SPEAKERS CONTENTS INSERTS
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FAMILY MOVIE ACT OF 2004
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
JUNE 17, 2004
Page 2 PREV PAGE TOP OF DOCSerial No. 94
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
Page 3 PREV PAGE TOP OF DOCSTEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Page 4 PREV PAGE TOP OF DOCSubcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
JOHN R. CARTER, Texas
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
Page 5 PREV PAGE TOP OF DOCBLAINE MERRITT, Chief Counsel
DAVID WHITNEY, Counsel
JOE KEELEY, Counsel
ALEC FRENCH, Minority Counsel
C O N T E N T S
JUNE 17, 2004
The Honorable Lamar Smith, a Representative in Congress From the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
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
The Honorable Ric Keller, a Representative in Congress From the State of Florida
The Honorable Zoe Lofgren Keller, a Representative in Congress From the State of California
Page 6 PREV PAGE TOP OF DOCThe Honorable Marybeth Peters, Register of Copyrights, Copyright Office of the United States, The Library of Congress
Mr. Amitai Etzioni, Founder and Director, The Institute for Communitarian Policy Studies, George Washington University
Mr. Jack Valenti, President and Chief Executive Officer, Motion Picture Association of America (MPAA)
Ms. Penny Young Nance, President, Kids First Coalition
Material Submitted for the Hearing Record
Letter from the Honorable Marybeth Peters, Register of Copyrights, Copyright Office of the United States, The Library of Congress, clarifying answers to questions asked at the hearing and in a letter dated June 25, 2004, from Rep. Lamar Smith
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Response of The Honorable Marybeth Peters, Register of Copyrights, Copyright Office of the United States, The Library of Congress, to post-hearing questions from Rep. Howard Berman
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
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary
FAMILY MOVIE ACT OF 2004
THURSDAY, JUNE 17, 2004
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
The Subcommittee met, pursuant to call, at 10:07 a.m., in Room 2141, Rayburn House Office Building, Hon. Lamar Smith (Chair of the Subcommittee) presiding.
Page 8 PREV PAGE TOP OF DOC Mr. SMITH. The Subcommittee on Courts. the Internet, and Intellectual Property will come to order.
I will recognize myself for an opening statement, and the recognize other Members who wish to give opening statements as well.
Let me say to you all the I don't know quite how to explain why only one room in the Rayburn Building has had their air conditioning system broken, but apparently we do not have air conditioning in this room, and of course, anybody who wants to, can feel free to take off their jacket if it makes them more comfortable. Like I say, to me, I thought it was a unified air conditioning system, and why one room is lacking, I do not know.
Let me recognize myself for an opening statement.
Today we will hear testimony on legislation that is of vital importance to families across America. It helps ensure that mothers and fathers can provide a wholesome home environment for their children. A generation ago there was not nearly the amount of sex, violence and profanity on television and in movies that there is today. But I still remember how my own parents dealt with it. They had a small box with a switch on it, that they manually clicked to mute the television's audio if they felt it was inappropriate, or they would get up and turn the television off for a moment or two.
These days I don't think anyone would even consider buying a DVD player that doesn't come with a remote control that can be used for the same purpose. Yet, there are some who would deny parents the right to protect their children from sex, violence and offensive language on television.
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Raising children may be the toughest job in the world. Parents need all the help they can get, and they should be able to determine what their children see on the screen. Yes, we parents might mute dialogue that others deem crucial, or we might fast forward over scenes that others consider essential, but that's irrelevant. Parents should be able to mute of skip over anything they want if they feel it's in the interest of their children. And as a practical matter, parents cannot monitor their children's viewing habits all the time. They need an assist.
Companies developing electronic tools to help parents are spending money paying lawyers rather than providing services to families.
It is time for this Committee to act and let parents decide what their children watch. Remote control technology is not some form of evil. If you look at a DVD or a VCR before and after technology has been used to mute or fast forward over offensive material, there would be absolutely no difference in the product. It has been spliced, diced, mutilated or altered. The director's work is still intact. No unauthorized copies have been distributed. No copyright has been violated.
I want to emphasize that the legislation allows the use of technology only for private home viewing. There is no sale of DVD or VCR tapes. No commercialization is involved. Surely a parent can decide in the privacy of their own home what their child can watch on television.
I am pleased to see that the Register of Copyrights agrees that what some companies are doing today is legal under existing law. While she may feel that this makes additional legislation unnecessary, I believe that the financial burden of the ongoing litigation that has been imposed on companies like ClearPlay, that are operating legally, does make legislation necessary. Moreover, there is no certainty that all courts will agree, so the only way to protect the right of parents is in fact to pass legislation.
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Let me also point that this issue has been simmering for 18 months since the first lawsuits were filed. I had hoped that the parties would reach a negotiated solution, but none has been forthcoming yet.
Yesterday I introduced H.R. 4586 to resolve this issue by ensuring that parents who skip over muteskip over or mute content do not face liability under existing copyright or trademark law. Apparently legislation is necessary to end the unnecessary litigation. The Chairman of the Judiciary Committee and I are prepared to move this legislation on a stand-alone basis, whereby attaching it to another legislative vehicle to protect the right of parents to shield their children from violence, sex and profanity.
That concludes my opening statement, and the gentleman from California, Mr. Berman, the Ranking Member is recognized for his.
Mr. BERMAN. Thank you, Mr. Chairman. Before I give my opening statement, I just want to point out the irony of proposing legislation that the Register of Copyrights says will legalize that which is already legal in order to save one company some litigation expense, and the parallel of that. Perhaps we can just do away with the judicial system, leave the court clerks so that the lawsuits can be filed, and Congress decides how we think the litigation should come out, and then propose and pass legislation to produce that outcome.
I'm opposed to the legislation before us today. Maybe this hearing will convert me, but I doubt it. I have too many concerns about the nature and implications of this bill. Clever redrafting might address some of those concerns, but nothing can address my concerns about its basic premise.
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While I believe that parents should be able to protect their children from exposure to media they find offensive, I don't believe the legislation before us today will advance this goal. In some ways it may have the opposite effect. This legislation sends the wrong message to parents, namely that technology can fulfill parental responsibilities. In our modern world parents cannot control what their kids see and hear every minute of the day. Parents must, as Professor Heins testified on May 20th at our earlier hearing on this subject, parents must equip their children for exposure to offensive media, not just turn on the TV or movie filter and leave the room. Technology should not become an excuse for avoiding the hard work of parenting.
To be clear, I don't oppose the ClearPlay technology itself. Rather, I'm opposed to legislation that benefits one particular business over its competitors and abrogates the rights of copyright owners and trademark holders in the process. The marketplace is the proper forum for resolving this business dispute, not Congress. Congress should focus on encouraging the relevant copyright owners and trademark holders to work out a licensing deal for ClearPlay technology, not roil the waters with legislation that verges on a bill of attainder.
Unfortunately, the legislative activity on this issue appears to have already hampered the industry negotiations. I understand that following the May 20th hearing, ClearPlay presented new demands that represented a significant departure from its previous position in the negotiations. In other words, the positions of the parties, which had been fairly close before the May 20th hearing, are getting farther apart as the prospects for legislation improve.
Since neither ClearPlay nor any of its competitors have been found liable for copyright or trademark infringement, this legislation addresses a hypothetical problem. While a Federal District Court has before it a case raising these issuesa case I might add initiated by one of the technology companies, not by one of the copyright holdersit has not yet issued even a preliminary ruling. Furthermore, the Register of Copyright will apparently testify that ClearPlay is likely to succeed. In other words, there is no problem for Congress to correct. While legislation addressing hypothetical problems, like the law protecting fast food restaurants against obesity liability, is all the rage these days. It is not a trend with which I agree.
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Most importantly, Congress should not give companies the right to alter, distort and mutilate creative works, or sell otherwise infringing products that do functionally the same thing. Such legislation is an affront to the artistic freedom of creators and violates fundamental copyright and trademark principles. Where the underlying issue, the distinction of proponents of this bill, is this technology doesn't alter or mutilate the fixed product, it just filters out the material that the manufacturer of the technology wants to filter out, that that's a distinction whichthat should fundamentally make a difference, doesn't make real sense to me.
The sanitization of movies allowed by this legislation may result in the cutting of critically important scenes. The legislation legalizes the decision of a ClearPlay competitor to edit the nude scenes from Schindler's List, scenes critical to conveying the debasement and dehumanization suffered by concentration camp prisoners. A close reading of the bill reveals that it will also legalize editing that makes movies more offensive, more violent and more sexual.
Just as the legislation allows nudity to be edited out, it allows everything but nudity to be edited out. For instance, the legislation allows some enterprising pornographer to offer a filter that edits the movie Caligula down to its few highly pornographic scenes and endlessly loops these scenes in slow motion. The legislation would also appear to legalize filters that make imperceptible the clothes of all actors in a movie. Do the bill sponsors really want to legalize all-nude versions of Oklahoma and Superman? The types of edits legalized by this bill are limited only by editorial imagination. Anti-tobacco groups could offer a filter that strips all movies of scenes depicting tobacco use. Racists might strip Jungle Fever of scenes showing interracial romance, perhaps leaving only those scenes depicting interracial conflict. Holocaust revisionists could strip World War II documentaries of concentration camp footage. Fahrenheit 9/11 could be filtered free of scenes linking the houses of Bush and Fahd.
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Since the bill also applies to television programming, a number of troubling consequences may result. Digital video recorder services like TiVo, which enable their subscribers to digitally record TV shows for time-shifting purposes, might offer filters geared to those programs. This is not farfetched. At least one DVR service has already tried to filter out all commercials. In the future they might offer filters that cleanse news stories of offensive content, for instance, by editing out comments critical of a beloved politician. In fact, under the bill, the DVR service could unilaterally engage these filters without the permission of the TV viewer, and thus might choose to filter out stories helpful to a corporate competitor or critical of a corporate parent.
I know these outcomes are opposite to the intent of the bill's sponsors, but they are the unavoidable outcomes nonetheless, and these are just a few of the problems that are apparent after just a couple of days of looking at this issue.
I hope the Subcommittee will not rush to legislate in this area and will allow the marketplace to address the legitimate concerns of parents.
I yield back, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Berman. I actually like several of your ideas, particularly the one about editing criticism of popular politicians, but we can save that for another time.
Are there any other opening statements by Members? The gentleman from Florida is recognized for an opening statement.
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Mr. KELLER. Thank you, Mr. Chairman. First and foremost, I want to thank all the witnesses for taking time out of your busy schedules to be here.
Just as Berman started to make sense, he trashed my Personal Responsibility in Food Consumption Act that banned lawsuits against fast food restaurants, which I may add passed the Congress by a two-thirds vote, and supported by 9 out of 10 of the American public. If ClearPlay technology had existed and had silenced Berman's remarks on that issue, he almost could have had my vote, I suspected.
But this is an interesting issue that puts me directly in the cross-hairs of two competing interests from the area that I represent, Orlando, Florida, which is a very family-oriented youthful community that prides itself on the number one family vacation destination of the world, but is also home to companies such as Disney and Universal, which do have substantial movie-making interests, and so I feel a little bit like a fur sales at an animal rights convention on this issue. [Laughter.]
And in light of the fact that this issue puts me squarely in the cross-hairs of two very friendly groups to me, I appreciate the Chairman holding multiple hearings on this issue. I was just thinking this morning I don't have enough stress in my life, so it's good to keep dealing with this over and over.
I stand here todayand I had to get that full disclosure out of the way in the interest of straight talkthough as someone who is very open-minded on this issue, and appreciates very much the witnesses coming here. I certainly, on the one hand, understand directors and movie companies not wanting to have scenes which they believe are critical to them, edited out, that they may think change the focus of the movie. I also very much appreciate the technology used by companies like ClearPlay that takes movies and makes them all family friendly. I think it is am amazing technology. I think that the Nobel prize should go to people who give our community amazing technology that changes our lives like the George Foreman Grill and stadium seating in movie theaters and[Laughter.]
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technology that makes things family friendly.
So I really appreciate both sides of this issue and look forward to getting better educated on them, and thank the witnesses again for coming here today.
Mr. Chairman, I will yield back.
Mr. SMITH. Thank you, Mr. Keller.
Are there other Members who wish to make opening statements? The gentlewoman from California, Ms. Lofgren.
Ms. LOFGREN. Mr. Chairman, I won't make an extensive statement. I am looking forward to hearing as much of the testimony as I can, and I also wanted to mention how pleased I am to see Mr. Valenti, since he has announced his retirement, and I think it is enormously gracious of him to come by even though he is going on to brighter fields to share his views on this, certainly along with the other witnesses, but thank you very much, Jack.
Mr. VALENTI. Thank you, Ms. Lofgren.
Mr. SMITH. We will proceed, and I will introduce our first witness today who is the Honorable Marybeth Peters, the Register of Copyrights for the United States. Ms. Peters is the author of ''The General Guide to the Copyright Act of 1976,'' and has lectured extensively on copyright law. She received her undergraduate degree from Rhode Island College and her law degree with honors from George Washington University Law Center.
