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109th Congress Rept. 109-33
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005
_______
April 12, 2005.--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
MINORITY VIEWS
[To accompany S. 167]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(S. 167) to provide for the protection of intellectual property
rights, and for other purposes, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Materials Submitted for the Record............................... 8
Hearings......................................................... 19
Committee Consideration.......................................... 19
Vote of the Committee............................................ 19
Committee Oversight Findings..................................... 19
New Budget Authority and Tax Expenditures........................ 19
Congressional Budget Office Cost Estimate........................ 19
Performance Goals and Objectives................................. 22
Constitutional Authority Statement............................... 23
Section-by-Section Analysis and Discussion....................... 23
Changes in Existing Law Made by the Bill, as Reported............ 24
Committee Jurisdiction Letters................................... 37
Markup Transcript................................................ 39
Minority Views................................................... 69
Purpose and Summary
S. 167 penalizes those who camcord motion pictures in movie
theaters; creates civil and criminal penalties for those who
willfully distribute pre-release works; clarifies the legal
status of certain services and technologies that enable
individuals to skip and mute content on certain works in the
privacy of their own home; reauthorizes the National Film
Preservation Board and Foundation; and corrects a technical
error in the ``Sonny Bono Copyright Term Extension Act'' that
limited library and archive access to certain works during the
last 20 years of term.
Background and Need for the Legislation
Testimony received at several Congressional hearings
highlighted the need for the different Titles of this
legislation, which is similar to portions of H.R. 4077, H.R.
4586, and S. 2391 of the 108th Congress. The legislation is
also a companion to H.R. 357, introduced by Congressman Lamar
Smith during the 109th Congress.
Title I of the Act is similar to S. 1932 and Sec. 8 of H.R.
4077 from the 108th Congress. This title is the ``Artists
Rights and Theft Prevention Act of 2005.'' Section 102 of Title
I creates a new Sec. 2319B in Title 18, of the United States
Code prohibiting the act of using or attempting to use an
audiovisual recording device to transmit or make a copy of a
motion picture or other audiovisual work in a motion picture
exhibition facility. The new section is modeled after the
existing ``anti-bootlegging'' statute found in Sec. 2319A of
Title 18, of the United States Code which prohibits the
unauthorized recording of, and trafficking in, sound recordings
and music videos from live musical performances.
This new provision deals with the very specific problem of
illicit ``camcording'' of motion pictures in motion picture
exhibition facilities. Typically, an offender attends a pre-
opening ``screening'' or a first-weekend theatrical release,
and uses sophisticated digital equipment to record the movie. A
camcorded version is then sold to a local production factory or
to an overseas producer where it is converted into DVDs or
similar products and sold on the street for a few dollars per
copy. This misuse of camcorders is a significant factor in the
estimated $3.5 billion in annual losses the movie industry
suffers because of hard-goods piracy.
Causing greater financial harm, these camcorded versions
are posted on the Internet through certain peer-to-peer
networks and made available for millions of users to download.
According to studies by the Motion Picture Association of
America (``MPAA''), camcorded versions of movies in theatrical
release account for more than 90 percent of the first copies of
motion pictures illegally distributed on the Internet. S. 167
will provide prosecutors with resources to stem the piracy of
commercially valuable motion pictures at its source.
The Act would not, and is not intended to, reach the
conduct of a person who uses a camera, picture phone, or other
photographic device to capture a still photo from an exhibition
of a motion picture. Rather, the Act reaches the conduct of a
person who uses an audiovisual recording device to capture or
transmit a ``series of related images that are intrinsically
intended to be shown by the use of machines or devices such as
projectors, viewers, or electronic equipment, together with
accompanying sounds, if any.'' \1\
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\1\ 17 U.S.C. Sec. 101.
---------------------------------------------------------------------------
Notwithstanding this clarification, nothing in this
legislation shall be interpreted to suggest that taking
photographs in a movie theater is in any way condoned. Engaging
in such conduct could still subject a person to civil or
criminal liability under the Copyright Act. However, this
provision is drafted narrowly to address the specific and
pernicious problem of ``camcording'' copyrighted motion
pictures.
In addition, the bill makes clear that ``possession of an
audiovisual device in a motion picture exhibition facility may
be considered as evidence in any proceeding involving this
offense, but shall not, by itself, constitute sufficient
evidence to support a conviction of this offense.'' The
Committee recognizes that the fact that someone has brought an
audiovisual device may be critical evidence in a case against
that person under this section. For example, smuggling a high-
quality miniature camera and recording equipment into a movie
theater may be highly probative of the intent to camcord.
However, the Committee does not intend that the ``attempt''
language be used to convict, for example, a tourist who ends a
day of sightseeing by bringing his camcorder to a motion
picture theater but does not attempt to use it to record or
transmit a motion picture. This language is intended to guard
against such an injustice.
Further, the bill is not intended to permit a prosecution
of, for instance, a salesperson at a store who uses a camcorder
to record portions of a movie playing to demonstrate the
capabilities of a widescreen television. The offense is only
applicable to transmitting or copying a movie in a motion
picture exhibition facility, which has to be a movie theater or
similar venue ``that is being used primarily for the exhibition
of a copyrighted motion picture.'' In the example of the
salesperson, the store is being used primarily to sell
electronic equipment, not to exhibit motion pictures. (For the
same reason, the statute would not cover a university student
who records a short segment of a film being shown in film
class, as the venue is being used primarily as a classroom, and
not as a motion picture exhibition facility.)
Moreover, Sec. 102 is not intended to permit prosecution of
individuals making camcorded copies of movies off their
television screens. The definition of a motion picture
exhibition facility includes the concept that the exhibition
must be ``open to the public or is made to an assembled group
of viewers outside of a normal circle of a family and its
social acquaintances.'' This definition makes clear that
someone recording from a television in his home does not meet
that definition.
It is important to emphasize that the clause ``open to the
public'' applies specifically to the exhibition, not to the
facility. An exhibition in a place open to the public that is
itself not made to the public is not the subject of this bill.
Thus, for example, a university film lab may be ``open to the
public.'' However, a student who is watching a film in that lab
for his or her own study or research would not be engaging in
an exhibition that is ``open to the public.'' Thus, if that
student copied an excerpt from such an exhibition, he or she
would not be subject to liability under this Section.
The Committee will oversee the Justice Department to ensure
that it exercises appropriate prosecutorial discretion when
enforcing Sec. 102 of S. 167. While ``fair use'' is not a
defense against a Sec. 2319(B) violation, Federal prosecutors
should use their discretion not to bring criminal prosecutions
against activities within movie theaters that would constitute
fair use under the copyright laws. Additionally, prosecutors
should consider whether a potential defendant was on notice
that camcording violated the law. The Committee appreciates the
commitment by the National Association of Theatre Owners (NATO)
and MPAA to make available to every motion picture theater in
the United States a conspicuous sign informing patrons that
camcording in the theater is punishable by a Federal criminal
penalty. The Committee fully expects that NATO and the MPAA
will abide by that commitment. The posting of such a warning
will serve as an important factor to help authorities determine
whether a prosecution under this statute would be appropriate.
An immunity provision has been included for good faith
efforts by theater owners and other associated individuals to
detain in a reasonable manner those they suspected of
camcording. This provision and the reasonableness test should
be viewed as a companion to shopkeeper privilege statutes found
in all States. This section does not pre-empt any State laws.
Section 103 creates a criminal penalty for the willful
distribution of works being prepared for commercial
distribution. The Committee has been made aware of numerous
examples of efforts to camcord new movies during their opening
days of release followed immediately by either mass duplication
and distribution of DVD copies or Internet distribution of the
same movie. Although the harm to the distribution of physical
or Internet copies of works when legal copies are available has
long been established, the Committee notes the larger harm
caused by those who distribute copies of works even before they
are legally available to the consumer. Moreover, the Committee
is aware of pre-release activity surrounding the creation and
duplication of physical advertising signs prior to their
initial installation. Finally, the Committee is aware of, and
encouraged by, Department of Justice investigations and
prosecutions of pre-release cases involving motion pictures,
sound recordings, business software, videogame software, and
book publications once the works have been released in final
form. Section 103 will ensure that there is a specific penalty
for such illegal pre-release activity.
Section 104 expressly requires the Register of Copyrights
to issue regulations to establish a preregistration system for
copyrighted works. Since works are generally not formally
copyrighted until they are in final form and ready for
distribution to the public, civil remedies for the distribution
of pre-release works are lacking. This section will give the
Register flexibility to determine which classes of works are
appropriate for preregistration. The Committee believes that a
class of work with only a few instances of infringement prior
to authorized commercial distribution do not meet the test of a
``history of infringement,'' but otherwise leaves the decision
to the discretion of the Register.
