling a product which will show a version of a movie and
the people that produce the movie don't get a cut of the
action.
Mr. Berman. That is exactly right.
Mr. Scott. Now, does the pending litigation--would the
outcome of the pending litigation solve this question?
Mr. Berman. Yes. The pending litigation would solve--it
would either say this kind of filtering system does not violate
copyright law, does not violate the Lanham Act trademark law,
or it does. And if it was concluded that it does, than perhaps
we would want to consider--then debate the merits of whether
they should be allowed and we should exempt and under what
conditions we should exempt this kind of technology from
copyright law and trademark law.
Ms. Lofgren. Would the gentleman yield? I think it is
important to clarify that the person who makes the movie, the
DVD, is compensated; because in order to play the movie using
the technology, you either have to buy the DVD or rent the DVD.
So that doesn't change. It is just how you watch it that
changes. I thank the gentleman.
Mr. Scott. I would ask--but to view the different version,
you would have to buy the DVD; but if for some reason you
wouldn't buy it unless you could have the enhancement, movie-
specific enhancement so it would be ``Training Day'' without
cuss words, the without-cuss-words edition, you would have to
pay extra for, and the people who made ``Training Day'' would
not have the editorial decision as to what gets cut out and
what doesn't and they would get no cut of additional money.
Ms. Lofgren. That is correct. If you used your remote to
skip over the parts, or if you went to the refrigerator to get
a beer while they were doing the dirty words, no one would get
a cut of the beer for the altered version.
Mr. Scott. But you didn't have to pay for the use of the
remote control in the VCR.
Mr. Berman. You have to pay for the beer but you don't have
to otherwise pay to go to the refrigerator. The fact is that
altered forms of films are a revenue stream for copyright
owners. And that is why there is a market for films for
airplanes, films for television, and in some cases, by the way,
original cuts for DVDs that aren't shown in the theater. Each
one of those produce revenue streams for the copyright owners
and the creators.
And under the collective bargaining agreements, the
copyright owners must consult with the creators before they
make those, so both as to how it is edited and the revenue
stream, copyright owners traditionally recover additional
monies for that altered version.
Chairman Sensenbrenner. The time of the gentleman has
expired. Are there further amendments?
For what purpose does the gentleman from California seek
recognition?
Mr. Berman. I have an amendment at the desk, amendment
number 2.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment in the nature of a
substitute to H.R. 4586 offered by Mr. Berman.
Page 1, line 15, after----
[The amendment to the amendment in the nature of a
substitute, offered by Mr. Berman, follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman from California will be
recognized for 5 minutes.
Mr. Berman. Thank you, Mr. Chairman.
H.R. 4586 limits the copyright and trademark rights of
movie producers and directors, provides them no compensation or
royalties for those statutory limitations of their rights. It
was just pointed out in the dialogue that the gentleman from
Virginia undertook with Ms. Lofgren and myself.
The stated justification for these limitations on copyright
and trademark rights is to ensure parental access to
technological tools that filter objectionable content in motion
pictures. My amendment will advance these goals in much the
same way. It requires the manufacturers of these filtering
technologies to offer competitors royalty-free licenses to
their technology in order to get the protection from liability
provided by H.R. 4586.
This amendment will ensure the most widespread
dissemination of filtering technologies to parents. It will
ensure the best technologies available from a wide variety of
vendors. If will ensure that parents will not have to pay
monopoly prices for access to that technology. I think my
amendment is fair. And if it is fair to limit the intellectual
property rights associated with movies in order to benefit
parents, then it is fair to the intellectual property rights of
the filtering companies who are filtering without the consent
of the copyright owners and without compensating them in order
to benefit parents. If it is fair to provide movie copyright
and trademark holders with no royalties in exchange for the
loss of their rights, then filtering companies should likewise
expect no royalties for a similar loss. That is my amendment.