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Our next witness is Dr. Amitai Etzioni, who was named the first University Professor at the George Washington University, where he is the Director of the Institute of Communitarian Policy Studies. From 1987 to 1989 he served as the Thomas Henry Carroll Ford Foundation Professor at the Harvard Business School. Dr. Etzioni is the author of 24 books.
The next witness is Jack Valenti, who has served as the President and Chief Executive Officer of the Motion Picture Association of America for the past 38 years. Born in Houston, Texas, Mr. Valenti was the youngest high school graduate in the city, and became a highly decorated serviceman while serving in the Army Air Corps in World War II. He has a BA from the University of Houston and an MBA from Harvard.
Our last witness is Penny Nance, who is President of the Kids First Coalition, a nonprofit organization that works to educate Congress, State and local officials, and the media on a variety of issues relating to children. Kids First Coalition works to promote and encourage traditional families, as well as to help those in crisis pregnancies.
Welcome to you all. As you know, we have your written statements. We ask that you limit your testimony to 5 minutes, and without objection the complete testimonies of all witnesses will be made a part of the record.
Ms. Peters, before we begin with you, I'd like to take a minute to recognize Jack Valenti.
Jack, this may or may not be your last time to testify before a congressional Committee. I hope it's not your last, but if it is, I just want to thank you for your service to our country, for your service to your profession, whom you have served so well, as I mentioned a while ago, for 38 years. You have brought to the task intelligence, wit, integrity, credibility and even charm. Those are examples for all of us to follow, and we hope that even though you may go on to other endeavors, that certainly your example will continue with us to emulate.
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I'm tempted to quoteI think it was Bob Hope who said ''Thanks for the memories.'' And we certainly, if you do retire in the near future, we'll remember all of those good memories and we will remember them for a long time to come. So we appreciate your being here.
Ms. Peters, we'll begin with you.
STATEMENT OF THE HONORABLE MARYBETH PETERS, REGISTER OF COPYRIGHTS, COPYRIGHT OFFICE OF THE UNITED STATES, THE LIBRARY OF CONGRESS
Ms. PETERS. Mr. Chairman, Representative Berman, Members of the Subcommittee, I am pleased to appear before you to discuss H.R. 4586, the ''Family Home Movie Act of 2004.''
Litigation addressing whether the manufacture and distribution of software that automatically mutes certain sounds and skips past certain images in a motion picture when a consumer plays a DVD of the motion picture in the privacy of his own home is pending in Federal Court in Colorado. Although I'm reluctant to express a view on that pending litigation, it's necessary for me to do that in order to address the issues related to the merits of the bill.
The Family Movie Act would provide that it is not a copyright infringement for the lawful possessor of an authorized copy of a motion picture to make imperceptible limited portions of audio or video content of the motion picture in the private home viewing of an individual. It would further provide that the use of technology to make such audio or video content imperceptible is not an infringement.
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As I understand the technology, it involves software that instructs a DVD to mute limited portions of the audio content or to fast forward past limited portions of the audio-visual content of a motion picture in order to avoid exposing the viewer to language or images that the viewer might find offensive. To qualify for the exception no fixed copies of the altered version of the motion picture may be made.
I understand there's a scrivener's error that will be protectedthat will be corrected, rather, in the version that was introduced yesterday. The requirement that no fixed copy of the altered version may be made is supposed to apply to both the act of making the content imperceptible and the use of technology. The way it's worded in the bill that was introduced yesterday, it would apply only to the use of technology and not to the conduct.
The conduct that takes place in the context of individuals and families making private performances of movies in their homes. The legislation basically says that this applies only to private home viewing, and it would have defined, as the version I saw was, ''private home viewing'' as: viewing in a household by means of consumer equipment or services that are operated by an individual in that household and that serve only that household. My written testimony describes the bill as permitting private home viewing and as containing that definition.
The bill, as actually introduced, doesn't use that term, but the concept of private home viewing remains in the bill, which now uses that definition to describe the context in which the conduct is permitted.
Page 19 PREV PAGE TOP OF DOC I believe that both the conduct and the technology should be lawful, but I also believe that such conduct is already lawful.
For that reason and for others, I oppose enactment of this legislation. Should this conduct be permitted? For me it's a close call. We can all agree that someone watching a movie on a DVD has the right to press the mute button and to fast forward to avoid hearing or seeing parts of the movie. On balance I believe that a technology that basically automates that process for the consumer serves a beneficial purpose.
I do, however, have a number of reservations which I elaborate on in my written testimony. I will mention only one this morning. Permitting a product that results in altered performances of a motion picture certainly raises questions about whether the moral rights of the directors have been violated. Because this alteration consists of only bypassing limited portions of the motion picture in context with a private performance, where that altered performance is desired by the person watching the movie, I think there is no violation of moral rights.
But that is not to say that the creator of the motion picture does not have a legitimate artistic reason to complain, and I'm very sympathetic to those complaints.
In any event, it seems clear to me that under existing law this conduct and these products are lawful. I believe that in order to violate the right to prepare derivative works, that the derivative work must be fixed, that is, an actual copy of the derivative work must exist. According to my understanding of the technology, there is no fixation of a derivative work, and if that's true, there can be no infringement.
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I admit that my reading of the statute is at odds with what the 1965 Report of the Register basically recommended, and with the legislative history. However, I can't get to where they wanted to be with the language of the statute. I believe that fixation is required.
I do, however, with regard to new technology, see that looking at the derivative work right and what it should be and what its scope should be in light of new technology is something that we probably should in fact be doing, and I basically hope that we have an opportunity to do that.
Because I see that my time has run out, let me just quickly say that with regard to why I oppose it, I don't see a need for it. I think the law is already clear. Second, I see little risk that the law will find that this conduct is unlawful, and I'm not in favor of enacting legislation to fix a nonexistent problem. I'd rather take this opportunity to look at what new technology may cause with regard to real life problems.
I'd like to end by saying that I have a concern that basically with where we are, the pendency of this legislation will make the settlement in the Colorado litigation less likely, and enactment certainly will remove all incentive for the companies to work together to work out a negotiated settlement.
If you enact this legislation, please include a sunset provision that will expire in two or 3 years. That will provide continuing incentives for motion picture companies and companies that produce these products to negotiate and come up with arrangements that provide both family friendly versions of movies to the public and give directors and motion picture studios more control over how their works are presented to the public. If the negotiations don't work, then you can always renew the Act.
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[The prepared statement of Ms. Peters follows:]
PREPARED STATEMENT OF MARYBETH PETERS
Mr. Chairman, Representative Berman and Members of the Subcommittee, thank you for inviting me to appear before the Subcommittee to discuss H.R. 4586, ''The Family Movie Act.''
The Family Movie Act would make it lawful for a person who is watching a motion picture on a DVD in the privacy of his or her own home to use software that filters out certain types of content that the person would prefer not to see or hear. As you pointed out at a hearing last month, Mr. Chairman, such software can be used by parents to assist them in preventing their children from seeing or hearing objectionable content by muting the sound or fast forwarding past objectionable material. What material is to be filtered out is determined by the provider of the software, but such software can include options that give the user the ability to select categories of material that the user prefers not to see or hear.
I do not believe that such legislation should be enactedand 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 issuedor even sought. At the moment, providers of such software are free to sell it and consumers are free to use it. If the court ultimately rules that the making or distribution of the software is unlawfula ruling that I believe is unlikelythe time may then be opportune to consider legislation. But meanwhile, there is every reason to believe that the proposed Family Movie Act is a solution to a problem that does not exist.
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It is difficult to address the merits of this legislation without addressing the merits of the litigation in Coloradosomething that I would prefer not to do, in part because the litigation remains at a very early stage. The Copyright Office generally expresses its views on individual copyright cases only in those cases that involve important questions of copyright law and policy and in which an erroneous ruling would create precedent harmful to the appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. For example, I have spoken out on issues relating to copyright infringement on peer-to-peer networks while litigation involving those issues has been pending because I believe that mass infringement on such networks poses an unprecedented threat to creators and copyright owners. In contrast, I do not believe that the litigation relating to the subject matter of this legislation implicates such issues, and I have no desire to be drawn into the Colorado litigation.
Nevertheless, I cannot avoid offering some views on the current state of the law, because my recommendation against the enactment of the Family Movie Act is based in part on my conclusion that the conduct that it is intended to permit is already lawful under existing law.
Let me start with a proposition that I believe everybody can agree on. I do not believe anybody would seriously argue that an individual who is watching a movie in his or her living room should be forbidden to press the mute button on a remote control in order to block out language that he or she believes is offensive. Nor should someone be forbidden to fast-forward past a scene that he or she does not wish to see. And certainly parents have the right to press the mute and fast-forward buttons to avoid exposing their children to material that they believe is inappropriate.
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Does that mean that parents should be able to purchase a product that makes those decisions for themthat automatically mutes certain sounds and skips past certain images that the provider of that product believes parents would not want their children to hear or see? What if the parent is able to determine what categories of material (e.g., profanity, nudity, violence) should be blocked, and is willing to trust the provider of the filtering product to make the ultimate judgments about what material in a particular movie falls into the selected categories?
It is very tempting to say that consumers should be able to purchase such products, and that providers of such products should be permitted to develop and market them. But I have to say that I am hesitant to endorse that proposition.
First of all, 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 choiceone 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. Parents who have not prescreened a movie and made their own judgments can take guidance from the ratings that appear on almost all commercially released DVDs. Not only do those ratings label movies by particular classes denoting the age groups for which a particular movie is appropriate (e.g., G, PG, PG-13, R), but those ratings now also give parents additional advice about the content of a particular motion picture (e.g., ''PG-13 . . . Sexual Content, Thematic Material & Language'' (from ''The Stepford Wives'') or ''PG-13 . . . Non-stop Creature Action Violence and Frightening Images, and for Sensuality'' (from ''Van Helsing'')). It is appropriate that parents and other consumers should be given sufficient information to make a judgment whether a particular motion picture is suitable for their children or themselves to view. And there are many third-party services that supplement the information provided by the movie studios. For example, the ''Weekend'' section of the Washington Post contains a ''Family Filmgoer'' column that briefly summarizes current motion pictures and offers more detailed commentary on the suitability of each movie for children of various age groups. For example, last week's column made the following observations as part of its commentary on the current motion picture, Saved!:
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[H]igh schoolers may find it both humorous and intriguing. A little too adult for middle-schoolers, the movie contains a strongly implied sexual situation and rather romanticizes the idea of being an 18-year-old unwed mother. Other elements include profanity, sexual slang, homophobic talk, drunkenness, smoking and a jokey reference to bombing abortion clinics.
It seems that if a parent doesn't want a child to see offensive portions of a particular movie that's available on DVD, or if a person doesn't want to watch such portions himself, there is a simple choice: don't buy or rent the movie. In fact, those of us who are truly offended by some of the content found in many movies might ask ourselves whether we are doing ourselves or society any favors by buying or renting those movies. I have always had great faith in the marketplace, and I believe that if enough people simply refuse to spend their money on movies that contain offensive material, the incentives for motion picture studios to produce them will diminish.
I also have to wonder how effective such filtering products are. A review of one such product in the New York Times observed:
The funny thing is, you have to wonder if ClearPlay's opponents have ever even tried it. If they did, they would discover ClearPlay is not objectionable just because it butchers the moviemakers' vision. The much bigger problem is that it does not fulfill its mission: to make otherwise offensive movies appropriate for the whole family.
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.
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In ''Pirates of the Caribbean,'' ''God-forsaken island'' is bleeped, but ''heathen gods'' slips through. (So much for the promise to remove references to ''God or a deity.'')
Similarly, in ''Terminator 3,'' the software skips over the Terminatora cyborg, mind youbloodlessly opening his abdomen to make a repair. Yet you're still shown a hook carving bloody gouges into the palms of a ''Matrix Reloaded'' character.(see footnote 1)
Again, perhaps it's just better to avoid getting the offending movie in the first place.
Moreover, 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 dialog 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.
That brings me to an objection that is more firmly rooted in fundamental principles of copyright, which recognize that authors have moral rights. To be sure, the state of the law with respect to moral rights is relatively undeveloped in the United States, and a recent ill-considered decision by our Supreme Court has weakened the protection for moral rights that our laws offer.(see footnote 2) Moreover, I am not suggesting that enactment of the proposed legislation would violate our obligations under the Berne Convention to protect moral rights.(see footnote 3) In fact, I do not believe that the Berne Convention's provision on moral rights forbids permitting the making and marketing of products that permit individual consumers to block certain undesired audio or video content from their private home viewing of motion pictures. But beyond our treaty obligations, the principles underlying moral rights are important. The right of integritythe author's right to prevent, in the words of Article 6bis of the Berne Conventionthe ''distortion, mutilation, or any other modification of, or other derogatory action in relation to [his or her] work, which would be prejudicial to his honor or reputation''is a reflection of an important principle. As one leading commentator has put it:
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Any author, whether he writes, paints, or composes, embodies some part of himselfhis thoughts, ideas, sentiments and feelingsin 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.(see footnote 4)
I can well understand how motion picture directors may be offended when a product with which they have no connection and over which they have no control creates an altered presentation of their artistic creations by removing some of the directors' creative expression. This is more than a matter of personal preference or offense; it finds its roots in the principle underlying moral rights: that a creative work is the offspring of its author, who has every right to object to what he or she perceives as a mutilation of his or her work.