To encourage and ensure that preregistered works are
formally registered when they are ready for such a filing, the
new 17 U.S.C. Sec. 408(f)(4) created by Sec. 104 limits civil
suits in certain circumstances. By its express terms, the
prohibition on infringement suits contained in Sec. 408(f)(4)
does not apply to suits concerning infringements commencing
later than 2 months after first publication of a copyrighted
work that had been preregistered with the Copyright Office.
Therefore, notwithstanding a failure to meet the deadlines set
forth in Sec. 408(f)(4)(A) and (B), a copyright owner of a
preregistered work can register his or her work under current
law and bring infringement actions for infringements occurring
more than 2 months after first publication.
Further, a preregistration of a sound recording does not by
itself constitute preregistration of the musical works embodied
in the sound recording. Accordingly, a later infringement of a
musical work contained in a preregistered sound recording would
not be subject to the dismissal provision in Sec. 408(f)(4)
based on the preregistration of the sound recording.
Section 105 directs the United States Sentencing Commission
to review and update, if appropriate, the sentencing guidelines
and policy statements surrounding several intellectual property
rights crimes. The Commission has previously and successfully
updated the guidelines to account for changes in the manner of
intellectual property piracy. The Committee has included
Sec. 105 because of the unique harms and aspects related to the
infringement of pre-release works. The existing guidelines
allow for an increase in the base level offense in certain
circumstances.\2\ Although the guidelines highlight two reasons
for consideration of upward departures, the specific and
magnified harms caused by the display, performance,
publication, reproduction or distribution of a pre-release work
appear to warrant their inclusion as a third reason for upward
departure.
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\2\ Sec. 2B5.3 (b).
---------------------------------------------------------------------------
Title II of the legislation includes text based upon
legislation from the 108th Congress, H.R. 4586, the ``Family
Movie Act of 2004.'' The Committee strongly believes that,
subject to certain conditions, copyright and trademark law
should not be used to limit a parent's right to control what
their children watch in the privacy of their own home. A
dispute involving this issue is currently being heard in the
U.S. District Court for the District of Colorado.\3\ Testimony
provided by the Register on June 17, 2004, makes clear that
some parties to the suit should not face liability for their
current actions, while others appear to be in violation of
existing copyright law. The ``Family Movie Act'' clarifies the
liability, if any, for the companies that are a party to this
case and to other companies not a party to this case that may
be interested in providing such services in the future.
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\3\ Huntsman v. Soderbergh, 180 F.3d 1072 (9th Cir.)
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Objections to this legislation centered on four issues:
1. A desire to limit the content that could be skipped
to a narrow type of content for specific reasons and/or
purposes;
2. The for-profit nature of some of the companies that
offer such services;
3. The impact upon television advertising in
commercial, over-the-air broadcasts;
4. The impact upon the moral rights of the director.
To respect the First Amendment of the Constitution, the
``Family Movie Act'' is drafted in a content-neutral manner so
that its operation and impact do not depend upon whether the
content that was made imperceptible contains items that are
often viewed as offensive, such as profanity, violence, or
sexual acts. This content-neutrality also pertains to content
made imperceptible that is rarely, if ever, viewed as
offensive. The goal of the legislation has been to give the
viewer the ability to make imperceptible limited portions of
work that he or she chooses not to see for themselves or their
family, whether or not the skipped content is viewed as
objectionable by most, many, few, or even one viewer. Efforts
to limit the application of the legislation to specific types
of content were rejected by the Committee for First Amendment
reasons.
The for-profit nature of the entities providing services to
the public that the legislation addresses has no bearing on the
operation of the immunity from liability. The Committee is
unable to discern a credible basis for creating a distinction
between the for-profit or non-profit nature of companies that
offer services covered by the Act. The vast majority of movies
are made by for-profit companies. In addition, many motion
picture companies now partner with advertisers to embed
advertising within a movie. Television broadcasts of major
sporting events often contain embedded advertising that in some
cases appear to be part of the stadium hosting the event. Few,
if any, disclosures are even made to all of the viewers that
this is occurring and that they are seeing a modified version
of the actual event. There is of course no option given to
viewers to stop these for-profit entities from making such
changes.
One difference between this version of the ``Family Movie
Act'' and the version that passed the House in the 108th
Congress is the deletion of a reference in Sec. 112 of H.R.
4077 to commercial advertisements and network or station
promotional announcements. The Committee is aware of some
dispute concerning automated television commercial-skipping
devices. A copy of an exchange of letters between the Committee
and the Register is attached. The Committee concurs with the
Register's determination that this Act has no bearing on either
the legality or illegality of such services or any litigation
over the issue.
Although the Committee has not adopted a specific
percentage or quantity of time test in place of the ``limited
portions'' language, the Committee will rely upon judicial
determination for what is a ``limited portion'' of the work as
a whole. It would be contrary to the legislation to interpret
the ``limited portions'' test in a manner that would exclude
actions that result in making imperceptible of 20 minutes of a
particular type of content (violence, sexual scenes, profanity,
etc.) from a 100-minute motion picture. The 20-minute exclusion
may in fact remove 100 percent of one or more types of such
content in a movie, but it represents only 20 percent of the
total running time of the movie, easily satisfying the plain
meaning of ``limited portions.''
The plain meaning of S. 167 exempts actions brought under
U.S. copyright and trademark law the ``making imperceptible . .
. of limited portions of audio or video content'' provided no
fixed copy is created. The Act does not create an exemption for
actions that result in fixed copies of altered works. The
Committee is aware of services and companies that create fixed
derivative copies of motion pictures and believes that such
practices are illegal under the Copyright Act.
The Committee is aware of concerns regarding the
legislation's impact upon moral rights, particularly those of
movie directors. The Committee had hoped to receive testimony
from a representative of the director's community on this issue
at one of the Committee hearings on the issue, but no director
was willing to testify. The Committee is aware of numerous
motion pictures being edited for screen size, content, and time
purposes with or without the director's consent so that a
motion picture can be displayed on the 4 3 aspect ratios of
standard definition televisions, on an airplane with
objectionable language removed, and on television channels in
the traditional 90 or 120-minute time slots. The Committee sees
no difference between the impact upon the moral rights of
directors of such modifications and someone wanting to prevent
certain content from being displayed on their television.
Finally, the Committee notes the failure of private sector
negotiations with respect to one editing service to resolve the
Huntsman v. Soderbergh civil suit. Although private sector
negotiations and out-of-court settlements are an important part
of the legal process, they cannot be expected to create a
lasting solution when one party to the case is repeatedly
burdened with the sole responsibility of traveling to all of
the parties in the case to seek a settlement. Had some of the
parties to the litigation have been more willing to act in good
faith and resolve their differences out of court, the need for
this legislation for at least one party would have been
eliminated.
Title III of the legislation reauthorizes the National Film
Preservation Board (``Board'') and makes changes to the
structure of the Board. It also reauthorizes the National Film
Preservation Foundation (``Foundation'') with a corresponding
authorization of Congressional funding for the program. The
authorization for both had expired previously. The Committee
expects the Board and Foundation to continue their effort to
preserve older works and hopes that those companies and
individuals who work in the motion picture business will be the
primary source of donations to the Foundation.
Title IV of the legislation fixes a technical, cross
reference error in Sec. 104 of the 1998 ``Sonny Bono Copyright
Term Extension Act'' \4\ that inadvertently limited access by
libraries and archives to certain categories of works during
the last 20 of a term. The Committee has confirmed with the
relevant groups that the addition of ``(h)'' to Sec. 108(i) of
Title 17 is appropriate and that it was inadvertently omitted
from the 1998 Act. This is important because it limited library
and archive access to certain works.
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\4\ P.L. 105-298.
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Materials Submitted for the Record
Hearings
The Committee's Subcommittee on Courts, the Internet, and
Intellectual Property held a hearing in the 108th Congress on
H.R. 2517 on July 17, 2003, and received testimony from one
witness on the issues addressed in Title I of S. 167. The
Subcommittee held an oversight hearing in the 108th Congress on
the issues addressed in Title II of S. 167 on May 20, 2004,
with testimony received from five witnesses representing five
organizations. The Subcommittee subsequently held a legislative
hearing in the 108th Congress on a very similar version of
Title II of S. 167. Testimony was received from four witnesses
representing four organizations.