Mr. Schiff. I would like to say to my colleague from
California, this is a brilliant amendment. It is very much a
consumer----
Mr. Berman. I didn't think of it.
Mr. Schiff. It is very much a consumer rights amendment. It
expands the benefits for the consumers that the proponents of
the underlying bill purport to be concerned about.
And I do have one question about both the amendment and the
underlying bill, and that is, does the underlying bill permit,
for example, one of the makers of this filter technology to
advertise, buy a filter for ``The Terminator'' and you can
change ``The Terminator'' in this way, or buy a filter for this
movie and basically use the names, use the likenesses, use the
subscription of the films without ever having to compensate the
film makers?
Mr. Berman. It certainly would, unless this bill is amended
to strip that right from these people. And in addition, it
contains a provision prohibiting Federal courts from hearing
first amendment cases. No, it would certainly allow that.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Berman. Yes.
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Texas, Mr. Terminator.
Mr. Smith. Thank you, Mr. Chairman. I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. I really do have some difficulty understanding
the reasoning behind the amendment. It seems to say----
Mr. Berman. Would the gentleman yield? I would like to
repeat the reasoning.
Mr. Smith. It seems to say that American intellectual
property laws that allow directors and studios to profit from
their work for 95 years do not apply to those who create other
forms of intellectual property. I recognize that some in
Hollywood disagree with what companies like ClearPlay and
others are doing, and that is certainly their right. But should
we then stop such companies from offering their technology to
interested parents by legislating a taking of a company's
intellectual property?
I have not seen any justification as to why this Committee
should legislate the taking of someone else's intellectual
property simply because someone in Hollywood doesn't like them.
What is good for the goose is good for the gander. Perhaps we
should require movie studios to offer free licenses to all who
want to watch their movies because some people this country
don't like the movies made in Hollywood. I urge my colleagues
to oppose the amendment.
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. I would like to observe that on a Committee of
37 men and women, all but four of whom are lawyers, how we
could be taking a matter that has been filed in a Federal court
since August 2002--and we know that negotiations are ongoing--
and passed a law dealing with the specific issues that are in
the litigation is beyond me. Can any Member in this case
explain to me why we are doing this? This is so exceptional
that I would seek an explanation if there is one. And I would
yield to anyone.
Mr. Berman. Thank you, John.
My friend, the Chairman of the Subcommittee's point, you
made my point. I view this bill as a taking. This is not simply
about what is cut, what is obliterated from the creator's work,
it is about whether the creator is entitled to any stream of
revenue for the altered version of his work. And you will--I am
saying if it is good for the goose, it is good for the gander.
If you are going to have a taking of the creator's artistic
rights and the copyright owner's rights, then let's have a
compulsory royalty-free license for the creators of this
technology, because our goal is to protect the children.
Chairman Sensenbrenner. The question is on the Berman
amendment to the amendment in the nature of a substitute.
Those in favor will say aye.
Opposed, no.
Noes appear to have it. Noes have it. The amendment amount
is not agreed to.
Mr. Berman. Move to strike the last word.
Chairman Sensenbrenner. We are running out of time.
Mr. Berman. I am going to have raise one issue. Then we
will go to a vote.
The Chairman. The gentleman is recognized for 5 minutes.
Mr. Berman. Thank you, Mr. Chairman. There is a concern
that hasn't been raised by any amendment, that I will not offer
as an amendment, that while this is entitled the Family Movie
Act, it covers more than movies, could cover live over-the-air
television programming, and that it immunizes from liability
companies that manufacture technology to edit TV programs,
including commercial stripping.
In other words, this might, this bill might well legalize
the elimination of a fairly common business model, which is
over-the-air commercial television. And without trying to
debate that issue now, I am just wondering if the Chairman
might be willing to consider working through this issue to see
if--what his intent would be with respect to that possibility.
Chairman Sensenbrenner. Would the gentleman yield?
The answer is yes, we will in work to consider this, with
no promises being made as to a result.