Although I acknowledge that there is some tension between principles of moral rights and the products we are discussing today, I believe that this narrowly-defined activity does not violate moral rights, for several reasons: (1) it takes place in the context of a private performance of a motion picture in which the alteration of the original motion picture is not fixed in a tangible medium of expression; (2) it consists only of omissions of limited portions of the sounds and/or images in the motion picture, rather than the addition of material or alteration of material in the motion picture; and (3) it is desired and implemented by the individual who is viewing the private performance, who is perfectly aware that there are omissions of material and that the director and studio did not consent to those omissions. But that is not to say that the creator of the motion picture does not have a legitimate artistic reason to complainand I am very sympathetic to such complaints.
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Nevertheless, despite my misgivings, I believe that on balance parents and other consumers should be able to purchase products that allow them to mute and skip past audio and visual content of motion pictures that they believe is objectionable. While the artistic integrity as well as the continuity of the motion picture may suffer, the person viewing the edited performance is fully aware that he or she is viewing a performance of less than the entire motion picture because that was his or her preference. Because only a private performance is involved, the only changes consist of deletions, and no copies of an edited version of the motion picture are made or further communicated, I do not believe the director or copyright owner should have the power to stop the marketing and use of software that renders such a performance.
One reason why I am reasonably comfortable with this conclusion is that, although the producer and marketer of the software is presumably making a profit from its sale, it is difficult to imagine any economic harm to the copyright owner. The software is designed to be used in conjunction with an authentic DVD of the motion picture. In fact, arguably some people who would not have purchased or rented a particular movie if they did not have the ability to skip past portions that they believe are objectionable will purchase or rent it if they can obtain the software for that particular movie.
ANALYSIS OF CURRENT LAW
Despite my conclusion that on balance, the conduct that is addressed by the Family Movie Act should not be prohibited, I do not believe that legislation needed because it seems reasonably clear that such conduct is not prohibited under existing law. The exclusive rights of the copyright owner that might arguably be implicated are the reproduction, distribution, public performance and derivative work rights, but on examination, it seems clear that there is no infringement of any of those rights.(see footnote 5)
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There is no infringement of the reproduction right because no unauthorized copies of the motion pictures are made. Rather, an authorized copy of the motion picture, distributed on a DVD, is played in the same manner as it would be played on any conventional DVD player, but with some of the audio and video content of the motion picture in effect deleted from that private performance because it is muted or bypassed. The distribution right is not infringed because no copies of the motion picture are distributed, apart from the authorized, unedited DVD that the consumer has purchased or rented. The public performance right is not infringed because the motion picture is played in the privacy of the viewer's home, a quintessential private performance.(see footnote 6)
Not surprisingly, the motion picture studios have not asserted claims of infringement of the reproduction, distribution and public performance rights. Rather, they have alleged infringement of the right to prepare derivative works. The analysis of that claim is a little more complex, but ultimately the result is the same: I believe that the arguments that such products infringe the derivative work right are weak.
The fundamental flaw in the claim of infringement of the derivative work right is that the only possible manifestation of a derivative work is in the private performance itself. It is true that the home viewer who uses one of these products to remove some of the movie's audio and/or visual content is seeing an altered version of the film. Such a version might appear to be an adaptation, or, in copyright parlance, a ''derivative work.'' But that is not my reading of the law. Section 106(2) of the Copyright Act gives the copyright owner the exclusive right to ''prepare derivative works based upon the copyrighted work.'' The question is, can you have a derivative work when no copy (or ''fixation'') of the derivative work exists? Is an altered private performance of a motion picture a derivative work when it leaves the copy of the motion picture intact and does not create a copy of the altered version?
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A review of the legislative history of the 1976 Copyright Act might lead one to the conclusion that the derivative work right can be infringed simply by causing an altered performance of a work. The reports of both the House and Senate Judiciary Committees on the 1976 Act state:
Preparation of derivative works.The exclusive right to prepare derivative works, specified separately in clause (2) of section 106, overlaps the exclusive right of reproduction to some extent. It is broader than that right, however, in the sense that reproduction requires fixation in copies or phonorecords, whereas the preparation of a derivative work, such as a ballet, pantomime, or improvised performance, may be an infringement even though nothing is ever fixed in tangible form.
H.R. Rep. No. 941476, at 64 (1976); S. Rep. No. 94473, at 58 (1976). I believe that when the House and Senate Reports spoke of derivative works, such as ballets, pantomimes, and improvisations, that are not fixed in tangible form, they were referring to public performances of works in altered form. There are strong policy reasons for recognizing a derivative work right when a work is performed publicly in an altered form, even if the alteration never exists apart from the performance. Certain types of works, such as the works mentioned in the legislative history, are exploited primarily by means of public performance rather than by sale of copies, and to require fixation of the derivative work in order to have infringement of the derivative work right could defeat the very purpose of recognizing a derivative work right.
However, while it may have been the intent of Congress not to make infringement of the derivative work right turn on whether the derivative work has been fixed, I do not find that intent expressed in the language of the statute. The exclusive right is a right to ''prepare derivative works based upon the copyrighted work.'' The question then becomes, what is a derivative work? Must a derivative work be fixed in a tangible medium of expression? Certainly in order to qualify for copyright protection, a derivative worklike any workmust be fixed in a tangible medium of expression. 17 U.S.C. §102(a). But is there a fixation requirement for infringement of the derivative work right?
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Although one might expect the extensive list of definitions in §101 of the Copyright Act to include a definition of as fundamental a term as ''work,'' no such definition is exists. However, §101 does tell us when a work is ''created:''
A work is ''created'' when it is fixed in a copy or phonorecord for the first time where; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.
If a work is created when it is fixed in a copy or phonorecord for the first time, it is difficult to imagine that the work exists prior to that time. Thus, the Copyright Act seems to have the functional equivalent of a partial definition of a work; while it may not tell us everything that we need to know in order to recognize a ''work,'' it does tell us that a work must be fixed in a copy or phonorecord. And if it is a work in progress, then at any point in time, the ''work'' consists of that which has already been fixed.
Because a plain reading of the statute leads to the conclusion that in order to have an infringement of the derivative work right, the derivative work must be fixed, I find it difficult to conclude that there is an infringement of the derivative work right when software instructs a DVD player to mute certain sounds or skip past certain images in a motion picture being played on the DVD. The putative derivative work is never fixed. Moreover, if, as I understand to be the case, the software itself consists of instructions to mute the soundtrack at a point a certain number of minutes and seconds into the performance of the movie, or to skip past the part of the movie that begins at a point a certain number of minutes and seconds into the performance of the movie and ends certain number of seconds later, I find it difficult to characterize that software as a derivative work, since none of the underlying work is actually incorporated into the software.
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There are other products in the marketplace that serve a similar function, but which are infringing and should not be permitted. For example, I understand that some products on the market consist of videotapes of motion pictures that have had allegedly offensive scenes physically removed from the videotape. In such cases, there isand ought to bea violation of the derivative work right: permanent copies of edited versions of the copyrighted motion pictures are made and distributed. They can also be redistributed, competing in the marketplace with legitimate copies and perhaps ending up in the hands of recipients who aren't even aware that they are edited versions. But it is not the intent of the proposed Family Movie Act to make those products lawful.
IS THERE A NEED FOR LEGISLATION?
Because I believe that under existing law, the conduct that is addressed by this legislation is already lawful, and because I believe it is likely that the district court in Colorado will come to the same conclusion, I do not believe there is any reason to enact legislation that would make lawful that which already is lawful.
I could understand the possible need for legislation if there were substantial doubt as to the outcome of the litigation, or if there was a pressing need to settle the issue once and for all by Congressional action due to an urgent need to permit conduct which people could not engage in unless the legislation were enacted. But no injunction has been entered. The defendants are still producing their products. Indeed, I understand that recently a major consumer electronics equipment manufacturer has begun to distribute a DVD player that has such software preloadedcompelling evidence that the pending litigation has not had a chilling effect. And, given my ambivalence about the desirability of permitting the conduct at issue here, I cannot endorse the notion that there is a pressing need to resolve the issue here and now.
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In fact, the issues raised at this hearing persuade me that we need to reexamine the derivative work right in order to determine whether the approach taken in 1976 still works in the 21st Century, when technological changes may well be making fixation an obsolete concept for purposes of determining when the derivative work right has been violated. While the technology that we have been discussing today is fairly benign, it is not difficult to imagine technologies that, without creating a fixation of a new derivative work, result in performances that do not simply edit out limited portions of the work that many viewers would find offensive, but either add new material or result in a rendition of the copyrighted work that so changes the character or message of that work that it constitutes an assault on the integrity of the work. The marketing and use of such technologies should not be tolerated, and I strongly believe that any legislation that affirmatively permits the use and marketing of the technologies we are discussing today should also expressly prohibit the use and marketing of technologies that result in performances of those more harmful alterations of a work.
Rather than enact narrow legislation that would create a safe harbor for the technologies that simply mute and skip content, a safe harbor thatas I have already explainedwe do not urgently need, I believe we should take a little more time and give a little more thought to the extent to which the derivative work right should require fixation as a prerequisite for infringement. As I have already noted, Congress's original, but apparently unrealized, intent was that there need not be a fixation of the work in order to infringe the derivative work right. We should take a fresh look at that judgment and ask under what circumstances, if any, fixation should be a requirement. For example, I believe that fixation should not be required in order to infringe the derivative work right in cases where there is a derivative public performancee.g., of a play, or a ballet, the types of performances that were addressed in that part of the legislative history that stated that there ''may be an infringement even though nothing is ever fixed in tangible form.'' Whether fixation should be a requirement in order to infringe the derivative work right where there is a only private performance may require a more nuanced approach, looking at the nature of the alteration from the original work. The result of such a study might be an amendment could be in the form of a new definition of ''to prepare derivative works based upon the copyrighted work'' to be added to section 101.
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Assuming that you do decide to enact legislation now, I will now turn to the specific legislative text that has been proposed.
THE FAMILY MOVIE ACT
The Family Movie Act would amend section 110 of the Copyright Act to provide that it is not an infringement of copyright for the owner or lawful possessor of an authorized copy of a motion picture to make limited portions of audio or video content of the motion picture imperceptible in the course of private home viewing of the motion picture. It further provides that the use of technology to make such audio or video content imperceptible is not an infringement. In order to qualify for the exemption, no fixed copy of the altered (i.e., edited) version of the motion picture may be made.
''Private home viewing'' would be defined as viewing for private use in a household, by means of consumer equipment or services that are operated by an individual in that household and that serves only that household. This definition is adapted from the definition of ''private home viewing'' found in section 119 of the copyright law, the statutory license for secondary transmissions of television broadcast signals by satellite carriers.
The legislation would codify what I believe is existing law: A consumer would be permitted to use technology, such as the software that we have been discussing, that automatically mutes parts of the soundtrack of a motion picture or fast-forwards past a part of the audiovisual content of the motion picture when the consumer is playing a lawfully acquired copy of the motion picture in the privacy of his or her own home. Not only would the consumer's use of that technology be noninfringing, but the manufacture and sale of that technology would also be noninfringing, to the extent that it enables the muting or fast-forwarding.
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The legislation would also provide that it is not a violation of the Lanham Act to engage in such conduct, but that to qualify for this immunity the manufacturer of the technology must provide a clear and conspicuous notice that the performance of the motion picture is altered from the performance intended by the director or copyright holder.
Mr. Chairman, as I have already stated, I do not believe that this legislation is necessary or desirable at this time. But if the subcommittee disagrees, then I believe that the language that you have drafted is a reasonable means of accomplishing your goals.
Mr. SMITH. Thank you, Ms. Peters.
STATEMENT OF AMITAI ETZIONI, FOUNDER AND DIRECTOR, THE INSTITUTE FOR COMMUNITARIAN POLICY STUDIES, GEORGE WASHINGTON UNIVERSITY
Mr. ETZIONI. Mr. Chairman, Members of the Committee, I greatly appreciate the opportunity to testify, and I strongly favor this bill. My main problem is, Mr. Chairman, that most of what I was going to say you already said, so let me try not to repeat too much of your well taken points.
I studied this matter for more than 40 years, not the new technology, but the need the protect our children from violent and vile material, first at Columbia University, then the year I served in the Carter White House, and most recently we prepared a special issue of the Chicago Kent Law Review to examine the first amendment issues, which allegedly are involved here, including the Heins argument that even minors at age 1 or 2 have full court first amendment rights, and nobody can protect them from any vile or violent material. Otherwise, their first amendment rights are, we are told, being abridged.