Committee Consideration
On March 3, 2005, the Subcommittee on Courts, the Internet,
and Intellectual Property met in open session and ordered
favorably reported the bill S. 167, by a voice vote, a quorum
being present. On March 9, 2005, the Committee on the Judiciary
met in open session and ordered favorably reported the bill S.
167 without an amendment by voice vote, 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 there
were no recorded votes during the Committee consideration of S.
167.
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, S. 167, 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, March 14, 2005.
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 S. 167, the ``Family
Entertainment and Copyright Act of 2005.''
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 Page Piper/Bach (for private-sector mandates), who can be
reached at 226-2940.
Sincerely,
Douglas Holtz-Eakin.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
S. 167--Family Entertainment and Copyright Act of 2005.
SUMMARY
S. 167 would make several changes to current law regarding
copyrighted works. The bill would specifically authorize the
appropriation of $530,000 each year over the 2005-2009 period
to the Library of Congress for preserving films in the
Library's collection. Assuming appropriation of the specified
amounts, CBO estimates that implementing the bill would have no
significant cost in 2005 and would cost nearly $3 million over
the 2005-2009 period. Enacting the bill would not have a
significant effect on revenues or direct spending.
S. 167 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. S. 167
would impose private-sector mandates as defined in UMRA. CBO
estimates that the direct cost of those mandates would fall
well below the annual threshold established by UMRA for
private-sector mandates ($123 million in 2005, adjusted
annually for inflation).
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of S. 167 is shown in the
following table. For this estimate, CBO assumes that the bill
will be enacted in fiscal year 2005. CBO assumes that the
amounts authorized by the bill will be appropriated for each
fiscal year and that outlays will follow the historical rate of
spending for these activities. The costs of this legislation
fall within budget function 370 (commerce and housing credit).
By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2005 2006 2007 2008 2009 2010
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level 1 1 1 1 1 0
Estimated Outlays * 1 1 1 1 0
------------------------------------------------------------------------
BASIS OF ESTIMATE
S. 167 would make several changes to laws affecting
copyrighted materials. Assuming the appropriation of the
specified amounts, CBO estimates that implementing the act
would not have a significant cost in 2005 and would cost nearly
$3 million over the 2005-2009 period. Enacting this legislation
would not have a significant effect on direct spending or
revenues.
Spending Subject to Appropriation
Filtering Technology. Title II of S. 167 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 title II
would have no effect on Federal spending.
Film Preservation. Title III would authorize the
appropriation of nearly $3 million over the 2005-2009 period to
the Library of Congress for preserving films in the Library's
collection. It also would make technical changes to current law
regarding film preservation. CBO estimates that implementing
title III would not have a significant cost in 2005 and would
cost about $3 million over the 2005-2009 period.
Revenues and Direct Spending
Title I would establish new Federal crimes for the
unauthorized recording of motion pictures in movie theaters or
other venues and would provide for increased penalties for
other acts relating to copyright infringement. Because those
prosecuted and convicted under the act could be subject to
criminal fines, the Federal Government might collect additional
fines if the legislation is enacted. Collections of such fines
are recorded in the budget as revenues (i.e., governmental
receipts), which are deposited in the Crime Victims Fund and
later spent. CBO expects that any additional revenues and
direct spending would be less than $500,000 annually because of
the relatively small number of cases likely to be affected.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
S. 167 contains no intergovernmental mandates as defined in
UMRA and would not affect the budgets of States, local, or
tribal governments.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
S. 167 would impose two private-sector mandates as defined
in UMRA. CBO estimates that the direct cost of those mandates
would fall well below the annual threshold established by UMRA
for private-sector mandates ($123 million in 2005, adjusted
annually for inflation).
First, the bill would impose a private-sector mandate on
copyright owners. Section 202 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, section 202 would impose a private-sector mandate
on manufacturers, licensees, and licensors of technology
(manufactured 6 months or more after the bill's enactment) 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
that the direct cost to comply with the mandate, if any, would
be minimal.
ESTIMATE PREPARED BY:
Federal Costs: Melissa E. Zimmerman and Mark Grabowicz (226-
2860)
Impact on State, Local, and Tribal Governments: Theresa Gullo
(225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)
ESTIMATE 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, S. 167
will assist the Department of Justice in its efforts to
prosecute intellectual property theft; clarify the legal status
of certain services and technologies that enable individuals to
skip and mute content on certain works in the privacy of their
own home; reauthorize the National Film Preservation Board and
Foundation at the Library of Congress; and extend the
availability of copyrighted works to libraries and archives.
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, Section 8, Clause 8 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title. This section states that the
legislation may be cited as the ``Family Entertainment and
Copyright Act of 2005.''
Title I. The Artists' Rights and Theft Prevention Act of
2005. Title I contains two primary components: the first
creates new criminal penalties for those who camcord motion
pictures in motion picture exhibition theaters; the second
creates new civil and criminal causes of action for the willful
distribution of works being prepared for commercial
distribution.
Subsection (a) of the new Sec. 2319B created by Title I of
S. 167 sets forth the substantive elements of the offense.
Under this subsection, a person violates the statute when he or
she, without the authorization of the copyright owner,
knowingly uses or attempts to use an audiovisual recording
device in a motion picture exhibition facility to transmit or
make a copy of a motion picture or other audiovisual work
protected under Title 17 or any part thereof. The legislation
creates a new definition for the term ``motion picture
exhibition facility.'' Other terms used in the legislation are
defined in Section 101 of Title 17.
Subsection (d) creates an immunity from liability for
theater owners and associated individuals for their good faith
efforts to reasonably detain someone they suspect of violating
this Section in their theater(s). This provision is modeled
upon numerous shopkeeper privilege statutes that exist in state
and local laws.
Subsection (f) clarifies that States may regulate the use
of audiovisual recording devices in specific locations through
the use of their police powers without impermissibly
interfering with Federal copyright policy. The Committee is
aware that several states have enacted legislation with
proscriptions similar to those in the Federal law against using
or attempting to use the recording functions of a camcorder or
similar device without the express consent of a theater
owner.\5\
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\5\ See, e.g., Ariz. Rev. Stat.13-3723(a); Cal. Penal Code 653z
(a). Other states have added the copyright owner to the permission
chain. See, e.g., Ohio Rev. Code Ann. 2913.07(A)(1) (requiring consent
of the licensor).
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Preemption of State criminal statutes may occur under
either Sec. 301 of Title 17 where the gravamen of the state
cause of action contains an element in addition to an
allegation of wrongful copying or under the doctrine of
conflict preemption. The Committee believes that statutes such
as those above are qualitatively different for purposes of the
``extra element'' statutory preemption test under Sec. 301.
They contain the extra elements of operation or attempted
operation of a device, which does not involve copying at all
and, perhaps more importantly, the entry onto property to
perform an act that is both unauthorized by the real property
owner and harmful to the lawful use of that property.
Nonetheless, the purpose of this section is to make it
unequivocally clear that neither Sec. 301 nor the non-statutory
doctrine of conflict preemption precludes the enforcement of
such statutes on the basis that they interfere with the express
or implicit policies of the Copyright Act.
Section 105 directs the United States Sentencing Commission
to review and update, if appropriate, the sentencing guidelines
and policy statements surrounding several intellectual property
rights crimes.
Title II. The Family Movie Act. Section 202(a) of the
legislation creates a new subsection Sec. 110 (11) of Title 17.
This new subsection ensures that U.S. copyright law does not
prohibit 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;
2. Lfor the household of the purchasing consumer only;
and
3. Ldoes not create a fixed copy of the alternate
version.
Section 202(b) 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. 202(a)
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, consumer electronics manufacturers are
the most likely point of inclusion of such notices.
Title III. National Film Preservation Act of 2005. Title
III reauthorizes the National Film Preservation Board and
Foundation and makes several changes to the operation of each.
Section 312(a) also authorizes appropriations not to exceed
$530,000 in each of the fiscal years 2005 through 2009.
Title IV. Preservation of Orphan Works Act. Title IV
inserts a missing cross reference to 17 U.S.C. Sec. 108(h) in
17 U.S.C. Sec. 108(i). The inadvertent omission of the cross
reference limited libraries and archives access to certain
works during the last 20 years of term. This was not the
Committee's intent when it passed the ``Sonny Bono Copyright
Term Extension Act of 1998.''
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):
TITLE deg.TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 113--STOLEN PROPERTY
Sec.
2311. Definitions
* * * * * * *
2319B. Unauthorized recording of motion pictures in a motion picture
exhibition facility.
* * * * * * *
Sec. 2319. Criminal infringement of a copyright
(a) [Whoever] Any person who violates section 506(a)
(relating to criminal offenses) of title 17 shall be punished
as provided in subsections (b) [and (c) of this section], (c),
and (d) and such penalties shall be in addition to any other
provisions of title 17 or any other law.