Mr. Berman. Well, that is quite an offer. Maybe I can keep
you engaged.
Chairman Sensenbrenner. The Chair is always happy to be
engaged with the gentleman from California.
If there are no further amendments, without objection, the
Subcommittee amendment in the nature of the substitute laid
down as the base text is amended as adopted. A reporting quorum
is present.
The question occurs on the motion to report the bill, H.R.
4586, favorably, as amended.
All in favor will say aye.
Opposed, no.
Ayes appear to have it.
Mr. Berman. rollcall.
Chairman Sensenbrenner. A rollcall is ordered. Those in
favor of reporting the bill favorably, as amended, will answer
aye. Those opposed will answer no.
The Clerk. Mr. Hyde.
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Mr. Bachus.
[No response.]
The Clerk. Mr. Hostettler.
[No response.]
The Clerk. Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Mr. Keller.
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Ms. Hart.
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye.
Mr. Flake.
[No response.]
The Clerk. Mr. Pence.
[No response.]
The Clerk. Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King, aye.
Mr. Carter.
Mr. Carter. Aye.
The Clerk. Mr. Carter, aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye.
Mrs. Blackburn.
Mrs. Blackburn. Aye.
The Clerk. Mrs. Blackburn, aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers, no.
Mr. Berman.
Mr. Berman. No.
The Clerk. Mr. Berman, no.
Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt.
Mr. Watt. Pass.
The Clerk. Mr. Watt, pass.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Ms. Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Ms. Waters.
Ms. Waters. No.
The Clerk. Ms. Waters, no.
Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
[No response.]
The Clerk. Ms. Baldwin.
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no.
Mr. Weiner.
[No response.]
The Clerk. Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members in the chamber who wish to
cast or change their vote? If not, the clerk will report.
The gentleman from North Carolina, Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt, no.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
The Clerk. There are 18 ayes, and 9 noes.
Chairman Sensenbrenner. The motion to report favorably, as
amended, is agreed to. Without objection, the bill will be
reported favorably to the House in the form of a single
amendment in the nature of a substitute incorporating the
amendments adopted here today.
Without objection, the Chairman is authorized to go to
conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
All Members will be given 2 days as provided by House rules
in which to submit additional dissenting, supplemental, or
minority views.
The purpose for which this meeting has been called having
been accomplished, the Committee stands adjourned.
[Whereupon, at 12:00 p.m., the Committee was adjourned.]
Dissenting Views
We strongly oppose H.R. 4586, the ``Family Movie Act of
2004.'' With the purported goal of sanitizing undesired content
in motion pictures, H.R. 4586 immunizes from copyright and
trademark liability any for-profit companies that develop
movie-editing software to make content imperceptible without
permission from the movies' creators.\1\ H.R. 4586 takes sides
in a private lawsuit, interferes with marketplace negotiations,
fails to achieve its goal, is unnecessary and overbroad, may
increase the level of undesired content, and impinges on
artistic freedom and rights.
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\1\ H.R. 4586, the ``Family Movie Act of 2004,'' 108th Cong., 2d
Sess. (2004). The bill's proponents refer to movies that have been
sanitized of what they consider to be offensive content as ``family
friendly.''
---------------------------------------------------------------------------
The bill's proponents would have us believe that this bill
is about whether children should be forced to watch undesired
content, but it is not. The issue in this debate is who should
make editorial decisions about what movie content children see:
parents or a for-profit company. Supporters of H.R. 4586
believe companies should be allowed to do the editing for
profit, and without permission of film creators, while
opponents believe parents are the best qualified to know what
their children should not see. The legislation would accomplish
little beyond inflaming the debate over indecent content in
popular media and interfering with marketplace solutions to
parental concerns.
