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Louisiana State Univ.

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Thursday, March 10, 2005

New Legislation to Protect Artists' Rights May Be Headed for President's Desk

The Family Entertainment and Copyright Act of 2005 seems to be headed for President Bush's desk.  This piece of legislation brings together several bills on related topics. One, the Artists' Rights and Theft Prevention Act of 2005 (ART Act) would provide for protection of copyrighted films by making the practice of using camcorders to film them off commercial movie screens a federal crime. Another part of the act, the Family Movie Act of 2005, allows home users to intercept "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" using aftermarket technology such as that marketed by ClearPlay. A likely use would be to prevent the broadcast of indecent, profane or violent material that a parent desired his or her children not to see.  The Family Movie Act is controversial since the practice of intercepting objectionable bits of films or other copyrighted material is at issue in the lawsuit between Clear Play, Family Shield Technologies and Trilogy Studios, and the Directors Guild of America and various other parties over allegations of copyright violations. The case, which first began in the U. S. District Court for the District of Colorado, is Huntsman v. Soderbergh. Some of the documents are available hereThe EFF's amicus brief is available here. The artists contend that the technology allows individuals to intercept more than just a few objectionable words; it permits wholesale excision of scenes, gutting the meaning of the films in some cases. The manufacturers respond that the machines simply allow the users to change the way they view the films. The technology does not change the original in any way.

The interpretation of the word "imperceptible" may be the key here. Very little in the way of legislative history accompanies the bill. However, here are Senator Hatch's comments from the Congressional Record.

"The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called "ad-skipping" technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to "ad-skipping"' cases, such as in the recent litigation involving ReplayTV.  In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent "ad-skipping" litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill. That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the "making imperceptible . . . limited portions of audio or video content of a motion picture. . . ." 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. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption." 151 Cong. Rec. S495.

The other parts of the act include provisions dealing with the preservation of films (the National Film Preservation Act of 2005, National Film Preservation Foundation Reauthorization Act of 2005, and the Preservation of Orphan Works Act). S 167 is sponsored by Senator Orrin Hatch and co-sponsored by Senators John Cornyn, Dianne Feinstein and Patrick Leahy. For additional commentary and history see articles in Tech Law Journal and Brooks Boliek's piece in the Hollywood Reporter today.

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