(b) Any person who commits an offense under [section
506(a)(1)] section 506(a)(1)(A) of title 17--
(1) * * *
* * * * * * *
(c) Any person who commits an offense under [section
506(a)(2) of title 17, United States Code] section 506(a)(1)(B)
of title 17--
(1) * * *
* * * * * * *
(d) Any person who commits an offense under section
506(a)(1)(C) of title 17--
(1) shall be imprisoned not more than 3 years,
fined under this title, or both;
(2) shall be imprisoned not more than 5 years,
fined under this title, or both, if the offense was
committed for purposes of commercial advantage or
private financial gain;
(3) shall be imprisoned not more than 6 years,
fined under this title, or both, if the offense is a
second or subsequent offense; and
(4) shall be imprisoned not more than 10 years,
fined under this title, or both, if the offense is a
second or subsequent offense under paragraph (2).
[(d)] (e)(1) * * *
* * * * * * *
[(e)] (f) As used in this section--
(1) the terms ``phonorecord'' and ``copies'' have,
respectively, the meanings set forth in section 101
(relating to definitions) of title 17; [and]
(2) the terms ``reproduction'' and ``distribution''
refer to the exclusive rights of a copyright owner
under clauses (1) and (3) respectively of section 106
(relating to exclusive rights in copyrighted works), as
limited by sections 107 through 122, of title 17[.];
(3) the term ``financial gain'' has the meaning
given the term in section 101 of title 17; and
(4) the term ``work being prepared for commercial
distribution'' has the meaning given the term in
section 506(a) of title 17.
* * * * * * *
Sec. 2319B. Unauthorized recording of Motion pictures in a Motion
picture exhibition facility
(a) Offense.--Any person who, without the authorization of
the copyright owner, knowingly uses or attempts to use an
audiovisual recording device to transmit or make a copy of a
motion picture or other audiovisual work protected under title
17, or any part thereof, from a performance of such work in a
motion picture exhibition facility, shall--
(1) be imprisoned for not more than 3 years, fined
under this title, or both; or
(2) if the offense is a second or subsequent
offense, be imprisoned for no more than 6 years, fined
under this title, or both.
The possession by a person of an audiovisual recording device
in a motion picture exhibition facility may be considered as
evidence in any proceeding to determine whether that person
committed an offense under this subsection, but shall not, by
itself, be sufficient to support a conviction of that person
for such offense.
(b) Forfeiture and Destruction.--When a person is convicted
of a violation of subsection (a), the court in its judgment of
conviction shall, in addition to any penalty provided, order
the forfeiture and destruction or other disposition of all
unauthorized copies of motion pictures or other audiovisual
works protected under title 17, or parts thereof, and any
audiovisual recording devices or other equipment used in
connection with the offense.
(c) Authorized Activities.--This section does not prevent
any lawfully authorized investigative, protective, or
intelligence activity by an officer, agent, or employee of the
United States, a State, or a political subdivision of a State,
or by a person acting under a contract with the United States,
a State, or a political subdivision of a State.
(d) Immunity for Theaters.--With reasonable cause, the
owner or lessee of a motion picture exhibition facility where a
motion picture or other audiovisual work is being exhibited,
the authorized agent or employee of such owner or lessee, the
licensor of the motion picture or other audiovisual work being
exhibited, or the agent or employee of such licensor--
(1) may detain, in a reasonable manner and for a
reasonable time, any person suspected of a violation of
this section with respect to that motion picture or
audiovisual work for the purpose of questioning or
summoning a law enforcement officer; and
(2) shall not be held liable in any civil or
criminal action arising out of a detention under
paragraph (1).
(e) Victim Impact Statement.--
(1) In general.--During the preparation of the
presentence report under rule 32(c) of the Federal
Rules of Criminal Procedure, victims of an offense
under this section shall be permitted to submit to the
probation officer a victim impact statement that
identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim,
including the estimated economic impact of the offense
on that victim.
(2) Contents.--A victim impact statement submitted
under this subsection shall include--
(A) producers and sellers of legitimate
works affected by conduct involved in the
offense;
(B) holders of intellectual property rights
in the works described in subparagraph (A); and
(C) the legal representatives of such
producers, sellers, and holders.
(f) State Law Not Preempted.--Nothing in this section may
be construed to annul or limit any rights or remedies under the
laws of any State.
(g) Definitions.--In this section, the following
definitions shall apply:
(1) Title 17 definitions.--The terms ``audiovisual
work'', ``copy'', ``copyright owner'', ``motion
picture'', ``motion picture exhibition facility'', and
``transmit'' have, respectively, the meanings given
those terms in section 101 of title 17.
(2) Audiovisual recording device.--The term
``audiovisual recording device'' means a digital or
analog photographic or video camera, or any other
technology or device capable of enabling the recording
or transmission of a copyrighted motion picture or
other audiovisual work, or any part thereof, regardless
of whether audiovisual recording is the sole or primary
purpose of the device.
* * * * * * *
----------
TITLE 17, UNITED STATES CODE
* * * * * * *
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
* * * * * * *
Sec. 101. Definitions
Except as otherwise provided in this title, as used in this
title, the following terms and their variant forms mean the
following:
An ``anonymous work'' is a work on the copies or
phonorecords of which no natural person is identified
as author.
* * * * * * *
``Motion pictures'' are 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. The term
```motion picture exhibition facility''' means a movie
theater, screening room, or other venue that is being
used primarily for the exhibition of a copyrighted
motion picture, if such exhibition is open to the
public or is made to an assembled group of viewers
outside of a normal circle of a family and its social
acquaintances.
* * * * * * *
Sec. 108. Limitations on exclusive rights: Reproduction by libraries
and archives
(a) * * *
* * * * * * *
(i) The rights of reproduction and distribution under this
section do not apply to a musical work, a pictorial, graphic or
sculptural work, or a motion picture or other audiovisual work
other than an audiovisual work dealing with news, except that
no such limitation shall apply with respect to rights granted
by subsections [(b) and (c)] (b), (c), and (h), or with respect
to pictorial or graphic works published as illustrations,
diagrams, or similar adjuncts to works of which copies are
reproduced or distributed in accordance with subsections (d)
and (e).
* * * * * * *
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) the making imperceptible, by or at the
direction of a member of a private household, of
limited portions of audio or video content of a motion
picture, during a performance in or transmitted to that
household for private home viewing, from an authorized
copy of the motion picture, or the creation or
provision of a computer program or other technology
that enables such making imperceptible and that is
designed and marketed to be used, at the direction of a
member of a private household, for such making
imperceptible, if no fixed copy of the altered version
of the motion picture is created by such computer
program or other technology.
* * * * * * *
For purposes of paragraph (11), the term ``making
imperceptible'' does not include the addition of audio or video
content that is performed or displayed over or in place of
existing content in a motion picture.
Nothing in paragraph (11) shall be construed to imply
further rights under section 106 of this title, or to have any
effect on defenses or limitations on rights granted under any
other section of this title or under any other paragraph of
this section.
* * * * * * *
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
* * * * * * *
Sec. 408. Copyright registration in general
(a) * * *
* * * * * * *
(f) Preregistration of Works Being Prepared for Commercial
Distribution.--
(1) Rulemaking.--Not later than 180 days after the
date of enactment of this subsection, the Register of
Copyrights shall issue regulations to establish
procedures for preregistration of a work that is being
prepared for commercial distribution and has not been
published.
(2) Class of works.--The regulations established
under paragraph (1) shall permit preregistration for
any work that is in a class of works that the Register
determines has had a history of infringement prior to
authorized commercial distribution.
(3) Application for registration.--Not later than 3
months after the first publication of a work
preregistered under this subsection, the applicant
shall submit to the Copyright Office--
(A) an application for registration of the
work;
(B) a deposit; and
(C) the applicable fee.
(4) Effect of untimely application.--An action
under this chapter for infringement of a work
preregistered under this subsection, in a case in which
the infringement commenced no later than 2 months after
the first publication of the work, shall be dismissed
if the items described in paragraph (3) are not
submitted to the Copyright Office in proper form within
the earlier of--
(A) 3 months after the first publication of
the work; or
(B) 1 month after the copyright owner has
learned of the infringement.