That is why H.R. 4586 is opposed by: (1) entities concerned
with the intellectual property and artistic rights of creators,
including the Directors Guild of America,\2\ the Motion Picture
Association of America,\3\ and the Dean of the UCLA Film
School; \4\ and (2) experts on copyright law, such as the
Register of Copyrights.\5\
---------------------------------------------------------------------------
\2\ See Derivative Rights, Moral Rights, and Movie Filtering
Technology: Hearing Before the Subcomm. on Courts, the Internet, and
Intellectual Property of the House Comm. on the Judiciary, 108th Cong.,
2d Sess. 86 (May 20, 2004) (written statement of Taylor Hackford,
Directors Guild of America) [hereinafter May 20, 2004 Hearing].
\3\ Family Movie Act of 2004: Hearing on H.R. 4586 Before the
Subcomm. on Courts, the Internet, and Intellectual Property of the
House Comm. on the Judiciary, 108th Cong., 2d Sess. 67-70 (June 17,
2004) (statement of Jack Valenti, President and Chief Executive
Officer, Motion Picture Ass'n of America) [hereinafter H.R. 4586
Hearing]
\4\ Declaration of Dean Robert Rosen In Support of the Director
Parties' Opposition to ClearPlay, Inc.'s, Trilogy Studios, Inc.'s, and
Family Shield Technologies, LLC's Motion for Summary Judgment, Huntsman
v. Soderbergh (D. Colo.) (02-M-1662) [hereinafter Rosen Decl.].
\5\ H.R. 4586 Hearing at 6 (statement of Marybeth Peters, Register
of Copyrights).
---------------------------------------------------------------------------
A. H.R. 4586 WOULD IMPROPERLY INTERFERE WITH PENDING LITIGATION AND
PREMATURELY TERMINATE MARKETPLACE NEGOTIATIONS TO SETTLE THE DISPUTE
As a preliminary matter, the legislation is inappropriate
because it not only addresses the primary issues in a pending
lawsuit but also takes sides with one of the parties to that
suit. The U.S. District Court for the District of Colorado
currently has before it a case that began as an action brought
by a company called Clean Flicks against directors of
movies.\6\ Clean Flicks sought a declaratory judgment against
several directors that its business practice of providing
edited versions of movies to consumers does not violate the
rights of those who own the copyrights and trademarks for the
original movies.\7\
---------------------------------------------------------------------------
\6\ Huntsman v. Soderbergh, No. 02-M-1662 (D. Colo. filed Aug. 29,
2002). The parties are awaiting a ruling on a motion for summary
judgment.
\7\ Complaint and Jury Demand, Huntsman v. Soderbergh (D. Colo.)
(No. 02-M-1662).
---------------------------------------------------------------------------
In the course of litigation, the number of parties
expanded. Because Clean Flicks claimed that its conduct was
lawful under the Copyright Act, the directors sought to join
the movie studios in the dispute. In addition, a Utah-based
company known as ClearPlay joined on the side of Clean Flicks.
ClearPlay employees view motion pictures and create software
filters that tag scenes they find offensive in each movie; this
editing is done without notice to or permission from the
copyright owners (the movie studios) or movie directors.\8\
When downloaded to a specially-adapted DVD player, the
ClearPlay software filter instructs the player to ``skip and
mute'' the tagged content when the affiliated DVD movie is
played. Consumers who play a DVD they have rented or purchased
would thus not see or hear the scenes that ClearPlay has tagged
for filtering.
---------------------------------------------------------------------------
\8\ ClearPlay has fourteen filter settings: (1) strong action
violence, (2) gory/brutal violence, (3) disturbing images (i.e.,
macabre and bloody images), (4) sensual content, (5) crude sexual
content, (6) nudity (including art), (7) explicit sexual situations,
(8) vain references to deity, (9) crude language and humor, (10) ethnic
and racial slurs, (11) cursing, (12) strong profanity, (13) graphic
vulgarity, and (14) explicit drug use.