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The data is unmistakable, violenceand one of the merits of this bill, it covers not just pornography but also violence. Violence causes enormous harm to children. Our culture is awash in video games, movies, music which encourages violence, and by any sort of scientific measure, it's made children more predisposed to violent acts themselves, to drug abuse, to misbehaving in school. I don't want to take all the time to maketo list 1100 studies which show the harm done to children, especially by violence.
The argument that we cannot distinguish creative violence, which is essential to the story, from gratuitous violence, is completely unsustainable. Courts and other people have found very clear criteria to distinguish violence which adds nothing to the story, is just added to the movie so it will sell better in countries that don't speak English or for other gratuitous reason.
The only word I would like to add the your opening statement is parents don't only have a right, they have a duty to shape the educational environment of their children. That's what parenting is all about. So the notionespecially about young children, age up to 12that parents wouldthat they should leave them exposed to whatever the media puts in there, and that they're not allowed any help against it, I find undermining parents' ability to shape the educational environment of their children.
I ch0oseI have five sons. I cho0se the books they read, when they're young, when they once reach 12 or later, they make their own choices. I cho0se the school to send them to. I go to my board meetings of the school to participate in shaping what the school teaches them. And in the end, these are just minor forces countering the flood, which will not stop. So if we do not allow this technology to work, all we're going to do, we're going to leave all the other sources of media, video games and such, which reach our children, in place. And we're not allowed one of the few tools which allow parents to somewhat, help them somewhat in defending their children.
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The same fallacious arguments have been raised against other technologies. We were told when the V-chip was introduced, that it's going to be the end of the world. When ratings were introduced to the movies we were told that that's going to be end of creative skills. The evidence simply shows that no harm was done to the creative industry, but you slightly help parents to protect their children.
I see no, nothing wrong if TiVo or anybody else would, as a next step, make it easier to acquire edited versions, exactly as defined, for use in the private home, and maybe one day the industry will get around to issue us age-appropriate products, to allow us to buy videotapes and DVDs which are marked, ''These have been cleaned up for children 12 and younger,'' ''Those are suitable for adolescents,'' and ''Those are suitable for everybody else.''
Let me say in summary, I'm strongly in favor of the bill as drafted.
Let me add as a footnote, if I may, as a Jew, I very much regret you drawing the Holocaust into this, Mr. Berman.
[The prepared statement of Mr. Etzioni follows:]
PREPARED STATEMENT OF AMITAI ETZIONI
Mr. SMITH. Thank you, Dr. Etzioni.
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STATEMENT OF JACK VALENTI, PRESIDENT AND CHIEF EXECUTIVE OFFICER, MOTION PICTURE ASSOCIATION OF AMERICA
Mr. VALENTI. Thank you, Mr. Chairman. First I really want to thank you. I was deeply moved by what you said, and I'm grateful to you and Congresswoman Lofgren as well. These are trying times for me right now.
But this Committee has been the great protector of intellectual property, which I need not point out to this Committee, is America's greatest trade export, producing great surplus balances of payment while we're bleeding from trade deficits.
I want to thank you, Mr. Chairman, the Ranking Member, Mr. Berman, for 4077, H.R. 4077, which is I think one of the best measures that's come out of this Committee, and I hope it becomes law. Thank you for that.
And finally, Mr. Chairman, before I begin my pathetically ineloquent comments, I come before you with great reluctance. You've been a great champion and a great friend, and I find myself quite hesitant in trying to take issue with you on anything, so I hope you'll allow me to do this, because I really believe in what I'm about to say, but I do regret very much that we're on different sides on this. Please forgive me.
What I want to say here is simple and straightforward, and it's this, that it rests on two very impressive premises. And one of them is that the right to make derivative works, whether fixed or nonfixed, from a copyrighted work, is under law, under copyright law, a fundamental right that is exclusively the right of the copyright owner. And to change it, to diminish it, to shrink it, I think is not in the long-range interest of this country. And the second is, my second premise is, it is the marketplace, not the Congress, that ought to deal with these commercial disputes, and that's what they are. And before I finish here, I will tell you I think we're on our way to having it done in the proper way.
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Now, what this law tells us, I think with great clarity is, as I've said, that only the copyright owner has the right to determine who changes, produces a derivative work from his copyrighted work. Now, this movie filtering bill, I think would so seriously erode that, that allows somebody making money off of skipping scenes or dialogue, which disfigures the original vision of the creator who spent a year or two working on this movie, and it cost $100 million to make, and somebody somewhere in a back roomwe don't know who they arereally makes these kind of cuts. And Ms. Peters, in her comments, points out that even that is awkwardly done, and it doesn't even get the job done. So there's some kind of a misfigurement going on. It's not what the creator had in mind.
I fought for 38 years to both defend the first amendment and to make sure that artistic integrity could be preserved in this country. I think it is valuable, and I think in any way to dishonor it, is not good for this country.
Now, let me go on to what I think is important. I don't have any objection, nor do I think the creative people have, in people's homes to do what they choose to do with the technology, fast forwarding and all the stuff that they do, nothing wrong with that. But somebody, for profit, to come in and make these judgments, and then to display it and deploy it to the known western world is not right, it is just not right.
One objection is this, our objection is, I think for the Congress to give political and legal cover to companies who do this, by offering a disfigured version of a movie without regard to the creative vision of the director and approval of the studio just doesn't make any sense.
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That brings me to my second issue, my second premise. I would hope that this Committee would allow the parties to negotiate. Now, you know this has been going on for some time, Mr. Chairman, and you rightly said it's a long time. But I am not part of these negotiations because antitrust law prevents the MPAA from getting involved. So I can only tell you what I have been told and do in part believe. And that is that these negotiations are complex, multi-faceted, multi-tiered, and that these are negotiations that take both sides to agree. Now, what has happened is, that I've been told that the prospect of having victory handed to them, without having to go through these negotiations, is causing on the other side a diminishing incentive to negotiate.
I don't blame ClearPlay. Frankly, if I was in their shoes, I'd be doing exactly what they're doing, talk, talk, talk, but don't make a deal. Let Congress do it for you. You get everything free. Why negotiate? And I think that's pretty smart tactics on their part.
And therefore, Mr. Chairman, I think you should know that the studios, I am told, also are negotiating with another company providing the same services, called Trilogy. And Trilogy has sent a letter to this Committee saying, ''We believe the marketplace ought to decide this, as it has to do.'' This is a business agreement that Congress has no expertise in.
Now, I want to finish by sayingbefore that red light is going on, and dismays me considerably, I might add[Laughter.]
But I want to finish as I began, Mr. Chairman. I endorse your objectives, and that is to have more family friendly movies in choices for America, and we're doing that. All you have to do is go down and look at the top grossing pictures every week, and you will see increasingly at the top of the list the G and the PG rated films. Now, the reason why they're there is because they're a complete narrative. Other pictures are not a complete narrative, because if ClearPlay has its way, you will see something in there that will not only dismay you, it will puzzle you, because the conversation, the dialogue, the scenes that have been taken out, which rips apart the journey of the dramatic narrative. So I think with great passion, Mr. Chairman, I believe if you could go back and say, ''Negotiate now, it's going to be business negotiations, not a congressional law to do this,'' it will get done.
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[The prepared statement of Mr. Valenti follows:]
PREPARED STATEMENT OF JACK VALENTI
Chairman Smith, Mr. Berman, distinguished Members of the Subcommittee:
This Committee stands in the vanguard of the protectors of copyright and intellectual property in this country. You, Chairman Smith and you, Ranking Member Berman, both introduced H.R. 4077, which can be justly hailed as a valuable and important measure that protects copyrighted works. All those who work and create in the intellectual property communityAmerica's greatest trade exporthave deep gratitude for your championing of copyright. Which is why it is with deeply profound reluctance that I must testify in opposition to the movie filtering bill called the ''Family Movie Act.''
My brief here is simple and straightforward. It rests on two impressive premises. The first is that the right to make ''derivative works'' from a copyrighted work is, under copyright law, a fundamental property right belonging exclusively to the copyright owner, and should be preserved else copyright begins to decay. The second is that the marketplace, not Congress, is the best place to resolve the type of commercial dispute that gives rise to this legislation.
The law tells us, with great clarity, that the owner of a copyrighted workand only that ownerhas the authority to decide if someone else may produce a product derived from that copyrighted work. The title deed of this valuable principle has solid congressional roots. It is enshrined in Section 106 of the Copyright Act. It means that no one may usurp your right to prepare and sell, for example, an abridged version of your book, song, or movie because they think that some members of the public might pay for a version that eliminates certain parts of that creation.
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The movie filtering bill would seriously erode that core right by legalizing businesses that sell technology, for a profit, which can ''skip and mute'' scenes or dialogue to create an abridged version of a movie, as long as no ''fixed copy'' of the altered version is created. Of course, we understand that the purpose of the bill is to come to the aid of commercial services that, without permission of the owners of the copyright, use this technology to create so-called ''family friendly'' versions of movies. These versions delete scenes or mute dialogue that the service's employees deem too violent, too coarse, too suggestive, or otherwise may be objectionable to some members of the American public.
But the legislation is in no way cabined to permit only such services to flourish, and, consistent with the First Amendment, probably could not. Anyone could use this statute to go into business to sell abridged versions of movies for any purpose: to skip every part of the movie except the violent scenes; to remove any reference to, say, interracial dating; or simply to offer a one-hour version of a classic movie like ''Saving Private Ryan,'' eliminating all the parts somebody thought were nonessential. And while this legislation is confined to movies, is there any principled difference between businesses that make their money offering edited versions of someone else's movies and those that would offer edited music or books distributed in digital form?
The inroads into copyright law allowed by this bill could have other unhappy consequences. Failure to adequately protect the exclusive right of copyright owners to authorize the making of derivative works and the rights of authors would violate U.S. obligations under the Berne Copyright Convention. Moreover, a breach of the obligation relating to derivative works would be actionable under the WTO TRIPS provisions.
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The future of our creative industry, and its spectacular nourishment of the U.S. economy, depends on the ability of U.S. trade negotiators to persuade other nations to respect our copyrights by strictly complying with their international obligations under the Berne Convention and the WIPO Copyright Treaty. I ask you to consider this indisputable truth: if the Congress enacts a law that is inconsistent with our international obligations, our ability to insist that our trading partners comply with their obligations to us is severely undermined.
It is obviously in our companies' interests to produce movies that appeal to a large number of people of all ages, call them 'family friendly' or however you describe them. And we do not, of course, object to people in their homes for our own personal tastes fast forwarding through scenes they might not want to watch, or might not want their children to watch. Our objection is simply to Congress providing legal cover to companies that want to make a profit by offering an edited, abridged version of a movie without regard for the wishes of the director who created the movie or the studio that owns the copyright to the movie.
That brings me to my second point: I ask you to allow the parties and the market to sort this out without any legislation. Is that not a sensible, reasonable suggestion?
As you know, Mr. Chairman, there is pending litigation in the court that will decide the dispute between the parties. This litigation includes the commercial concerns that sell a variety of kinds of ''movie filters,'' the movie studios that own the copyrights, and the directors who created the movies being abridged. More importantly, there are also ongoing productive negotiations between individual studios and the editing services to try to resolve this dispute through licensing agreements acceptable to all sides. The essence of this solution would involve the studios, in consultation with the directors, creating ''airplane-like'' versions of popular movies. The commercial editing services would use these versions as templates from which to prepare their alternative versions.
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These negotiations are complex, multi-issued, and multi-sided. These are not negotiations that the antitrust laws permit to be carried out by the MPAA, operating as an association. Instead, each studio must discuss the terms and conditions of any licensing agreements individually with each of the film filtering firms. I am, therefore, not privy to the exact details of the negotiations between the individual studios and the filtering companies. I do understand that substantial progress has been made, and there is hope for a light at the end of the tunnel.
However, I am also hearing that the prospect of having victory handed to them by legislation may have dampened the enthusiasm of one side to come to fair terms. It is self-evident that if a party believes that it will obtain everything that it wants for free, there is less incentive to bargain in good faith.
I hold out great hope that agreements can be hammered out that would result in acceptable commercial and artistic choices for everyone. Any settlement agreed to among the parties is far more likely to accommodate all the interests concerned than any legislative solution imposed upon them. This is a decision that needs to be developed in the marketplace between commercial firms, and is unsuitable to being judged and decided by legislation.
I know that this has taken time. But give us the chance we need to attempt to work this out. We all know that the threat of potential legislation will continue to hang in the air. We just ask that a clear message be sent to all sides: ''Work this out as business groups do every day, by negotiation, not by legislative threat.''
Page 44 PREV PAGE TOP OF DOC Mr. Chairman, I have no quarrel with your objective: to increase choices for families who want to watch our movies. We want the same. But, with much passion, we believe that goal has to be achieved through business agreements that make sense in the marketplace. Pushing this legislation through now will not, I fear, be seen in the fullness of time as a boost for America's parents, but as a unnecessary blow to the first principles of copyright.
Thank you, Mr. Chairman, and your colleagues on the Committee.
Mr. SMITH. Thank you, Mr. Valenti.
STATEMENT OF PENNY YOUNG NANCE, PRESIDENT, KIDS FIRST COALITION
Ms. NANCE. Thank you, Mr. Chairman and Members of the Committee, and it it's not fair that I have to go after the charming and eloquent Mr. Valenti, but I'll try my best.