* * * * * * *
Sec. 411. Registration and infringement actions
(a) Except for an action brought for a violation of the
rights of the author under section 106A(a), and subject to the
provisions of subsection (b), no action for infringement of the
copyright in any United States work shall be instituted until
preregistration or registration of the copyright claim has been
made in accordance with this title. In any case, however, where
the deposit, application, and fee required for registration
have been delivered to the Copyright Office in proper form and
registration has been refused, the applicant is entitled to
institute an action for infringement if notice thereof, with a
copy of the complaint, is served on the Register of Copyrights.
The Register may, at his or her option, become a party to the
action with respect to the issue of registrability of the
copyright claim by entering an appearance within sixty days
after such service, but the Register's failure to become a
party shall not deprive the court of jurisdiction to determine
that issue.
* * * * * * *
Sec. 412. Registration as prerequisite to certain remedies for
infringement
In any action under this title, other than an action
brought for a violation of the rights of the author under
section 106A(a), an action for infringement of the copyright of
a work that has been preregistered under section 408(f) before
the commencement of the infringement and that has an effective
date of registration not later than the earlier of 3 months
after the first publication of the work or 1 month after the
copyright owner has learned of the infringement, or an action
instituted under section 411(b), no award of statutory damages
or of attorney's fees, as provided by sections 504 and 505,
shall be made for--
(1) * * *
* * * * * * *
CHAPTER 5--COPYRIGHT INFRINGEMENT AND REMEDIES
* * * * * * *
Sec. 506. Criminal offenses
[(a) Criminal Infringement.--Any person who infringes a
copyright willfully either--
[(1) for purposes of commercial advantage or
private financial gain, or
[(2) by the reproduction or distribution, including
by electronic means, during any 180-day period, of 1 or
more copies or phonorecords of 1 or more copyrighted
works, which have a total retail value of more than
$1,000,
shall be punished as provided under section 2319 of title 18,
United States Code. For purposes of this subsection, evidence
of reproduction or distribution of a copyrighted work, by
itself, shall not be sufficient to establish willful
infringement.]
(a) Criminal Infringement.--
(1) In general.--Any person who willfully infringes
a copyright shall be punished as provided under section
2319 of title 18, if the infringement was committed--
(A) for purposes of commercial advantage or
private financial gain;
(B) by the reproduction or distribution,
including by electronic means, during any 180-
day period, of 1 or more copies or phonorecords
of 1 or more copyrighted works, which have a
total retail value of more than $1,000; or
(C) by the distribution of a work being
prepared for commercial distribution, by making
it available on a computer network accessible
to members of the public, if such person knew
or should have known that the work was intended
for commercial distribution.
(2) Evidence.--For purposes of this subsection,
evidence of reproduction or distribution of a
copyrighted work, by itself, shall not be sufficient to
establish willful infringement of a copyright.
(3) Definition.--In this subsection, the term
``work being prepared for commercial distribution''
means--
(A) a computer program, a musical work, a
motion picture or other audiovisual work, or a
sound recording, if, at the time of
unauthorized distribution--
(i) the copyright owner has a
reasonable expectation of commercial
distribution; and
(ii) the copies or phonorecords of
the work have not been commercially
distributed; or
(B) a motion picture, if, at the time of
unauthorized distribution, the motion picture--
(i) has been made available for
viewing in a motion picture exhibition
facility; and
(ii) has not been made available in
copies for sale to the general public
in the United States in a format
intended to permit viewing outside a
motion picture exhibition facility.
* * * * * * *
----------
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. This subparagraph does
not preclude liability, nor shall it be construed to restrict
the defenses or limitations on rights granted under this Act,
of a person for conduct not described in paragraph (11) of
section 110 of title 17, United States Code, even if that
person also engages in conduct described in paragraph (11) of
section 110 of such title.
(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 as described in
subparagraph (A) is not liable on account of such manufacture
or license for a violation of any right under this Act, if such
manufacturer, licensee, or licensor ensures that the technology
provides a clear and conspicuous notice at the beginning of
each performance that the performance of the motion picture is
altered from the performance intended by the director or
copyright holder of the motion picture. The limitations on
liability in subparagraph (A) and this subparagraph shall not
apply to a manufacturer, licensee, or licensor of technology
that fails to comply with this paragraph.
(C) The requirement under subparagraph (B) to provide
notice 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 2005.
(D) Any failure by a manufacturer, licensee, or licensor of
technology to qualify for the exemption under subparagraphs (A)
and (B) shall not be construed to create an inference that any
such party that engages in conduct described in paragraph (11)
of section 110 of title 17, United States Code, is liable for
trademark infringement by reason of such conduct.
----------
NATIONAL FILM PRESERVATION ACT OF 1996
* * * * * * *
SEC. 103. DUTIES OF THE LIBRARIAN OF CONGRESS.
(a) * * *
(b) Use of Seal.--The seal provided under subsection (a)(3)
may only be used on [film copies] film or other approved copies
of the Registry version of a film. Such seal may be used only
after the Librarian has given approval to those persons seeking
to apply the seal in accordance with the guidelines under
subsection (a)(3). In the case of [copyrighted] copyrighted,
mass distributed, broadcast, or published works, only the
copyright owner or an authorized licensee of the copyright
owner may place or authorize the placement of the seal on any
[film copy] film or other approved copy of a Registry version
of a film selected for inclusion in the National Film Registry,
and the Librarian may place the seal on any [film copy] film or
other approved copy of the Registry version of any film that is
maintained in the National Film Registry Collection in the
Library of Congress. Anyone authorized to place the seal on any
[film copy] film or other approved copy of any Registry version
of a film may accompany such seal with the following language:
``This film was selected for inclusion in the National Film
Registry by the National Film Preservation Board of the Library
of Congress because of its cultural, historical, or aesthetic
significance.''.
(c) Coordination of Program With Other Collection,
Preservation, and Accessibility Activities.--In carrying out
the comprehensive national film preservation program for motion
pictures established under the National Film Preservation Act
of 1992, the Librarian, in consultation with the Board
established pursuant to section 104, shall--
(1) carry out activities to make films included in
the National Film registry more broadly accessible for
research and educational purposes, and to generate
public awareness and support of the Registry and the
comprehensive national film preservation program;
(2) review the comprehensive national film
preservation plan, and amend it to the extent necessary
to ensure that it addresses technological advances in
the preservation and storage of, and access to film
collections in multiple formats; and
(3) wherever possible, undertake expanded
initiatives to ensure the preservation of the moving
image heritage of the United States, including film,
videotape, television, and born digital moving image
formats, by supporting the work of the National Audio-
Visual Conservation Center of the Library of Congress,
and other appropriate nonprofit archival and
preservation organizations.
SEC. 104. NATIONAL FILM PRESERVATION BOARD.
(a) Number and Appointment.--
(1) Members.--The Librarian shall establish in the
Library of Congress a National Film Preservation Board
to be comprised of [20] 22 members, who shall be
selected by the Librarian in accordance with this
section. Subject to subparagraphs (C) and (N), the
Librarian shall request each organization listed in
subparagraphs (A) through (Q) to submit a list of three
candidates qualified to serve as a member of the Board.
Except for the members-at-large appointed under
subparagraph (2), the Librarian shall appoint one
member from each such list submitted by such
organizations, and shall designate from that list an
alternate who may attend at Board expense those
meetings to which the individual appointed to the Board
cannot attend. The organizations are the following:
(A) * * *
* * * * * * *
(2) Members-at-large.--In addition to the members
appointed under paragraph (1), the Librarian shall
appoint up to [three] 5 members-at-large. The Librarian
shall also select an alternate for each member at-
large, who may attend at Board expense those meetings
which the member at-large cannot attend.
* * * * * * *
(d) Quorum.--[11] 12 members of the Board shall constitute
a quorum but a lesser number may hold hearings.
[(e) Reimbursement of Expenses.--Members of the Board shall
serve without pay, but may be reimbursed for the actual and
necessary traveling and subsistence expenses incurred by them
in the performance of the duties of the Board.]
(e) Reimbursement of Expenses.--Members of the Board shall
serve without pay, but may receive travel expenses, including
per diem in lieu of subsistence, in accordance with sections
5702 and 5703 of title 5, United States Code.
* * * * * * *
SEC. 106. NATIONAL FILM REGISTRY COLLECTION OF THE LIBRARY OF CONGRESS.
(a) * * *
* * * * * * *
(e) National Audio-Visual Conservation Center.--The
Librarian shall utilize the National Audio-Visual Conservation
Center of the Library of Congress at Culpeper, Virginia, to
ensure that preserved films included in the National Film
Registry are stored in a proper manner, and disseminated to
researchers, scholars, and the public as may be appropriate in
accordance with--
(1) title 17, United States Code; and
(2) the terms of any agreements between the
Librarian and persons who hold copyrights to such
audiovisual works.