---------------------------------------------------------------------------
The bill directly addresses copyright and trademark issues
raised in the case and inappropriately takes the side of one
party. First, the content creators allege in the lawsuit that
ClearPlay makes derivative works in violation of the Copyright
Act; in particular, they argue ClearPlay's editing software
violates their exclusive rights as movie copyright owners to
make modifications or other derivations of the original
movies.\9\
---------------------------------------------------------------------------
\9\ See The Player Control Parties' Opening Brief in Support of
Their Motion for Summary Judgment, Huntsman v. Soderbergh (D. Colo.)
(No. 02-M-1662). Section 106(2) of title 17, United States Code, gives
to authors the exclusive right to ``prepare derivative works based on
the copyrighted work.'' The Copyright Act further defines a
``derivative work'' as ``a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications,
which, as a whole, represent an original work of authorship, is a
`derivative work.' '' 17 U.S.C. Sec. 101.
---------------------------------------------------------------------------
The Register of Copyrights has testified as to her opinion about the
copyright issues involved in the case. The Register believes that
infringement of the exclusive right under 17 U.S.C. Sec. 106(2) to make
derivative works requires creation of a fixed copy of a derivative
work. H.R. 4586 Hearing at 7. While the Register's opinion clearly
bears much authority, it is neither binding on a court nor dispositive
of the pending lawsuit. Due to the novelty of both the legal and
technological issues involved, the court may very well reach a
different conclusion from that drawn by the Register.
Though no court has ruled on this issue, the bill would
assist ClearPlay by preemptively vitiating this legal claim. It
would amend the law to state that certain technology which
makes portions of motion picture content imperceptible during
playback does not violate copyright law. While not benefitting
Clean Flicks and certain other defendants, the bill is
specifically designed to legalize ClearPlay technology.
Second, film directors claim that ClearPlay violates their
trademark rights under section 43(a) of the Lanham Act.\10\ The
directors allege that ClearPlay uses their trademarked names in
a way that is likely to cause confusion as to the affiliation,
connection, or association of ClearPlay with the director, or
as to the origin, sponsorship, or approval of ClearPlay by the
director.\11\ Their allegation is based on the fact that a
ClearPlay-sanitized film still indicates the name of the
director, making it incorrectly appear as if the director has
approved the sanitized version.
---------------------------------------------------------------------------
\10\ See The Player Control Parties' Opening Brief in Support of
Their Motion for Summary Judgment, Huntsman v. Soderbergh (D. Colo.)
(No. 02-M-1662).
\11\ See 15 U.S.C. Sec. 1125(a)(1).
---------------------------------------------------------------------------
As with the copyright claims against ClearPlay, the bill
would usurp judicial consideration of the trademark claims
against ClearPlay by legalizing the very conduct at issue in
the pending litigation. The bill would make it legal under
trademark law to sell a product that alters a work and then
still attribute that work to the original's creator. The effect
would again be to specifically benefit one party, ClearPlay, to
the detriment of all others involved in pending litigation.
In summary, the directors and movie studios have non-
frivolous legal claims against ClearPlay. Because the case has
not proceeded past the most preliminary stages at the trial
level, there has not been any statutory interpretation, let
alone a problematic one, that would justify a legislative
solution. In other words, the law has yet to be interpreted in
this area, so there is no rational basis for Congress to pass
legislation that eliminates certain copyright and trademark
rights that are at issue between specific parties.
Passage of this legislation is even more problematic
considering that, over the past year, movie creators have
negotiated in good faith to settle their dispute with
ClearPlay. The movie creators had offered ClearPlay terms that
would allow it to deploy its technology without fear of
copyright or trademark liability.\12\ Unfortunately, due to the
two hearings on this issue and the movement of H.R. 4586, those
negotiations have stalled; ClearPlay has been emboldened to
present several new demands that represent a significant step
back from its previous positions. The growing prospects for a
legislative fix have caused ClearPlay to abandon good-faith
negotiation and have made it less likely that consumers will
have the choices the bill's proponents allegedly desire.