My name is Penny Young Nance, and I'm the President of the Kids First Coalition. We're a nonprofit educational and advocacy group that I founded with the goal of protecting children and advancing pro-family legislation. I sit before you not only as a pro-family advocate, but also as a very concerned mother of two young children.
Today I'm here to represent members of my organization, mostly moms who downgraded professional careers to stay home full time, or like I do, part time with their children, as well as countless parents across the country that seek to protect their children from graphic sexual images and violence which unmistakably damage our children.
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The Kaiser Family Foundation reports that 95 percent of children, ages 0 to 6, live in a home where there's a VCR or a DVD player. They say that on average these kids watch just the VCR or DVD playerthis is not totaling in television time40 minutes a day. And of course, we all know that not everything viewed by these children is age appropriate. Recent studies by the American Psychological Association and the American Academy of Child and Adolescent Psychiatry, both say that the major effects of seeing violence on TV or movies are children may become less sensitive to the pain and suffering of others, children may be more fearful of the world around them, or even worse, children may become more likely to behave in aggressive or hurtful ways toward others.
On the issue of a child's exposure to viewing graphic sex, Donna Rice Hughes' group, Enough is Enough, has found that kids exposed to the viewing of graphic sex scenes begin to view sex without responsibility as acceptable and even desirable. And no big surprise, in the long range with this kind of view inculcated in their little hearts, often leads to damaging behavior and STDs and early teen pregnancies. It's a problem. Even without the science, which overwhelmingly concurs, parental instinct and basic common sense tell us to shield our kids from graphic sex and violence on TVs and movies.
I'm not an expert on copyright issues, and nor does my organization take any kind of a position, except to say that stealing is wrong, and parents need to teach their children to respect other people's property. On the other hand, I don't believe that the entertainment industry should try to keep helpful technology, such as ClearPlay, from parents.
As a parent I welcome all technology that gives parents options to protect their kids, and I even challenge the entertainment industry to work with technology leaders, families and parents groups, to develop even more market-based approaches.
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Ultimately I think this will help the industry by opening up new markets, and I'll give you an example of how from my own experience. As I mentioned earlier, I'm the mother of two young children, and my son loves Spiderman. I was shopping recently in Target, with about, you know, 200 other women just like me, walking through the aisle, and I came across a kiosk with the Spiderman DVD. In fact I have it here today. Now, at that time I did not purchase it. I paused in front of the kiosk. I toyed with buying it. I wanted to get it for him because he loves it so much. He's so interested in super heroes, and I wanted to buy it. But ultimately I walked away. I didn't purchase it because it's too violent for him, it's too dark. He could not see it.
Fast forward a week or two. I went out and purchased a DVD player with the ClearPlay technology. I also purchased at the same time the Spiderman DVD, and I brought it home, I hooked it up, with some help from my husband, actually. [Laughter.]
I was able to choose to filter, out of 14 different categories, that I could choose from and decide what was appropriate for my children and what was not.
I have included in my testimony all of the categories, but the main areas were violence, language, sex and nudity, and even drug use. Using all of the filters I screened the DVD, and now I feel comfortable with allowing my children to view at least part of it. I mean it's a dark movie, so a little bit goes a long way, but now they can see it, and I bought it because now I am confident.
Without ClearPlay I would not have purchased the DVD. What a great tool to help me to protect my kids. And I hear this, you know, from moms as I do call-in, you know, talk radio shows, callers call in. Just from my own experience as a soccer mom, one of the top concerns of American women is how do we protect our children from being inundated with scenes of graphic violence and sex and language. How do we protect our kids?
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So we are thrilled to have any kind of new technology that helps us. We can't put them in a bubble. They live in the world that we live in. There's lot of images every day that they're inundated with.
Now, not all movies are appropriate for kids, and again, parents still have to use discretion, but it's just great to have one more tool. New technology is so valuable to us as a country, but with it comes challenges and responsibilities. I always tell parents that they must be the first line of defense and remain vigilant against all threats. ClearPlay or any other technology is simply a tool and not a substitute for parental oversight. If there's a question, I still watch the movie first to make sure the material is age appropriate even with the filtering system. Even as adults it's important to be cognizant of what we feed our minds. There are certainly DVDs I'll feel more comfortable buying now or renting for my husband and I with the use of ClearPlay.
There's a biblical proverb that says: As a man thinks in his heart, so is he. And the secular version is: garbage in, garbage out. So it's good for all of us.
In closing, the Kids First Coalition is grateful for new technologies like ClearPlay that support parents and protect kids.
Thank you for allowing me to testify before you today with just such a great group of people here.
[The prepared statement of Ms. Nance follows:]
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PREPARED STATEMENT OF PENNY YOUNG NANCE
Hello, my name is Penny Nance and I am the President of Kids First Coalition, which is a non-profit educational and advocacy group I founded with the goal of protecting children and advancing pro-family legislation. I sit before you not only as a pro-family advocate but also a very concerned mother of two young children.
Today, I am here to represent the members of my organization, (mostly moms who have downgraded professional careers to raise kids) as well as the countless parents in this country who seek to protect their children from graphic sexual images and violence which unmistakably damage children.
The Kaiser Family Foundation contends that about 95% of American children ages 06 live in homes with a VCR or DVD player. They say that these kids watch a DVD or video about 40 minutes per day. We of course all know that not everything viewed by these kids is age appropriate.
Recent studies by the American Psychological Association and the American Academy of Child and Adolescent Psychiatry both say that the major effects of seeing violence on TV or movies are:
Children may become less sensitive to the pain and suffering of others
Children may be more fearful of the world around them
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Children may be more likely to behave in aggressive or harmful ways toward others
On the issue of a child's exposure to the viewing of graphic sex, Donna Rice Hughes' organization Enough is Enough has found that kids exposed to the viewing of graphic sex scenes begin to view sex without responsibility as acceptable and desirable. No big surprise, these attitudes can often lead to teen pregnancy and sexually transmitted diseases.
Even without the science, which overwhelmingly concurs, parental instinct and basic common sense tell us to shield our kids from graphic sex and violence on TV and movies.
I am not an expert on copyright issues nor does my organization take a position except to say that stealing is wrong and parents need to teach children to respect other people's property. On the other hand, I do not believe that the entertainment industry should try to keep helpful technology such as ClearPlay from parents. As a parent I welcome all technologies that give parents options to protect their kids. I even challenge the entertainment industry to work with technology leaders, families and parents groups to develop even more market based solutions. Ultimately, I think this will help the industry by opening up new markets. I will give you an example of how.
As I mentioned earlier, I am the mother of two young children. My son loves Spiderman. A couple of weeks ago I was shopping in Target and I paused in front of the Spiderman DVD. I toyed with buying the DVD but I decided against it because it is just too violent for him. Last week, I bought a new DVD player with ClearPlay and a Spiderman DVD. After hooking up the new DVD player I was able to specifically choose to filter out fourteen categories of material and then password protect my choices. I have included all the categories with my written testimony but the main areas were violence, language, sex and nudity and illicit drug use.
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Using all the filters, I screened the DVD and now I feel comfortable allowing my children to view at least part of the movie. Without ClearPlay, I would have not purchased the DVD. What a great tool to help me protect my kids. Of course even with this new technology, not all movies are appropriate for kids. Again, parents still need to use discretion but its great to have one more tool.
New technology is so valuable to us as a country, but with it comes new challenges and responsibilities. I always tell parents that they must be the first line of defense and remain vigilant against all threats. ClearPlay or any other technology is simply a tool not a substitute for parental oversight. If there is a question, I still watch the movie first to make sure the material is age appropriate even with the filter system. Even as adults it's important to be cognizant of what we feed our minds. There are certainly DVD's I will feel more comfortable buying or renting for my husband and I with the use of ClearPlay. There is a biblical proverb that says, ''as a man thinks in his heart so is he.'' The secular version of that saying is garbage in garbage out.
In closing, the Kids First Coalition is grateful for new technologies like Clear Play that support parents and protect kids. Thank you for allowing me to testify before you today.
ClearPlay Filter Settings
Page 51 PREV PAGE TOP OF DOCThere are 14 different ClearPlay Filter settings. Each of these settings can be turned on or off. This allows for over 16,000 potential user configurations.
1. Strong Action Violence: Filters excessive or repeated violence, including fantasy violence.
Strong Fantasy/Creature Violence
Sustained/Repetitive Violent Actions
Crude Comic Violence
2. Gory/Brutal Violence: Filters brutal and graphic violent scenes.
Fierce, Brutal Violence
3. Disturbing Images: Filters gruesome and other disturbing images.
Macabre Images, Dead/Decomposing Bodies
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4. Sensual Content: Filters highly suggestive and provocative situations and dialogue.
Highly Sensual Dialogue and Situations
Highly Provocative and Revealing Clothing
Highly Provocative Innuendo
5. Crude Sexual Content: Filters crude sexual language and gestures.
Overt Crude Sexual Language
Overt Crude Sexual Actions or Gestures
Crude Sexual Slang or Idiomatic Expressions
6. Nudity: Filters nudity, including partial and risqué art nudity.
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Partial Nudity/Veiled Nudity
7. Explicit Sexual Situation: Filters explicit sexual dialogue, sound and activity.
Sex Related Sounds
Sexually Explicit Actions/Images/Dialogue
8. Vain Reference to Deity: Filters vain or irreverent references to God or a deity.
9. Crude Language and Humor: Filters crude language and bodily humor.
Crude Scatological Word/Sound
Crude Scatological Image
Page 54 PREV PAGE TOP OF DOC10. Ethnic and Social Slurs: Filters ethnically or socially offensive insults.
11. Cursing: Filters profane uses of hell and damn.
12. Strong Profanity: Filters swearing and strong profanities.
13. Graphic Vulgarity: Filters harsh and vulgar words and phrases.
14. Explicit Drug Use: Filters vivid scenes of illegal drug use.
Drugs being used in a vivid/graphic manner.
Mr. SMITH. Thank you.
Ms. Peters, let me direct my first question to you. You said in your written testimony, ''I believe that, on balance, parents and other consumers should be able to purchase products that allow them to mute and skip past audio and visual content of motion pictures that they believe is objectionable.'' And you said that, ''It seems reasonably clear that such conduct is not prohibited under existing law.'' And in your oral testimony a few minutes ago, you were less than, say, absolute in your feeling that this is legal. You mentioned authorities, in fact, on the other side.
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My question for you is, yes, we do have a court case in Colorado; we know how you think it is going to rule. But we really do not know how other courts across the country might rule, and there is such a thing as forum shopping. You have Members of Congress, including at least one individual here today, who is opposed. So there is opposition. There are other individuals, including panelists, who feel that copyright law is being infringed.
Why, then, shouldn't we inject some certainty into the equation and pass legislation so that there is not this uncertainty and so that you have more confidence in your statement as well?
Ms. PETERS. I do have confidence in my statement. Obviously, people see things differently, and I have spent the better part of the last 2 weeks asking many academics and people in the copyright industries how they perceived this issue.
I believe very strongly that the view I expressed is, in fact, the correct view, and I think that is the view that the court is going to reach. So
Mr. SMITH. Well, I hope you are right, but you cannot guarantee that any court where a suit is brought
Ms. PETERS. I can never guarantee any court will ever do anything that I think is right.
Mr. SMITH. And that is my point. I think that is a good reason for the legislation, but thank you.
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Dr. Etzioni and Ms. Nance, both of you all came to the same conclusion, though from different perspectives. Dr. Etzioni's was more of an analytical approach. Ms. Nance, you are the only mother present, and that was a personal approach. But your conclusion was that children are harmed. More specificallyDr. Etzioni, let's begin with youhow are children harmed by this culture issue of violence?
Mr. ETZIONI. Well, you choose the social science measure, if it is more a predisposition to crime, more likely to act out aggressively in school, doing less well on academic tests. You choose the measurement, and there is a strong correlation, like also to science studies. We could spend a week arguing about chi squares and such. But at the end of the day, every timethere have been done what we call mega-reviews that has summarized the study of the 1,100 relevant studieswe come to the same conclusion. There is a strong correlation between exposure and antisocial behavior.
I would very briefly mention one study because it is particularly telling. There were three Canadian villages who were behind a mountain at an earlier age before we had cable and all that. And, therefore, they could not get a TV signal. Then, finally, they were ''blessed'' and they got TV signal. There was a significant rise in crime in the months and year that followed, but all the other villages stayed at the same level. This is just one of the many studies.
Mr. Chairman, if you will allow me one other comment, as to the notion which was just explored that the bill may be in some way redundant, let me say it is very important for Congress to express its values even if it is redundant, especially given that previous bills which dealt not directly with this technology but this issue, like CIPA and COPA, did not cover violence. Their only concern is pornography, which the evidence is there, but not nearly as compelling as violence. So I congratulate you on helping us have a technology which will also protect our children from violence.
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Mr. SMITH. Okay. Thank you, Dr. Etzioni.