SEC. 107. SEAL OF THE NATIONAL FILM REGISTRY.
(a) Use of the Seal.--
(1) Prohibition on distribution and exhibition.--No
person shall knowingly distribute or exhibit to the
public a version of a film or any copy in any format of
a film which bears the seal described in section
103(a)(3) if such film--
(A) * * *
* * * * * * *
(2) Prohibition on promotion.--No person shall
knowingly use the seal described in section 103(a)(3)
to promote any version of a film [or film copy] in any
format other than a Registry version.
* * * * * * *
SEC. 113. EFFECTIVE DATE.
The provisions of this title shall be effective for [7] 13
years beginning on the date of the enactment of this Act. The
provisions of this title shall apply to any copy of any film,
including those copies of films selected for inclusion in the
National Film Registry under the National Film Preservation Act
of 1988 and the National Film Preservation Act of 1992, except
that any film so selected under either Act shall be deemed to
have been selected for the National Film Registry under this
title.
* * * * * * *
----------
TITLE 36, UNITED STATES CODE
* * * * * * *
SUBTITLE II--PATRIOTIC AND NATIONAL ORGANIZATIONS
* * * * * * *
PART B--ORGANIZATIONS
* * * * * * *
CHAPTER 1517--NATIONAL FILM PRESERVATION FOUNDATION
* * * * * * *
Sec. 151703. Board of directors
(a) * * *
(b) Members and Appointment.--(1) * * *
(2)(A) The board consists of [nine] 12 directors.
* * * * * * *
(4) The terms of office of the directors are 4 years. [An
individual may not serve more than two consecutive terms.]
There shall be no limit to the number of terms to which any
individual may be appointed.
* * * * * * *
Sec. 151705. Powers
(a) * * *
(b) Powers as Trustee.--To carry out its purposes, the
corporation has the usual powers of a corporation acting as a
trustee in the [District of Columbia] the jurisdiction in which
the principal office of the corporation is located, including
the power--
(1) * * *
* * * * * * *
Sec. 151706. Principal office
The principal office of the corporation shall be in the
District of Columbia, or another place as determined by the
board of directors. However, the corporation may conduct
business throughout the States, territories, and possessions of
the United States.
* * * * * * *
Sec. 151711. Authorization of appropriations
[(a) Authorization.--There are authorized to be
appropriated to the Library of Congress amounts necessary to
carry out this chapter, not to exceed $250,000 for each of the
fiscal years ending September 30, 2000-2005. These amounts are
to be made available to the corporation to match private
contributions (whether in currency, services, or property) made
to the corporation by private persons and State and local
governments.
[(b) Limitation Related to Administrative Expenses.--
Amounts authorized under this section may not be used by the
corporation for administrative expenses of the corporation,
including salaries, travel, transportation, and overhead
expenses.]
(a) Authorization of Appropriations.--There are authorized
to be appropriated to the Library of Congress amounts necessary
to carry out this chapter, not to exceed $530,000 for each of
the fiscal years 2005 through 2009. These amounts are to be
made available to the corporation to match any private
contributions (whether in currency, services, or property) made
to the corporation by private persons and State and local
governments.
(b) Limitation Related to Administrative Expenses.--Amounts
authorized under this section may not be used by the
corporation for management and general or fundraising expenses
as reported to the Internal Revenue Service as part of an
annual information return required under the Internal Revenue
Code of 1986.
* * * * * * *
Committee Jurisdiction Letters
Markup Transcript
BUSINESS MEETING
WEDNESDAY, MARCH 9, 2005
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, 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 be in order. A
working quorum is present comprised entirely of Members of the
majority party. So rather than doing a ratification of minority
Committee assignments, since there is no one here to make a
motion to do that, we will now go to the next item on the
agenda which is the adoption of S. 167, the ``Family
Entertainment and Copyright Act of 2005,'' and the Chair
recognizes the gentlemen from Texas, Mr. Smith, the Chairman of
the Subcommittee on Courts, the Internet, and Intellectual
Property for a motion.
Mr. Smith. Mr. Chairman, I ask unanimous consent that we
consider the following bills en bloc: S. 167, H.R. 683, H.R.
1036, H.R. 1037, H.R. 1038.
Chairman Sensenbrenner. How about House Concurrent
Resolution----
Mr. Smith. It's my understanding, Chairman, that needs to
be considered separately.
Chairman Sensenbrenner. Okay. Without objection, the 5
bills mentioned by the gentleman from Texas will be considered
en bloc, and the Chair recognizes the gentleman from Texas to
explain them.
Mr. Smith. I'll try to be brief, Mr. Chairman. The first
bill, S. 167 really consists of three previous bills that this
Committee has approved and that passed the House last year. The
first one is the Family Movie Act, and I think Members will
recall that that simply gives parents the right to determine
what their children see when they rent or buy a movie video.
The second part of this particular bill is the Art Act
which creates new penalties for those who camcord movies in
public theaters and who willfully infringe copyright law by
distributing copies of prereleased works, movies or otherwise.
The Trademark Dilution Revision Act of 2005 simply,
basically protects trademarks in a better way and also makes
sure that people cannot infringe trademarks as easily as they
do now. It also does a good job of trying to keep us out of
court to determine some of the ambiguities of that particular
subject.
The two technical correction bills are just that, technical
corrections of the Satellite Viewer, Home Viewer Movie Act, and
the technical corrections, in addition to the satellite
corrections are technical corrections of the CARP bill, which
we approved last year and which passed the House.
The last bill in the en bloc package, Mr. Chairman, is your
bill, the Multidistrict Litigation Restoration Act of 2005, and
I will yield to you to make any comments on that.
And that would be the quick summary of the five bills en
bloc.
[The bill, S. 167, follows:]
Chairman Sensenbrenner. The Chair passes on this.
Without objection, all Members may place opening statements
in the record on each of the bills being considered en bloc at
this time. Hearing no objection, so ordered.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
I rise in support of this legislation with reservations about one
part. At the outset, I strongly support efforts to make it more
difficult to steal content and to encourage preservation of historic
content.
As I have said before, the content industries are a boon to our
economy, providing this country's number one export. Their products,
which include music, movies, books, and software, survive on the
protection given by copyright law. Without protection from rampant
copying and other infringement, creators would have no reason to keep
creating and investing in new content.
The success of copyrighted content, however, is also its Achilles'
Heel. People now camcord movies in theaters to sell online or in DVD
format. They obtain pre-release copies of content and sell it online.
Of course, this is illegal because it is done without the permission of
the content owners and without payment to them. This bill clarifies
that these two acts are illegal even if technology makes it easy and
fast and cheap. While I believe we should do more to stop piracy, S.
167 is a step in the right direction.
Having said that, I would like to clarify one issue. The civil
enforcement side of the pre-release provision imposes a statute of
limitations on certain copyright lawsuits. Because it imposes the limit
only for infringements that occur no more than two months after pre-
registered content is first distributed, it is clear that the bill does
not impose any time limit on filing lawsuits for infringements that
occur more than two months after distribution.
The bill also contains two provisions that will encourage the
preservation of historically-significant content. First, it
reauthorizes the National Film Preservation Board and National Film
Preservation Foundation, which review initiatives to ensure the
preservation of valued films and issue grants to libraries and other
institutions that can save films from degradation. The Directors Guild
of America and the Academy of Motion Picture Arts and Sciences have
applauded these efforts. The program expired in 2003, so S. 167 extends
it until 2009.
The second preservation piece, the ``Preservation of Orphan Works
Act,'' will empower libraries and archives to make additional copies of
musical works, movies, and other content.
My one objection to S. 167, however, is with the ``Family Movie
Act,'' which would allow private companies to sell movie editing
software without permission from the filmmakers. This was proposed in
response to a lawsuit between one company and filmmakers. From our
consideration of this provision last year, we know this section will
take away the copyrights and artistic rights of filmmakers to the
financial benefit of one private company. It is important to note that
the bill does not immunize those who make fixed copies of edited
content; such copies would still be illegal, as they are today, and the
legislative history should reflect that.
I urge my colleagues to vote ``Aye'' on this legislation.
[The prepared statement of Mr. Berman follows:]
Prepared Statement of the Honorable Howard L. Berman, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Courts, the Internet, and Intellectual Property
Mr. Chairman, thank you for scheduling a mark-up of S. 167. S. 167
strives to protect copyright owners from rampant infringement and is
overall a good bill. However, it does little to confront many of the
important issues we addressed last year with the passage of H.R. 4077.
