[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
DERIVATIVE RIGHTS, MORAL RIGHTS, AND
MOVIE FILTERING TECHNOLOGY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MAY 20, 2004
__________
Serial No. 93
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
SPENCER BACHUS, Alabama MAXINE WATERS, California
MARK GREEN, Wisconsin MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
MELISSA A. HART, Pennsylvania ROBERT WEXLER, Florida
MIKE PENCE, Indiana TAMMY BALDWIN, Wisconsin
J. RANDY FORBES, Virginia ANTHONY D. WEINER, New York
JOHN R. CARTER, Texas
Blaine Merritt, Chief Counsel
David Whitney, Counsel
Joe Keeley, Counsel
Alec French, Minority Counsel
C O N T E N T S
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MAY 20, 2004
OPENING STATEMENT
Page
The Honorable Lamar Smith, a Representative in Congress From the
State of Texas, and Chairman, Subcommittee on Courts, the
Internet, and Intellectual Property............................ 1
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................ 2
The Honorable Ric Keller, a Representative in Congress From the
State of Florida............................................... 4
The Honorable John Conyers, Jr., a Representative in Congress
From the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
The Honorable J. Randy Forbes, a Representative in Congress From
the State of Virginia.......................................... 6
The Honorable Zoe Lofgren, a Representative in Congress From the
State of California............................................ 7
WITNESSES
Ms. Joanne Cantor, Professor Emerita, University of Wisconsin-
Madison
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Mr. Jeff J. McIntyre, Senior Legislative and Federal Affairs
Officer, American Psychological Association
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Mr. Bill Aho, Chief Executive Officer, ClearPlay, Inc.
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Ms. Marjorie Heins, Fellow, Brennan Center for Justice, New York
University School of Law, and Founding Director, Free
Expression Policy Project
Oral Testimony................................................. 26
Prepared Statement............................................. 28
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of Taylor Hackford, on behalf of the Directors
Guild of America............................................... 86
Prepared Statement of the American Medical Association........... 91
Prepared Statement of Rick Bray, CEO, Principle Solutions, Inc. &
TVG Vision, LLC................................................ 93
APPENDIX
Material Submitted for the Hearing Record
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.......................................... 97
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress From the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 98
Response to question submitted by Representative Howard L. Berman
to Marjorie Heins, Fellow, Brennan Center for Justice, New York
University School of Law, and Founding Director, Free
Expression Policy Project...................................... 99
Book Review submitted by Joanne Cantor, Professor Emerita,
University of Wisconsin-Madison................................ 101
Remarks submitted by Joanne Cantor, Professor Emerita, University
of Wisconsin-Madison........................................... 102
DERIVATIVE RIGHTS, MORAL RIGHTS, AND MOVIE FILTERING TECHNOLOGY
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THURSDAY, MAY 20, 2004
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, Hon. Lamar S. Smith
(Chair of the Subcommittee) presiding.
Mr. Smith. The Subcommittee on Courts, the Internet, and
Intellectual Property will come to order. We have a very
interesting hearing today which we all look forward to, and
when I say ``we,'' let me explain that the reason for the
dearth of Members, at least Members to my right, is that the
Republican Conference is listening to President Bush. In fact,
I had to leave early in order to not be any more late than I am
now to this particular hearing, but I am sure we will be joined
by some of our colleagues shortly. I am sure the President will
give equal time to my colleagues on my left in the near future,
as well, so we will see.
I am going to recognize myself for an opening statement,
then the Ranking Minority Member, and then we'll look forward
to hearing what our witnesses have to say.
Today, we will hear testimony on an issue that is of vital
importance to families across America. How do we help provide a
safe and nurturing home environment for our children?
A generation ago, there was not near the amount of sex,
violence, and profanity on television and in movies than there
is today, but I still remember how my own parents dealt with
it. We had a small box, it was actually not a box, it was a
round device that had a switch on it that they manually clicked
whenever there was something objectionable that I might have
heard on the television and this muted out the sound. There are
other times when they would get up and turn off the TV for a
minute or two. They felt then, as most Americans do today, that
it is the right of parents to protect their children from
offensive audio or video in their own homes.
Just as the author of a book should not be able to force me
to read that book in any particular manner or order, a studio
or director should not be able to use the law to force me or my
children to watch a movie in a particular way. It is
unrealistic and impractical to expect parents to monitor their
children's video habits 24 hours a day. They need our help and
support.
Some have argued that this hearing should not be held due
to ongoing litigation between a number of parties. That is like
saying a hearing should not be held on copyright piracy because
copyright laws are challenged in the courts all the time, and
unsuccessfully, I might add. This hearing instead is about the
technology that allows parents to shield their children from
violence, sex, and profanity, not a court case, and, of course,
it is not about a lawsuit.
We will hear from two witnesses about the scientific
research that exists to demonstrate the impact of media
violence on children. Such research is a scientific validation
of basic common sense. Violence, sex, and profanity repeatedly
seen and heard in movies are not good for our children and can,
in fact, affect their behavior.
Our third witness is the CEO of ClearPlay. I am not here to
endorse ClearPlay, the company, but I will endorse the common
sense approach that ClearPlay, the technology, uses to enable
parents to protect their children from that violence, sex, and
profanity. ClearPlay, the technology, does not create
derivative works, does not add new material to a movie, and
makes no permanent alterations to a legally purchased or rented
DVD. This technology does not violate the copyright and
trademark laws of our nation, nor does the technology violate
the DMCA. In fact, ClearPlay, the technology, will only work
with legal DVDs. It will not work with a copied DVD.