Ms. NANCE. Well, Mr. Chairman, many of you will remember, some of you have small children, but children are basically sponges. They absorb so much more than we do. They are taught by so many different sources than just parents. We as parents wish that we were the only place that they took information from, but that's not the case. And we know from just, you know, our daily interactions with our kids that they're very affected by what they view, what they watch.
I read something that Parents Television Council put out not too long ago about some interviews and a study they had done with teachers, and they noticedthese parentsor, excuse me, these teachers had noticed on the playground that on Monday morning, or whatever day it was, that the kids were particularly violentfighting, kicking. You know, it seemed like this one day of the week they had more problems than any other time.
They started digging and trying to decide, you know, what was the problem, what was happening. They discovered that on this particular night before school they were watching WWF Smackdown, which is Worldwide Wrestling Federation Smackdown. It was the violent images were affecting their behavior directly the next day.
That's not shocking. Moms know that. And my own child, you know, we don't even have cable in our house. That's how careful I am. My child was watching a show on Saturday morning, and I noticedyou know, she's only 7, but she was using very sort of teenager slang to me and being slightly disrespectful. And I suddenly put two and two together. She was imitating what she was hearing these older kids say.
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What they watch affects them deeply.
Mr. SMITH. Thank you, Ms. Nance.
Without objection, I'm going to recognize myself for an additional 30 seconds, and that's to ask Mr. Valenti a question. Mr. Valenti, your testimony expressed some concern about the commercialization of these movies that might have been filtered. I am hoping to reassure you, in our legislation we explicitly say that it is for private home viewing, we use one phrase, and private use as well. We do not endorse nor contemplate the sale or commercialization of movies that have been filtered. We're talking about private home, individual parent and child-parent relationship. Is that reassuring to you that we're keeping it within those confines?
Mr. VALENTI. I wish I could say yes, but the answer is no, because ClearPlay is a commercial company. It's selling this, and I guess it hopes to increase its sales exponentially over the years. So
Mr. SMITH. But, actually, the sales of movies might increase as well if families were reassured by the content not being offensive.
Mr. VALENTI. I'm not going to quarrel with that because the family must purchase, so it's not a question of loss of revenue. But I think of something just as valuable. It's the loss of creative integrity; it's the loss of dramatic narrative. It's somebody, as I said earlier, that works a year, 2, 3 years on a project, a movie, and then have it disfigured in a way that is contrary and despoiling of the creative vision of not only the director and his creative team but the copyright owner as well.
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Mr. SMITH. Okay. As you said, this is one of the few times where we disagree, but I thank you for your comment.
Mr. VALENTI. Thank you.
Mr. SMITH. My time has expired, and the gentleman from California is recognized.
Mr. BERMAN. Thank you very much, Mr. Chairman.
First, I want to differentiateI want to just not take exception, but your conclusion about my position, the notion that I would have an informed opinion about whether ClearPlay's technology violates copyright law gives me a level of credit for knowledge that I do not deserve. I have no ideaI mean, I'm interested in the different arguments. I think we have a court that's going to make that decision. I am interested in the Register's opinion of the issue, and I'd like to ask Ms. Peters just a couple of questions.
The bill essentially says copyright law isn't violated in the making of limited portions of audio or video content of a motion picture impresentableimperceptible by or for the owner of an authorized copy of that motion picture. So that would be Ms. Nance in her home, the owner of an authorized copy, showing it in her home using this filtering technology to make the scenes that she wants to help keep her child from seeing imperceptible.
If the maker of the film in selling the DVD or the videocassette or the digital transmission makes as a matter of contract law a limitation that says you are not authorized to filter out frames that you don't like, under this bill as written now would the owner of this copy be allowed to use this filtering technology?
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Ms. PETERS. My understanding, at least at present, is that where there are exceptions in copyright law, they do not trump contractual provisions.
Mr. BERMAN. That's right.
Ms. PETERS. And, therefore, the issue is whether or not it's a contract of adhesion that would not be basically upheld. Sobut my guess is that the answer would be that the contract, if it wasn't a contract of adhesion, would have to be honored.
There's a separate issue with regard to enforcement, because the truth of the matter is that would only apply to the purchaser of the DVD, not to ClearPlay.
Mr. BERMAN. So the irony is that if it is not a contract of adhesion, if it's clear and done in a way to make sure that it avoids that particular problem, your view of existing law would give the parent freer reign under the present system than this bill, if enacted as it's presently written, would provide for the case where a contract would trump.
Ms. PETERS. Maybe yes.(see footnote 7)
Mr. BERMAN. All right. Dr. Etzioni talks aboutand, I mean, I think this is a very important issue, this question ofI don't know the answer to it. I hear his study of the three Canadian villages. I also am told that no place in the world is the level of violence in videos greater than in Japan, a country with a substantially lower rate of violent crimes than the United States. I meanI mean, people agree or disagree, and I truly, just like I can'tI wouldn't pretend to know just how copyright law should be interpreted. I wouldn't pretend to fundamentally know what the answer to this question is, but I think it's certainly a legitimate area. But I would like to ask Dr. Etzioni howwhat he thinks of somebody who developed a filtering technology that took any of his many articles or 24 books and, without his consent, eliminated a variety of different positions in those books, and then through that filtering technology allowed people to read something very different than he wrote or consented to.
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Mr. ETZIONI. On the first point, Congressman Berman, without going into Japan and Indonesia and all the other variations
Mr. BERMAN. Canada is okay but Japan is not?
Mr. ETZIONI. No, I am happy to go country by country, but I want to suggest a shortcut. If you're willing to rest the case on any panel of social sciencethe National Academy of Science, the American Association of Psychiatryyou choose the panel who reviewed these data, and you're willing to abide not by my or somebody else's summary but by the six panels of experts, this bill will be welcomed by all of them because there have been endless reviews of the literature. And you're right, there's a study here that shows that when they're all put together, they leave no doubt.
Mr. BERMAN. All right. Well, I think there's a case to be made, and that's why we have ratings, and Mr. Valenti is responsible for that rating system. That's why we generally agree that parents should keep their kids from seeing certain things, certain movies, readingcertain video games, certain books at a particular point in life.
What about my second question?
Mr. ETZIONI. Right. Anytime you find in any of my books anything which would be offensive or hurtful or harmful to children, please tear out that page. And I'll provide the scissors. There is no question that we're not talking about disfiguring anything. That movie is the same. It is not changed one iota after children be protected from its scenes.
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There is no parent alive who will think that everything we allow adults to view should be also exposed to minor children.
Mr. BERMAN. But the bill
Mr. SMITH. The gentleman is recognized for an additional minute.
Mr. BERMAN. Thank you. The bill you are embracing, I mean, you made a commentand I congratulate you, Mr. Chairman, for not just includingallowing filtering out of pornographic scenes but of violent scenes. This bill doesn't talk about pornography and violence. It talks about filtering anything that the designer of the software wants to provide a filter for and then the parent chooses, including some of the scenes that you resent that I referenced. That's your right. But the bill is totally neutral on the issue of what things ClearPlay can design filters for, not pornography and violence but anything. You can design it to enhance the level of violence by eliminating the non-violent scenes and the non-pornographic scenes. You can distort this any way you want as you improve this technology.
Mr. ETZIONI. Your distortion is my protection of my children. But I'm delighted to hear that it can be used for other purposes. If I'm a devout religious person and there's a movie which my children are asked to view for school next week, and I believe that most of it is of great merit but there is some scene that offends my religion, I'd very much like to have a technology to protect them from it up to a certain age, say up to age 12, we can argue. And so the fact that it allows additional filtering is extremely welcome.
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Mr. SMITH. Thank you, Mr. Berman.
The gentleman from California, Mr. Keller, is recognized for his questions.
Mr. KELLER. Thank you, Mr. Chairman. From Florida, but I appreciate that.
Mr. SMITH. What did I say?
Mr. KELLER. You said California.
Mr. SMITH. I'm sorry. I know better. The gentleman from Florida. One of those States on the ocean, right.
Mr. KELLER. A lot of people confuse me for Arnold Schwarzenegger with our physiques. It happens all the time. [Laughter.]
Listening to thisand I swear on my life that I'm objective here and in the middleit seems to me that there may have been a major strategic error in the directors adding ClearPlay to the suit. That's just what it seems like to me, and I'll tell you why, and I certainly think there's some merit to the suit and I can understand why it was filed. There are companies out there who break encryption codes, and they change words and they blur nudity and they reproduce edited versions of a DVD on another DVD. That seems to me a crystal-clear violation of copyright law, and I can understand why that suit was brought.
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But adding ClearPlay, which doesn't do any of thatand they merely sell the consumer a filter which the consumer chooses to buy or not buy, and then goes to Blockbuster and puts that in and skips over certain objectionable words or scenes, and then sends back to Blockbuster the movie in the exact same conditionis all that ClearPlay does here.
And when I hear that, well, we shouldn't act and just let the parties negotiate, I can certainly understand that, you know, you have the Register of Copyright Office saying ClearPlay is not doing anything wrong and that's all they're doing, yet this company has been in a suit for 2 years, had to spend over $1 million. Summary judgment has been pending for 6 months, and we know after that that at the end of it, whoever loses is going to go up on appeal, and there's going to be millions and millions of more dollars. And that's a lot to ask a small company who most folks think are not doing much wrong.
Again, I'm not trashing the suit. There's a good reason for the suit with these other folks. But I'm wonderinglet me start with Mr. Valentiif that's essentially the case, is there any hurt at all to the financial bottom line of the movie companies based on the technology filters that ClearPlay is selling?
Mr. VALENTI. I don't know about what financial losses or gains are there because this is a new technology. I don't think itit's had only a minuscule entry into the marketplace to this hour.
Mr. KELLER. Okay, because from what I hear, there are different objections raised by your side, and I say ''your side,'' the studios and directors collectively. The financial one doesn't seem to have much merit to me at this point. The one that seems to carry weight is, hey, I'm Steven Spielberg, and I directed this ''Jaws'' movie, and I don't want you taking out this scene with Jaws coming onboard, and that's a critical part of the movie. That makes some sense to me, and I'm sympathetic to that. But the financial side, I haven't seen the testimony in two hearings to support that.
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Ms. Peters, did I characterize your testimony about accurately there?
Ms. PETERS. Yes, you did.
Mr. KELLER. Okay. And you're the one who said what you said, but yet you still feel we should wait because what they're not doing is not illegal in your view. Can you understand in light of the resources of this little company being depleted, which it looks like, at least in some people's mind, like they're not doing anything wrong but they may not have years and years to go, you know, paying over $1 million a pop to defend this litigation.
Ms. PETERS. I understand, I do understand that concern. But that's true for all small companies and start-up businesses. So the question is: You as policymakers, at what point do you step in to put an end to the problem? For me, it's very difficult here because the court has not even ruled onat this moment, I understand that there may be a cloud and there may be the appeal hanging. But there is no injunction out there stopping them from doing this.
I think the lawthat it will come out that it will deny summary judgment because they have not embodied any of the audiovisual content of the motion picture. It's software that operates to bring about a certain result. But it doesn't violate the derivative work right as it exists today. And as I said, my big fear about legislation is unintended consequences. I have no problem with this particular scenario. I do have problems with a lot of the scenarios that Mr. Berman suggested. And I do very strongly believe in the integrity of the final product that is the result of the creators being totally distorted. And I'm worried as aworking in a library, about what is history. So I have real reluctance to go jumping in with legislation now.
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Now, maybe you can craft a bill that is narrow enough. I do think that technology is going to cause huge issues for the future, and I think one of them is going to be on whether or not you need fixation in order to have a violation of the derivative work right. And I would like the Copyright Office to look into that.
Mr. KELLER. Okay. Thank you.
Mr. Chairman, I yield back.
Mr. SMITH. Thank you, Mr. Keller.
The gentlewoman from California, Ms. Waters, is recognized for questions.
Ms. WATERS. Thank you very much, Mr. Chairman.
I'd like to thank our panelists for being here today, and I would like to just reiterate probably what has been said over and over again, that we're all very much concerned about our children and what they have access to and the impact that movies have on our children. And no matter what our approaches are, we all share that same very basic concern.
Mr. Chairman and Members, I'm very concerned at this point about whether or not the hearings that we're holding are timely or whether or not this hearing or the possibility of legislation like this bill can be used as a club to influence settlement negotiations between the movie studios and ClearPlay in the Federal court litigation pending.
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Mr. Valenti, you referred to this, you alluded to this, I think, in your statement. Could you expand on this a bit and help me to understand whether or not what we're doing at this particular time makes good sense in light of what is going on right now with the litigation?
Mr. VALENTI. Congresswoman Waters, the negotiations have been going on for some time. It's very difficult to negotiate when one side believes, as I said in my testimony, that legislation is going to favor them and if they just hold on and not make any final negotiations, they will get everything they want because of legislation.
Keep in mind also the Directors Guild has made two proposals, I have been told, to ClearPlay. At this point, ClearPlay has not made any proposals. As a matter of fact, I have been toldand, again, I can't certify thisthat they have stiffened their position.