I am disappointed that with this bill we seem to have moved backwards,
but I have been convinced that at this point, a bird in hand is better
then two in the bush.
S. 167 attempts to prevent the first step for those distributing
pirated movies--obtaining the first copy. Copies of brand new movies--
still showing in the theaters--are available on street corners
throughout the world for two dollars as a result of people using a
camcorder in theaters. Therefore, as did H.R. 4077, S. 167 criminalizes
the recording of a movie in a theater with a camcorder. The bill
extends to the theater owner the right to detain an individual
suspected of copying a movie. Furthermore, it provides for the
confiscation of the property used to commit the crime.
However, preventing the camcording of movies does not solve the
piracy problem. Pirates will always seek treasure, and where they have
truly found gold is in obtaining a pre-released copy of a movie, sound
recording or video game. In testimony on this issue almost two years
ago, industry representatives testified that two weeks before the
motion picture THE HULK was to be released in theaters, an incomplete
work print version of the film had been illegally uploaded onto the
internet. In fact, reviews for THE HULK were available before its
release in theaters. The harm to the market of a copyrighted work
exponentially increases if the work is released before the editing or
promotion for the product is completed. Therefore, S. 167 imposes civil
and criminal penalties for the willful distribution of a work being
prepared for commercial distribution.
A very important provision of S. 167 is the reauthorization of the
National Film Preservation Board and the National Film Preservation
Foundation. These organizations play a vital role in maintaining the
history of film. Finally, included in S. 167 is a bill I introduced
with Mr. Smith and Ms. Lofgren, in the last Congress. The orphan works
provision is designed to allow libraries and archives to use certain
copyrighted materials during the last 20 years of term of the
copyright, under specific conditions. In this way, we have addressed
concerns by the user community and made copyrighted works more
accessible.
What I find problematic about S. 167 is that it fails to address
core problems facing copyright owners today, including the effect of
Peer-to- Peer Networks, lack of resources for prosecution of
intellectual property crimes, and the paucity of education on these
subjects. Instead of protecting an owner's copyright by addressing the
problems caused by Peer-to-Peer Networks, the bill shields a technology
which is harmful to an intellectual property owner. (Clearplay)
In addition, the drafters of this bill have chosen not to add an
education provision from H.R. 4077 which would establish a program in
the Department of Justice to educate public users of the internet of
the risks involved in downloading illegal copies of copyrighted works.
Such education would go a long way toward protecting our children from
pornography, security and privacy threats. What the drafters have
chosen to include instead is the Family Movie Act, under the guise that
an exception for this technology provided by Clearplay is adequate to
shield minor children from violence, sex or profanity. What the bill in
fact does is provide an exemption from copyright liability for a
company like Nissam, the claimed owner of the patent to the Clearplay
technology, which offers a movie viewer the option of enhancing the
level of violence, sex or profanity.
Ironically, in H.R. 4077, we had worked out a compromise relating
to modernizing the Net Act. However, today's legislation remains silent
on necessary fixes to the Net Act. These fixes could help copyright
owners deal with 21st Century problems.
While I am disappointed that this legislation does not go far
enough to protect against piracy, at least it is a starting point.
Overall, I am pleased with most of the provisions in the bill. However,
I look forward to working with the Chairman of the Subcommittee in
drafting a bill later in this Congress that further protects the rights
of copyright holders. In the meanwhile, I urge my colleagues to support
this bill.
Chairman Sensenbrenner. Are there any amendments to any of
the bills?
[No response.]
There being no amendments, without objection, the previous
question is ordered on reporting the bills favorably and the
vote on reporting these bills favorably will be taken when a
reporting quorum is present.
Without objection the order for the previous question is
vitiated. There is a Subcommittee amendment on H.R. 683, the
Dilution Bill. Without objection, the Subcommittee amendment is
agreed to. Hearing none, so ordered.
And now without objection, the previous question is ordered
on reporting the bills favorably with H.R. 683 being reported
favorably as amended. And the vote will be taken at the time
that a reporting quorum appears.
[Intervening business.]
Chairman Sensenbrenner. The gentleman from California.
Mr. Berman. Thank you, Mr. Chairman. Could I ask unanimous
consent that we, I guess, rescind the motion to close debate on
S. 167 so I could simply seek to raise an issue to get into the
Committee report on that bill?
Chairman Sensenbrenner. Without objection, the motion on
the previous question to order favorably reported S. 167 is
vitiated, and the gentleman from California is recognized for 5
minutes to strike the last word.
Mr. Berman. Thank you, Mr. Chairman. I appreciate that. I
will simply incorporate by reference all critical comments
about that portion of S. 167, known as the Family Movie Act,
but I would like to bring to the Chairman both of the full
Committee and the Subcommittee's attention, an issue involved
in this part of the bill. We had a conversation last year about
whether the bill might be read to provide a defense to
manufacturers of ad-skipping devices. You at that time argued
that it could not, but promised to work with me to make that
clear. We did that, and it resulted in the explicit language
for H.R. 4077, from which this provision comes, which was in
the bill last year that passed the House.
That specific language did not come over in the Senate
bill, and I was wondering if you would be willing to commit, as
you did last year, to make sure the Committee's report on the
bill underscores the removal of the language in H.R. 4077 in no
way renders the bill applicable in litigation over ad skipping.
Chairman Sensenbrenner. If the gentleman will yield?
Mr. Berman. I will be happy to.
Chairman Sensenbrenner. I am happy to make sure that that
will be in the Committee's report and instruct the staff on
both sides of the aisle to make sure that the observations of
the gentleman from California are contained in the Committee
report before it is filed.
Mr. Berman. I thank you very much, and I yield back my
time.
Chairman Sensenbrenner. The gentleman yields back the
balance of his time. Are there further amendments to Senate
167?
[No response.]
Chairman Sensenbrenner. If there are no further amendments,
without objection, the previous question is ordered favorably
reporting Senate 167.
We are still one short of a reporting quorum. I would ask
the Members present to be patient, and as soon as we round up--
here we go. They have been rounded up. [Laughter.]
The previous question has been ordered on reporting
favorably the following bills: Senate 167, H.R. 683, H.R. 1036,
H.R. 1037 and H.R. 1038. So many as are in favor of reporting
these bills favorably will say aye.
Opposed, no?
The ayes appear to have it. The ayes have it, and the bills
are reported favorably.
Without objection, those bills which were amended here,
meaning H.R. 683, 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. That unanimous
consent request also includes Senate 167 as amended.
Is there any objection?
Mr. Scott. Mr. Chairman, reserving the right to object.
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Scott. Mr. Chairman, I want the record to reflect that
on S. 167 I do not approve of the Family Movie Act of 2005, and
I withdraw my reservation.
Chairman Sensenbrenner. The Chair would observe that people
who disagree with the Family Movie Act provisions have got the
authority to file additional views as a part of the Committee
report. Without----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. Does the gentleman----
Mr. Watt. Reserving the right to object.
Chairman Sensenbrenner. Does the gentleman from Virginia
withdraw his reservation?
Mr. Scott. I did, Mr. Chairman.
Chairman Sensenbrenner. Okay. The gentleman from North
Carolina.
Mr. Watt. Simply--and I will not object, Mr. Chairman. I
simply wanted to note that I was the only dissenting voice in a
favorable report and wanted the record to show that that was
because of my opposition to H.R. 1038, and I just wanted that
in the record.
Chairman Sensenbrenner. With the next unanimous consent
request, the gentleman will be given the right to file
dissenting views on that bill. There will be separate Committee
reports that will be filed on each of the bills considered en
bloc. Does the gentleman withdraw his reservation?
Mr. Watt. Yes.
Chairman Sensenbrenner. Okay. Without objection, all
Members will be given 2 days as provided by House rules, in
which to submit additional dissenting, supplemental or minority
views, and without objection the staff is directed to make any
technical and conforming changes.
[Intervening business.]
Chairman Sensenbrenner. There being no further business to
come before the Committee, the Committee stands adjourned.
[Whereupon, at 10:17 a.m., the Committee was adjourned.]
Minority Views
While we support the anti-piracy provisions of S. 167, we
oppose title II of the bill. Title II consists of the ``Family
Movie Act of 2004.'' \1\ With the purported goal of sanitizing
undesired content in motion pictures, the Family Movie Act
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.
Title II 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\ The Family Movie Act was introduced as H.R. 4586 in the 108th
Congress and was added to H.R. 4077 at full Committee markup in the
108th Congress. A hearing on H.R. 4586 was held at the Subcommittee
level.
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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 the Family Movie
Act 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 the Family Movie Act 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\
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\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).
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A. THE FAMILY MOVIE ACT 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\
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\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.