---------------------------------------------------------------------------
\12\ Despite the extremely complicated nature of these
negotiations, they had proceeded quite far. In December 2003, the DGA
agreed not to object under its collective bargaining agreement if the
studios offered ClearPlay a license to utilize the edits contained in
television and airplane versions of movies. The DGA believed this
compromise was tolerable because a film's director usually makes the
necessary edits for television and airplane versions and is able to
control the integrity of such edited versions. Over the course of the
next several months, the studios conveyed an offer along these lines to
ClearPlay.
---------------------------------------------------------------------------
More recently, ClearPlay presented the studios with a counteroffer.
The studios forwarded this counteroffer to the DGA for its response. In
a May 29, 2004 response, the DGA relaxed certain limitations on a
previous agreement to allow ClearPlay to license the television and
airplane versions of movies. Rather than accept this offer, or present
a good-faith counteroffer, ClearPlay apparently has enlarged its
demands: (1) for movies where, no airplane or television version is
available, it has sought the ability to edit them; and (2) with regard
to films for which television or airplane versions have been made
available, it is asking that it be able to make its own edits, rather
than use the pre-existing edited versions.
In short, fundamental fairness prohibits Congress from
passing legislation to influence a pending case and private
business negotiations. As a matter of equity, it is unfair to
change the rules in the middle of the game, particularly to
help one specific entity; if passed, H.R. 4586 would be an
unfortunate example of such unfairness. For these reasons, H.R.
4586 should not be considered while litigation is pending.\13\
---------------------------------------------------------------------------
\13\ See H.R. 4586 Hearing at 8 (statement of Marybeth Peters,
Register of Copyrights) (``I do not believe that such legislation
should be enacted--and certainly not at this time. As you know,
litigation addressing whether the manufacture and distribution of such
software violates the copyright law and the Lanham Act is currently
pending in the United States District Court for the District of
Colorado. A summary judgment motion is pending. The court has not yet
ruled on the merits. Nor has a preliminary injunction been issued--or
even sought.'')
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B. H.R. 4586 IS UNNECESSARY
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:
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\
---------------------------------------------------------------------------
\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\ 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.
---------------------------------------------------------------------------
\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.
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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\ 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 an
H.R. 4586 supporter who looked forward to a day when ``the
industry will get around to issue us age-appropriate
products.'' \17\
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\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.
\17\ H.R. 4586 Hearing at 15 (statement of Amitai Etzioni, Founder
and Director, The Institute for Communitarian Policy Studies, George
Washington University).
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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\ 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:
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\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\
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\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.
C. H.R. 4586 WOULD LEGALIZE EDITING THAT IS INCOMPREHENSIBLE AND
OVERBROAD AND WOULD LEAD TO AN INCREASE IN UNDESIRED CONTENT
H.R. 4586 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\
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\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,
H.R. 4586 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:
LA 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\
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\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.
LA filter that skips over the nude scenes from
Schindler's List, scenes that are critical to conveying
the debasement and dehumanization suffered by
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concentration camp prisoners;
LA filter that strips Jungle Fever of scenes
showing interracial romance and leaves only those
scenes depicting interracial conflict; and
LA filter marketed by Holocaust revisionists
that removes from World War II documentaries any
footage of concentration camp.
The legislation also would immunize products that filter
political or business content based on the opinions of the
creator, including:
LA filter that skips over political
advertisements contrary to the positions of the
developer's beliefs;
LA filter that cleanses news stories, such as
by editing out comments in support of or in opposition
to government policies; and
LA 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 the full
Committee markup of the legislation, the sponsors rejected an
effort to limit the proposal to its purported scope of profane,
sexual, and violent content.\22\ If enacted, H.R. 4586 could
lead to the editing of artistic works based upon racial,
religious, social, political, and business biases.
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\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.