I believe that the Directors Guild have said that they would have licensethey would agree to licensing agreements by the copyright owners if they took the airline version of a film, which has been edited by the director or with his consultation so that he approves of what has been done to that movie so it doesn't destroy the dramatic narrative. That's what this is about. This can be done.
Our companies, the seven member companies, are not against the proposition of licensing to ClearPlay. It's doing it on a basis that both sides will agree to. I believe if ClearPlay understood that this legislation was going to wait for another year, or whatever, I think there would be an end to this negotiation, and an end that both sides would accept. I truly believe that.
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Ms. WATERS. Thank you, Mr. Valenti, for expanding on that discussion that you initiated in your testimony. And I'd like to direct my remarks now to my colleagues and to our Chairman.
I have come to understand, despite the fact that I'm viewed as a liberal or a progressive, that Government can't solve everything and there are times when Government should just hold and allow those who are involved in negotiations, certainly in litigation, to see what they can get done. I would hope that I am notno one is attempting to use me or this Committee or this Congress to threaten or intimidate or to be leveraged in an effort to have their way. And I would hope that we would be wise enough to allow the negotiations to continue and to say to both parties, you better go solve it, that it is not in the best interest of any of us for the Congress to jump in and try to determine the outcome.
There are a lot of issues at stake here, certainly issues about freedom of speech, issues about how we basically decide what is the proper direction in protecting our children, and whether or not in this atmosphere and environment that we're in now, where all kind of rights are being threatened, whether or not we take advantage of this atmosphere at election time and all of that to look as if we are better than others because we care more about the children than others. I think it's time for us all to cool out and let the negotiations go forward.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Ms. Waters.
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The gentleman from Virginia, Mr. Forbes, is recognized for questions.
Mr. FORBES. Thank you, Mr. Chairman, and let me just echo my appreciation to all the members of the panel and the Members of this Committee for both their questions and comments, and then to tell you a ''but,'' and the ''but'' is I think most of it is irrelevant, and let me just tell you why. I've never seen a subject that probably has more red herrings than this one does in my life, and let me just lay them out because, like Mr. Keller, I am legitimately trying to get to the fundamental issues that we have here.
On the one side, there are those who will say the legislation might put pressure on one side to settle or to do something they otherwise would not do. Yet we also have one side saying that the cost ligation and the delay in the litigation may force one company out of business and put pressure on them to settle.
I hear today testimony that this is not a net loss of revenue; it's about creative integrity. I don't think there's anybody in here that believes this issue is about ''Schindler's List.'' You know, even in protecting children, that's important and I agree with the testimony that's there. But I think at the core of this legislation are certain fundamental rights in our copyright law. One of them we always support is financial protection for the creators of works. We want to do that, but that's not the issue here. And I think the core issue here is more what my rights are as a consumer once I have purchased a product.
You know, let's go back to a book, because I am legitimately trying to find this out. If I purchase a book, there is no one in here, no author in here that's going to come in and tell me that I don't have the right to go through that book and block out phrases that I don't want to see.
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Now, most of us in here, you're like me, whether it's now I'm in Congress or before when I was practicing law, I'm going to have staff that go through andthat I hire to go through and block out those phrases if I don't want to read them or I don't want to see them. Technology has moved us another step. Most of the time now, instead of holding a book in my hand, I have a computer disk that I put into the computer, and I may block out phrases.
But let me flip it around the other way. Suppose instead of blocking out phrases, my question is that I only want to read certain things. Let me give you an example. I just got back from Normandy and read a number of books on Normandy. And I might want to only read about the 29th Division at Normandy. Nobody in here tells me that if I want to read Steven Ambrose's book about D-Day that I've got to read the whole book. I can just say to my staff member or anybody else, ''I only want to read the sections about the 29th Division.'' Give me 20 books, have a computer program that picks out for me everything about the 29th Division. That's all I want to see. I don't careyou know, the author may tell me, ''You've got to read the whole thing, the whole book to get the whole flavor of what I wanted to communicate.'' But I think my right as a consumer is that I don't have to do that. I can just say, ''No, I want to read about the 29th Division.''
And so I guess my wrestling with this is it looks like to me that's the core of this issue. It is whether or not as a consumer in my home I can buy a product that doesn't, as Mr. Keller says, transform or change the original creative right, but does the author of that work have the creative integrity, ability, right to mandate that I've got to read everything in there? It may not be that I have objections to it because of religious reasons or anything else. I might just not have the time. But I ought to have the abilityor the interest. But I ought to have the ability, it would seem to me, to be able to say I don't want to see this and I want to see something else.
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And so my question to the panel is: Why shouldn't I have that fundamental core right as a consumer to either say give me all of the 29th Division clips from a movie that I want to find or, reverse, take out all the sexual items in that movie? Why don't I as a consumer have that right? And that's what this legislation to me is all about. That's the fundamental
Mr. BERMAN. Would the gentleman yield for a question?
Mr. FORBES. Sure.
Mr. BERMAN. I think you're absolutely right. But should a company be able to market without the consent of Steven Ambrose or the authors of those other 29 books a technology that sells excerpts of great books on the 29th Division?
Mr. FORBES. Well, and I'm glad you said that. The answer would be, no, they couldn't market a book that has the excerpts because you would be changing and creating a new product. But I believe very much, just as I could hire my staffand, Mr. Chairman, my time is out.
Mr. SMITH. Without objection, the gentleman is recognized for an additional minute.
Mr. FORBES. But just as I could hire my staff to come in and say, ''I want you to find everything on the 29th Division,'' I believe they could give me a computer program or technology that I could plug in that wouldn't change the original works of art, but it would find for me clips about the 29th Division or, the reverse, take out things that I didn't want to see. It's not changing, and that's the real essence of this legislation. We're not talking about changing that work and putting a different work. We're talking about a technology that has outstripped where we were before, that basically says this is a way that I can find the scenes or the phrases that I want, or I can not have to read the other ones that I don't want to read. I don't see the difference between the two and
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Mr. BERMAN. Well, would the gentleman yield for one more question?
Mr. FORBES. If the Chairman will give me the time, I'll yield.
Mr. SMITH. You've still got the time, Mr. Forbes.
Mr. BERMAN. It is a way to read portions of 29 books without buying them when you get that computer program.
Mr. FORBES. Well, you're talking about two different things. If you're talking about stealing copyrighted material, that's a whole different issue. What I'm talking about here is when I have legitimately purchased the material and I walk inand that's what we're talking about. We're not talking about anybody who's stealing one of these movies. They think they should be prosecuted. We're talking about an individual who legitimately purchases the movie and walks in but doesn't way to see everything in it or perhaps wants to find certainsupposesuppose I'm a critic, suppose I just want to see certain scenes and see how they were. Why shouldn't I be able to buy technology that's going to just give me those things?
Mr. BERMAN. Would the gentleman yield?
Mr. SMITH. The gentleman's time has expired.
Page 73 PREV PAGE TOP OF DOC Mr. FORBES. Thank you.
Mr. SMITH. The gentleman, the other gentleman from Virginia, Mr. Goodlatte, is recognizes for his questions.
Mr. GOODLATTE. Well, thank you, Mr. Chairman. I have a statement I'd ask be made a part of the record, and I want to thank you first for holding this hearing and for your leadership in attempting to resolve this issue, because I think it is an issue well worth resolving, both for the motion picture industry and for consumers.
I also want to thank you for assembling an incredibly impressive panel. Marybeth Peters is well known to this Committee. Dr. Etzioni has been around almost as long as Jack Valenti. [Laughter.]
I read his sociology books when I was in college 30-plus years ago. And Ms. Nance and her organization are an important group that have worked with the entertainment industry on a number of occasions to promote kid-friendly entertainment, and I think that's a valuable asset, both for, again, families and the entertainment industry.
And, finally, Jack Valenti. I have on a number of occasions enjoyed at Disney-MGM Studio in Florida the Great Movie Ride or Great American Movie Ride. No oneno onehas had a greater movie ride than Jack Valenti. And I thank you for what you've done for decades to promote a great industry, and the corollary to that has been your championing of intellectual property rights. And the work not only in this country but around the world to protect them has been very important, not just for the movie industry but for establishing the principle that intangible property is every bit as important as tangible personal property when we protect those rights. So I certainly understand your perspective.
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I also, though, very much understand that parent, because I have been in that situation with a child who knows about that latest, absolutely most popular movie that's out there and just demands day after day to see it, and you say, Well, you know, I know there's some stuff in there that I'd really not like to have my 7-year-old, my 10-year-old, or even my 12-year-old see that movie. But if I had the technology to be able to say you can see all of it except for these parts, even if it is not the perfect workand I agree with you, it's not the perfect work when you take those outthat's a concern.
I also have a concern, on the other hand, dealing with what impact this on the Digital Millennium Copyright Act and the use of encryption that the industry has used to protect these materials. I was very involved in writing that Act. I know that one of the underpinnings of that Act is the prohibition against circumvention of copy protection technologies. Some have argued that these anti-circumvention measures should be weakened, but I believe that these measures are crucial tools to help content owners protect their intellectual property from piracy and unauthorized copies.
So as we work our way through this, I'd like to know, because I'm concerned that if movie editing technologies are using copydevices to crack copy protection codes to break into a DVD, even to edit out certain offensive materials, that creates some concerns on my part and a slippery slope. While this legislation does not expressly allow the use of anti-circumvention technologies, it also does not expressly prohibit it. And I'd like to know both what the implications of that are and from each of you whether that would improve the legislation if there was a provision in there that would expressly prohibit editing tools that circumvent copy protection technologies.
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We will start with Mr. Valenti.
Mr. VALENTI. Copy protection technology, Mr. Goodlatte, is at the forefront of how we enter the Digital Age. If we are not able to protect our movies in the Digital Age, we don't own anything. And, therefore, it is literally in the vanguardand you, I must thank you, because you have been a champion of protection. Any piece of legislation that allows someone else to circumvent the encryption violates the DMCA. And I think that would be a terrible remedy to offer in any bill.
Now, do I think this bill ought to have a specific bar against decryption, circumvent encryption? I sure do, but that doesn't mean that I support the bill.
I think the essence hereand if I may spring from the rostrum of your question
Mr. GOODLATTE. As long as you allow me time to let the other three answer the question.
Mr. VALENTI. Because the short answer is absolutely, we cannot allow anyone to circumvent encryption. That is going to be our technological salvation in the years to come, and without it, the whole world is going to be swarming all over our material.
But to leap from that rostrum to Congressman Forbesand I understand where you're coming from. I understand where Congressman Goodlatte is. I am a father of three children, and I was very stern, my wife and I, when our kids were growing up. Even though I invented the rating system, I also observed it. And there were certain movies I wouldn't allow my children to see. I don't believe children ought to be able to see every movie they want to see. I think every now and then, to coin a phrase, ''Just say no,'' which is what a lot of parents do. If parents have a casual regard for what their children see, then there's no way you're going to salvage that child's future conduct.
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So I share everything you say, Congressman Forbes. I am with you on that.
Mr. SMITH. The gentleman from Virginia is recognized for an additional minute so the witnesses can respond.
Mr. GOODLATTE. Thank you, Mr. Valenti.
Ms. NANCE. Well, I don't know that I have a comment necessarily on encryption, but, you know, I just want toI just want to sort of point out here, this is the DVD that I bought. It's mine. I plugged it in, I used it. It didn't change it. It's exactly the same as I bought it. Even if I wanted to change it, it's mine once I own it. I shouldn't be stealing it. It belongs to me.
A couple of other things is there has to be a market for something for you to sell it. And while there's a huge market out there for parents to protect their kids from violence, graphic sex, nudity, profanity, there probably isn't much of a market to do all these other things that you're concerned about. And I understand, I can appreciate where you're coming
Mr. GOODLATTE. Let me take back my time because I appreciate that, but indeed there is a huge market to do all these other things were concerned about. It's called KaZaA, Napster
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Ms. NANCE. Those are stealing, though.
Mr. GOODLATTE. Right. And we want to make absolutely sure that we don't do anything that would put us
Ms. NANCE. I agree.
Mr. GOODLATTE.on a slope toward telling the intellectual property community as a whole, including the motion picture industry, that we're going to have a situation where they begun the process of eroding their ability to protect their intellectual property
Ms. NANCE. I completely agree with you. I've fought these peer-to-peer sites tooth and nail over pornography.
Mr. GOODLATTE. Ms. Peters?
Ms. PETERS. I'm an extremely strong supporter of technologies that are used by copyright owners to protect their works. As I understand the technology here, it does not implicate the anti-circumvention provisions.
Mr. GOODLATTE. That is good. So, in other words, if we were to put a provision in here to say that other people attempting to do other things could not invade the language of the DMCA, you would, A, agree with that and, B, feel that it would not be harming companies like ClearPlay to kind of do what they're doing.
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Ms. PETERS. That's right.(see footnote 8)
Mr. GOODLATTE. Dr. Etzioni?
Mr. ETZIONI. Thanks for not giving a number to my age. [Laughter.]