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\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 that 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 so long as
clear and conspicuous notice is provided at the beginning of
each performance indicating it has been altered from the
performance intended by the director or copyright owner. 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 the 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 this legislation, 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, title II would be an
unfortunate example of such unfairness. For these reasons,
title II should not be considered while litigation is
pending.\13\
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\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. THE FAMILY MOVIE ACT 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 at a hearing
on the issue of whether a legislative fix was necessary:
I cannot accept the proposition that not to permit
parents to use such products means that they are
somehow forced to expose their children (or themselves)
to unwanted depictions of violence, sex and profanity.
There is an obvious choice--one which any parent can
and should make: don't let your children watch a movie
unless you approve of the content of the entire
movie.\14\
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\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.
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\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 a
Family Movie Act 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).
---------------------------------------------------------------------------
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. THE FAMILY MOVIE ACT WOULD LEGALIZE EDITING THAT IS INCOMPREHENSIBLE
AND OVERBROAD AND WOULD LEAD TO AN INCREASE IN UNDESIRED CONTENT
The Family Movie Act would lead to editing that is
inconsistent, overbroad, and counterproductive. First,
ClearPlay does not screen out the content it purportedly is
designed to filter. The New York Times found that ClearPlay's
editing does not conform to its own standards:
For starters, its editors are wildly inconsistent. They
duly mute every ``Oh my God,'' ``You bastard,'' and
``We're gonna have a helluva time'' (meaning sex). But
they leave intact various examples of crude teen slang
and a term for the male anatomy.
In ``Pirates of the Caribbean,'' ``God-forsaken
island'' is bleeped, but ``heathen gods'' slips
through.\20\
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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,
title II would legalize a far wider and less desirable universe
of filters for profit than its sponsors have disclosed. Filters
could be based on social, political, and professional
prejudices and could edit more than just movies.
For instance, because the bill is not explicitly limited to
the deletion of sex, violence, and profanity, it would legalize
socially-undesirable editing, such as:
A filter that edits out racial conflict
between law enforcement and minorities in The
Hurricane, conflict that sets the context for how the
minorities later react to the police; \21\
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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.
A 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;
A filter that strips Jungle Fever of scenes
showing interracial romance and leaves only those
scenes depicting interracial conflict; and
A filter marketed by Holocaust revisionists
that removes from World War II documentaries any
footage of concentration camps.
The legislation also would immunize products that filter
political or business content based on the opinions of the
creator, including:
A filter that skips over political
advertisements contrary to the positions of the
developer's beliefs;
A filter that cleanses news stories, such as
by editing out comments in support of or in opposition
to government policies; and
A filter that deletes television stories
either helpful to the filter developer's competitor or
critical of the developer's corporate parent.
We would hope that none of the bill's proponents would
condone such malicious editing. Unfortunately, at last year's
full Committee markup of similar legislation, the sponsors
rejected an effort to limit the proposal to its purported scope
of profane, sexual, and violent content.\22\ If enacted, title
II 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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Finally, the legislation could lead to increased violence
and sexual content in entertainment. Just as title II allows
nudity to be edited out, it allows everything except nudity to
be deleted. This concern is not merely hypothetical. Nissim
Corporation has patented a technology called CustomPlay that,
among other things, enables viewers of pornographic movies to
filter out the non-pornographic scenes and ``enhance'' the
adult-viewing experience.\23\
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\23\ Using CustomPlay, ``[a]n adult can play a version of an adult
video that seamlessly excludes content inconsistent with the viewer's
adult content preferences, and that is presented at a level of
explicitness preferred by the adult. Adult content categories are
standardized and are organized into five groups Who, What, Camera,
Position, and Fetish.'' CustomPlay, Content Preferences (visited Aug.
24, 2004) .
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Because title II only protects technology developers like
ClearPlay from liability for copyright and trademark
infringement, Nissim may cause the bill to backfire on its
sponsors. Nissim has sued ClearPlay for patent infringement,
claiming to have a patent on ClearPlay-type film-editing
technology.\24\ If Nissim's claims are valid, then only Nissim
could distribute such film-editing software.\25\ Thus, contrary
to its stated purpose, the Family Movie Act could succeed in
legalizing only Nissim's technology, which enables users to
increase the proportion of sex or violence in a movie.\26\
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\24\ Nissim Corp. v. ClearPlay, No. 04-21140 (S.D. Fla. filed May
13, 2004).
\25\ In response to a cease-and-desist letter from Nissim, a
manufacturer of DVD players, Thomson, pulled ClearPlay-enabled players
from the retail market.
\26\ In analyzing the overbreadth of the legislation, we also note
that it does not legalize technology that would skip over
advertisements in broadcast television. The Copyright Office has stated
that the bill would not permit commercial ad skipping on the grounds
that each ad, in and of itself, would be a separate ``motion picture;''
skipping the entirety of an ad would go beyond the extent of the bill's
authority of making ``limited portions imperceptible.'' See Letter from
Marybeth Peters, Register of Copyrights, to the Honorable F. James
Sensenbrenner, Jr., and the Honorable Lamar Smith (Nov. 15, 2004).
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Moreover, the legislation's original sponsor, Sen. Orrin Hatch (R-
UT), further noted in his statement introducing the bill:
An advertisement, under the Copyright Act, is itself a
``motion picture,'' and thus a product or service that
enables the skipping of an entire advertisement, in any
media, would be beyond the scope of the exemption.
Moreover, the phrase ``limited portions'' is intended to
refer to portions that are both quantitatively and
qualitatively insubstantial in relation to the work as a
whole. Where any substantial part of a complete work, such
as a commercial advertisement, is made imperceptible, the
new section 110(11) exemption would not apply. 151 Cong.
Rec. S495 (daily ed. Jan. 25, 2005) (statement of Sen.
Hatch).
D. THE FAMILY MOVIE ACT 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.\27\ The National Endowment for the Arts states
``[a]rtistic work and freedom of expression are a vital part of
any democratic society.'' \28\ For this reason, the NEA seeks
to preserve works of art,\29\ and an important part of
preservation is to ensure artists are involved in how their
creations are portrayed.
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\27\ Sam Ricketson, The Berne Convention: 1886-1986 456 (1997)
(``Any author, whether he writes, paints, or composes, embodies some
part of himself--his thoughts, ideas, sentiments and feelings--in his
work, and this gives rise to an interest as deserving of protection as
any of the other personal interests protected by the institutions of
positive law, such as reputation, bodily integrity, and confidences.
The interest in question here relates to the way in which the author
presents his work to the world, and the way in which his identification
with the work is maintained.'').
\28\ National Endowment for the Arts, Strategic Plan: FY2003-2008 3
(Feb. 2003).
\29\ 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.'' \30\ The United States, recognizing the
importance of this right, subsequently enacted it into both
copyright law \31\ and trademark law.\32\
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\30\ Berne Convention for the Protection of Literary and Artistic
Works, art. 6bis, 1971.
\31\ 17 U.S.C. Sec. 106A.
\32\ 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.\33\ By limiting the availability of Lanham
Act suits, title II would limit the moral rights of directors
in a way that conflicts with U.S. obligations under the Berne
Convention.
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\33\ 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, title
II does not require that filtering be done with the permission
of the content creator or owner, but rather creates an
exemption from copyright and trademark liability for filtering.
As the Register of Copyrights stated before the Subcommittee:
I have serious reservations about enacting legislation
that permits persons other than the creators or
authorized distributors of a motion picture to make a
profit by selling adaptations of somebody else's motion
picture. It's one thing to say that an individual, in
the privacy of his or her home, should be able to
filter out undesired scenes or [dialogue] from his or
her private home viewing of a movie. It's another
matter to say that a for-profit company should be able
to commercially market a product that alters a
director's artistic vision.\34\
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\34\ H.R. 4586 Hearing at 10 (written statement of Marybeth
Peters).
It is clear, therefore, that the legislation represents a
threat to an artist's right to his or her artistic integrity.
To permit editing of a creation without the permission of the
creator is to encourage censorship and to vitiate freedom of
expression.
In conclusion, the Family Movie Act is ill-conceived,
poorly-drafted legislation. Beyond its patent assault on
intellectual property rights, the bill inappropriately involves
Congress in a private business dispute and would lead to
socially undesirable editing and actually permit the
distribution of technology that makes pornography even more
pornographic. Finally, it encourages unwarranted intrusions
into artistic freedom.
John Conyers, Jr.
Howard L. Berman.
Robert C. Scott.
Melvin L. Watt.
Maxine Waters.
Linda T. Sanchez.