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Moreover, the bill would permit the editing of works other
than movies. While the bill's author argues that its purpose is
to sanitize movies,\23\ a close reading of the legislation
shows that it would permit the editing of broadcast television
programming, as well. More specifically, H.R. 4586 permits the
``making of limited portions of audio or video content of a
motion picture imperceptible.'' \24\ The copyright law defines
``motion pictures'' as ``audiovisual works consisting of a
series of related images which, when shown in succession,
impart an impression of motion, together with accompanying
sounds, if any.'' \25\ Because this definition includes
television programs,\26\ the legislation would permit editing
of broadcast television.
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\23\ H.R. 4586 Markup (statement of Rep. Lamar Smith (R-TX)).
\24\ H.R. 4586.
\25\ 17 U.S.C. Sec. 101.
\26\ H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976) (House report
on the 1976 Copyright Act).
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As a result, the bill would legalize a filter that skips,
for instance, all commercial advertisements during playback of
free, over-the-air broadcast television programming. The
revenues that broadcast television companies generate from
selling commercial advertisement time is the sole means by
which television programming is financed.\27\ Permitting
television commercials to be deleted would reduce the ability
of television programmers to sell ad time and thus make it
financially difficult for television stations to remain in
business. Consumers across the country would thus be deprived
of a prime and free source of news, entertainment, and other
information.
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\27\ In the Matter of Commission Seeks Public Comment on Spectrum
Policy Task Force Report: Joint Reply Comments of the Association for
Maximum Service Television, Inc. and the National Association of
Broadcasters Before the Federal Communications Comm'n, ET Docket No.
02-135 13 (Feb. 28, 2003).
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Finally, the legislation could lead to increased violence
and sexual content in entertainment. Just as H.R. 4586 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.\28\
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\28\ 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) .
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Additionally, because H.R. 4586 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.\29\ If Nissim's claims are valid, then only
Nissim could distribute such film-editing software.\30\ Thus,
contrary to its stated purpose, H.R. 4586 could succeed in
legalizing only Nissam's technology, which enables users to
increase the proportion of sex or violence in a movie.
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\29\ Nissim Corp. v. ClearPlay, No. 04-21140 (S.D. Fla. filed May
13, 2004).
\30\ In response to a cease-and-desist letter from Nissim, a
manufacturer of DVD players, Thomson, pulled ClearPlay-enabled players
from the retail market.
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D. H.R. 4586 WOULD IMPAIR ARTISTIC FREEDOM AND INTEGRITY
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.\31\ The National Endowment for the Arts states
``[a]rtistic work and freedom of expression are a vital part of
any democratic society.'' \32\ For this reason, the NEA seeks
to preserve works of art,\33\ and an important part of
preservation is to ensure artists are involved in how their
creations are portrayed.
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\31\ 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.'').
\32\ National Endowment for the Arts, Strategic Plan: FY2003-2008 3
(Feb. 2003).
\33\ Id. at 8.
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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.'' \34\ The United States, recognizing the
importance of this right, subsequently enacted it into both
copyright law \35\ and trademark law.\36\
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\34\ Berne Convention for the Protection of Literary and Artistic
Works, art. 6bis, 1971.
\35\ 17 U.S.C. Sec. 106A.
\36\ 15 U.S.C. Sec. 1125.
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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.\37\ By limiting the availability of Lanham
Act suits, H.R. 4586 is limiting the moral rights of directors
in a way that conflicts with U.S. obligations under the Berne
Convention.
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\37\ 133 Cong. Rec. H1293 (daily ed. Mar. 16, 1987) (statement of
Rep. Robert Kastenmeier).
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Contrary to our laws and international obligations, H.R.
4586 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.\38\
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\38\ H.R. 4586 Hearing at 10 (written statement of Marybeth
Peters).
It is clear, therefore, that the legislation violates 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, H.R. 4586 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. For these
reasons, we dissent.
John Conyers, Jr.
Howard L. Berman.
Robert C. Scott.
Sheila Jackson Lee.
Maxine Waters.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