I see no reason these two concerns cannot be reconciled by allowing invasion for this purpose and not for sale or any other purpose, not setting a precedent for other violations.
Let me just add one sentence. Several times we heard about the right of the creator of those works as if one right is an absolute and trumps all other rights. Ninety-five percent of what we do in ethics and much of what we do in law is try to deal with conflicting rights. In this case, it's the right of parents to bring up decent citizens against the right of a creator of a work to insist that children will see all of it and not part of it.
Mr. GOODLATTE. Thank you for your forbearance, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Goodlatte.
Let me say to the panelists that several Members have questions they would like to submit to you in writing. Particularly Mr. Berman I know has some questions. And if you all can respond to those within 2 weeks, we'd appreciate it.
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Further, the gentleman from California is recognized for a minute for some observations.
Mr. BERMAN. I simply didn't want to be the only person on this Subcommittee not to comment on Mr. Valenti's, Jack's appearance here. I myself, given the time between I first heard of his interest in moving on from MPAA to now, I've assumed that this will not be the last time you would be appearing before ourif the past is prologue, we will see you again. But I hope particularly that you will understand and know the admiration and warmth I feel for you and what you've contributed to the industry, to the protection of intellectual property, and to my own personal abilities as a legislator here, as well as to the country from your service.
Mr. VALENTI. Thank you.
Mr. SMITH. Thank you, Mr. Berman, and I thank all the Members for their attendance, and I thank the witnesses for their very, very informative and good testimony today. And we stand adjourned.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Page 80 PREV PAGE TOP OF DOCLETTER FROM THE HONORABLE MARYBETH PETERS
RESPONSES OF MARYBETH PETERS TO POST-HEARING QUESTIONS FROM REP. HOWARD BERMAN
1. You state that you would prefer not to address the merits of the litigation in Colorado, and have no desire to be drawn into it. Further, you admit to a sketchy understanding of the workings of the products that are the subject of the litigation. Unfortunately, some litigant is almost sure to argue to the court that your testimony represents a definitive opinion on the appropriate outcome of the Colorado litigation. Do you think you know enough about the facts of the case, the ClearPlay technology, and the other technologies involved to definitively state whether the Colorado court should find them infringing or non-infringing?
Answer: I do not pretend to know everything there is to know about the ClearPlay technology, or even to know what is in the record of the Colorado litigation; therefore, I have no views on how the court should rule on the facts of that particular lawsuit. In my testimony, I stated that the conduct that is described in the proposed Family Movie Act is not infringing under current law. If ClearPlay's technology does something other than that which is described in the legislation, then the court might well conclude that it is an infringer.
2. In your written testimony, you describe as ''fairly benign'' the filtering technology we have been discussing, and state your ''conclusion that on balance, the conduct that is addressed by the Family Movie Act should not be prohibited.'' However, the filtering technology covered by the bill may skip everything but the violence in Gangs of New York, or may cut all references to the Holocaust from a World War II documentary. Do you believe such filtering technology is ''fairly benign'' when put to these uses? If not, why do you believe that, on balance, such filtering technology should be legal?
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Answer: When I characterized the technology involved in one the this legislation as ''fairly benign,'' I probably should have referred to the particular application of that technology that the legislation is intended to address, rather than to the technology itself. I do not believe that all of the uses permitted by the bill would be benign, and I certainly do not believe that the conduct you have described is benign. Certainly a technology that permits deletion of portions of a motion picture could be used in ways that no reasonable person could condone. That is one of the reasons why I oppose the legislation. However, I am not persuaded that use of such technology in such a fashion is unlawful under current law, and I would hesitate to say that it should be unlawful, since I do not believe the law should ordinarily discriminate among applications of technology based on the message that the person using the technology wishes to convey.
3. You say one reason you are comfortable with the conclusion that movie filtering technology should be legal is because ''it is difficult to imagine any economic harm to the copyright owner.'' I don't have the same difficulty. If there is a market for movie filters, that means consumers are willing to pay something above and beyond the cost of a DVD for a sanitized version of the movie. Isn't the copyright holder, who has the exclusive right to reproduce and distribute sanitized versions, suffering economic harm when a filtering company captures that additional revenue?
Answer: Not unless that revenue is revenue that the copyright holder would have a reasonable expectation of capturing, and it does not appear that the motion picture studios currently have any intention to exploit the market for ''sanitized'' versions of their motion pictures. If motion picture studios do begin to offer such versions, then the case could well be made that the offering of filtering products is causing economic harm to the copyright owners. That is one of the reasons why I believe that if the Family Movie Act is enacted, it should include a sunset provision so that Congress can reevaluate the need for the legislation in a few years. One of the factors that Congress should evaluate at the time would be whether motion picture studios have begun to offer or license such versions of their motion pictures. Also, keep in mind that my interpretation of both current law and the bill preserves the copyright owner's exclusive rights over fixed copies of altered works, and the distribution of such copies may be a more convenient and successful business model for the consumer to obtain and enjoy such versions than the marketing of filtering software.
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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
I must express my opposition to the legislation before us today. Perhaps this hearing will convert me, but I doubt it. I have too many concerns about the nature and implications of this bill. Clever redrafting might address some of these concerns, but nothing can address my concerns about its basic premise.
While I believe parents should be able to protect their children from exposure to media they find offensive, I don't believe the legislation before us today will advance this goal. In some ways, it may have the opposite effect.
This legislation sends the wrong message to parents; namely, that technology can fulfill parental responsibilities. In our modern world, parents cannot control what their kids see and hear every minute of the day. Parents must, as Professor Heins testified on May 20, equip their children for exposure to offensive media, not just turn on the TV or movie filter and leave the room. Technology should not become an excuse for avoiding the hard work of parenting.
To be clear, I don't oppose the ClearPlay technology itself. Rather, I am opposed to legislation that benefits one particular business over its competitors, and abrogates the rights of copyright owners and trademark holders in the process. The marketplace is the proper forum for resolving this business dispute, not Congress. Congress should focus on encouraging the relevant copyright owners and trademark holders to work out a licensing deal for ClearPlay technology, not roil the waters with legislation that verges on a bill of attainder.
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Unfortunately, the legislative activity on this issue appears to have already hampered the industry negotiations. I understand that, following the May 20 hearing, ClearPlay presented new demands that represented a significant departure from its previous position in the negotiations. In other words, the positions of the parties, which had been fairly close before the May 20 hearing, are getting farther apart as the prospects for legislation improve.
Since neither ClearPlay nor any of its competitors has been found liable for copyright or trademark infringement, this legislation addresses a hypothetical problem. While a federal District Court has before it a case raising these issues, it has not yet issued even a preliminary ruling. Furthermore, the Register of Copyright will apparently testify that ClearPlay is likely to succeed. In other words, there is no problem for Congress to correct. While legislation addressing hypothetical problemslike the law protecting fast food restaurants against obesity liabilityis all the rage these days, it is not a trend with which I agree.
Most importantly, Congress should not give companies the right to alter, distort, and mutilate creative works, or to sell otherwise-infringing products that do functionally the same thing. Such legislation is an affront to the artistic freedom of creators, and violates fundamental copyright and trademark principles.
The sanitization of movies allowed by this legislation may result in the cutting of critically important scenes. For instance, the legislation legalizes the decision of a ClearPlay competitor to edit the nude scenes from Schindler's Listscenes critical to conveying the debasement and dehumanization suffered by concentration camp prisoners.
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Further, a close reading of the bill reveals that it will also legalize editing that makes movies more offensive, more violent, and more sexual. Just as the legislation allows nudity to be edited out, it allows everything but nudity to be edited out. For instance, the legislation allows some enterprising pornographer to offer a filter that edits the movie Caligula down to its few, highly pornographic scenes, and endlessly loops these scenes in slow-motion. The legislation would also appear to legalize filters that make imperceptible the clothes of all actors in a movie. Do the bill sponsors really want to legalize all-nude versions of Oklahoma and Superman?
The types of edits legalized by this bill are limited only by editorial imagination. Anti-tobacco groups could offer a filter that strips all movies of scenes depicting tobacco use. Racists might strip Jungle Fever of scenes showing interracial romance between Wesley Snipes and Annabella Sciorra [SKEE-ORA], perhaps leaving only those scenes depicting interracial conflict. Holocaust revisionists could strip World War II documentaries of concentration camp footage. Fahrenheit 911 could be filtered free of scenes linking the Houses of Bush and Fahd.
Since the bill also applies to television programming, a number of troubling consequences may result. Digital Video Recorder services like TiVo, which enable their subscribers to digitally record TV shows for time-shifting purposes, might offer filters geared to those programs. This is not far-fetched: at least one DVR service has already tried to filter out all commercials. In the future, they might offer filters that cleanse news stories of offensive content; for instance, by editing out comments critical of a beloved politician. In fact, under the bill the DVR service could unilaterally engage these filters without the permission of the TV viewer, and thus might choose to filter out stories helpful to a corporate competitor or critical of a corporate parent.
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I know that these outcomes are opposite to the intent of the bill's sponsors, but they are the unavoidable outcomes nonetheless. And these are just a few of the problems that are apparent after just two days' reflection. Thus, I hope the Subcommittee will not rush to legislate in this area, and instead will allow the marketplace to address the legitimate concerns of parents.
I yield back the balance of my time.
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
At the outset, I am embarrassed we are even considering this bill. The Republicans know full well that the directors and ClearPlay are engaged in settlement negotiations to resolve a lawsuit over copyrights; they are using this bill and this second hearing to pressure the directors and help the other side.
In my tenure in Congress, this is only the second time I can remember having a one-sided hearing involving on-going settlement talks; not surprisingly, the first was a few weeks ago on the same issue. Our hearings should be reserved for public policy debates, not for strong-arming private litigants.
It is more troubling considering that we are here to continue the Republican assault on the First Amendment and media content. In the past few months, we've seen Republican overreaction to a televised Superbowl stunt and to radio broadcasts. Now the self-proclaimed moral majority is turning to movies.
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Censoring filmmakers would diminish the nature of this medium. Let us not forget that Schindler's List was on broadcast television completely uncut. The movie studio and the broadcasters knew the film could not convey its feeling and authenticity if it was edited. Despite this, the movie has been edited by censors to diminish the atrocities of the Nazi party. Traffic, an acclaimed anti-drug movie, has been edited in a way that makes drug use appear glamorous.
This is not to say that movie fans should be forced to watch the latest Quentin Tarantino movie. People looking for family-friendly fare have countless choices. Parents are inundated with commercials for the latest children's movies. Hollywood has its own ratings system that tells parents which movies are suitable for children and, over the past several years, has increased its output of G- and PG-rated films. Newspaper reviewers make specific mention of family-friendly films. Finally, organizations like Focus on the Family provide information on movies for parents who seek it. In short, there are options.
At the hearing on this bill, we heard our colleagues Rep. Randy Forbes (R-VA) and Rep. John Carter (R-TX) say the government has no business in this issue. The last time I checked, Congress was a part of the government. Having said that, there is a simple solution to this problem. It is a market-based solution that conservatives should like. If a family finds a particular DVD offensive, it should not buy it.
(Footnote 1 return)
David Pogue, ''STATE OF THE ART; Add 'Cut' and 'Bleep' To a DVD's Options,'' New York Times, May 27, 2004, page G1.
(Footnote 2 return)
Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. XX, 123 S.Ct. 2041 (2003). While the Dastar decision is not the subject of this hearing, I believe that the subcommittee should examine whether section 43(a) of the Lanham Act should be amended to reflect what was the longstanding understanding prior to Dastarthat section 43(a) is an important means for protecting the moral rights of attribution and integrity. Although I will comment no further on Dastar at this hearing, and although I will not comment on the portion of the proposed legislation that would provide an exemption from liability under the Lanham Act, it is worth noting that in the wake of Dastar (and, for that matter, even under pre-Dastar law), there may be little reason to be concerned that the conduct proposed to be covered by the proposed Family Movie Act would violate the Lanham Act in any event.
(Footnote 3 return)
Berne Convention for the Protection of Literary and Artistic Works, Art. 6bis.
(Footnote 4 return)
Sam Ricketson, The Berne Convention: 18861986 456 (1987).
(Footnote 5 return)
This brief legal analysis is based on my admittedly sketchy understanding of how the products that are the subject of the proposed legislation work. If, for example, these products actually caused copies to be made of any or all of a motion picture, my analysis might well be different.
(Footnote 6 return)
Of course, it is possible to use the filtering products to alter a performance of the motion picture in a public setting, resulting in an infringing public performance. But as I understand it, that is not the typical use, nor are the products that are the subject of this legislation marketed for such use. Moreover, if there were a public performance, it would be an act of infringement not because the performance was altered, but simply because the motion picture was performed in public without the authorization of the copyright owner.
(Footnote 7 return)
See letter dated July 6, 2004, in the Appendix, p. 89, from the Honorable Marybeth Peters, for clarification of answer to question posed by Subcommittee Member.
(Footnote 8 return)
See letter dated July 6, 2004, in the Appendix, p. 89, from the Honorable Marybeth Peters, for clarification of answer to question posed by Subcommittee Member.