The technology available today is the electronic equivalent
of what parents did a generation ago to protect their children
by muting the sound or fast-forwarding over objectionable
material. The issue isn't whether a movie loses some of its
authenticity due to skipping of various audio and video but
whether parents have a right to shield their children from
offensive content. I believe that the right of parents to
protect their children is essential, and if they choose to
designate a third party to help them accomplish this, more
power to them.
Since there is an outstanding lawsuit involving several of
the companies that create such family-friendly technology, I am
going to avoid talking about the lawsuit today. Negotiations
among some of the parties have been ongoing for 8 months and I
hope that the participants will resolve their issues very soon.
If not, the Chairman of the full Judiciary Committee and I are
prepared to introduce legislation or use other legislative
vehicles 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 very much, Mr. Chairman. This hearing
certainly delves into a number of interesting issues about
artistic freedom, the definition of copyright infringing
derivative works, and the extent to which the unfair
competitions of the Lanham Act protect the moral rights of
creators.
However, I am not sure any of these issues are ripe for a
Congressional hearing. The movie studios, directors, and
ClearPlay are actively engaged in licensing negotiations to
resolve their dispute. As I understand it, those negotiations
had been close to a mutually acceptable conclusion. The public
posturing and adversarial nature inherent in Congressional
hearings is bound to set back these negotiations and thus
thwart the stated purpose of the hearing.
Furthermore, the problem on which this hearing focuses is
hypothetical, at best. A district court case addressing these
very issues has not yet proceeded past the most preliminary
stages. It seems a waste of time to discuss statutory
amendments before any court has interpreted the law in an
allegedly undesirable way.
But despite my misgivings, we're here, so I might as well
use my time to clearly state my opposition to the hypothetical
legislation that may be forthcoming to address the hypothetical
problem before us. I don't believe Congress should give
companies the right to alter, distort, and mutilate creative
works or to sell otherwise infringing products that do
functionally the same thing.
I believe such legislation will be an affront to the
artistic freedom of creators. It would violate fundamental
principles of copyright and trademark law, and if drafted to
avoid violating the first amendment, it would almost surely
defeat the apparent purposes of its drafters.
Such legislation presents an almost endless variety of
complications and conundrums. Would legislation attempt to
define the types of offensive content that could be altered or
deleted? If such definitions include violence, sexual material,
and profanity, the legislation will almost certainly violate
the first amendment, and first amendment concerns aside,
putting them aside, attempts to define offensive conduct will
backfire. Legislation that allows the deletion of violent
scenes from ``The Last Samurai'' would also allow ``The Passion
of the Christ'' to be stripped of its graphic violence. Do
those who find the violence in ``The Passion'' so integral to
the story think a sanitized version would do the story justice?
Of course, first amendment concerns could be skirted by
granting a content-neutral right to edit content, but that will
just create further problems. For every case in which ClearPlay
sanitizes the kitty litter humor in ``The Cat in the Hat,''
another company will strip ``The Passion'' of offensive
depictions of Jews. Personally, I might not mind the outcome.
Someone else might prefer if scenes depicting interracial
physical content were cut from ``Look Who's Coming to Dinner''
or ``Jungle Fever,'' but I don't think this is what America is
about. Innovation, growth, and progress occur through exposure
to an unbridled marketplace of ideas, not by ensuring that
everything you see, read, and experience fits within your
preconceived world views.
Would legislation distinguish between fictional and non-
fictional works? I don't see how. For instance, is ``The
Passion of the Christ'' fictional or historical? What about
``The Reagans'' mini-series? And who would be the arbiter, the
Anti-Defamation League in the case of ``The Passion,'' the
Reagan family in the case of ``The Reagans''? But if the
legislation does not make a fiction/non-fiction distinction,
it's an invitation to rewrite history. For instance, World War
II documentaries could be stripped of concentration camp
footage. ``Fahrenheit 911'' could be stripped of scenes linking
the houses of Bush and Fahd.
And on what principle basis would such legislation apply
only to motion pictures? If it is really meant to empower
consumers to customize their lawfully purchased copyrighted
works, then it would apply to all copyrighted works. It would
legalize the unauthorized software plug-ins that enable you to
play the ``Tomb Raider'' computer game with a topless Laura
Croft and to put the faces of teachers and classmates on the
heads of target monsters in certain shooter computer games.
Would the legislation make it legal for someone with digital
editing software to doctor a 30-year-old photograph of a
Vietnam War rally so that it appears that John Kerry is
standing next to Jane Fonda?
Would the legislation only apply to digital works? If so,
what nonsense. It means that someone could sell an e-book
reader that prevents reading the murder scene in an e-book
version of Dostoevsky's Crime and Punishment but can't sell the
hard-copy book with the offending pages ripped out. Why would
legislation protect technology that skips the violent scenes in
a DVD version of ``Platoon'' but not protect a service that
cuts the same scenes from the VHS version? If both activities
are copyright infringement today, why would legislation only
immunize the digital infringement?
As a parent, I am concerned about what my children see and
hear in our cacophonous media society, but I believe parenting
is the parents' job, not the Government's. I wonder why vocal
proponents of personal responsibility and limited Government
readily abandon those principles when presented with the
opportunity to place the Government in loco parentis. If the
Government should stay out of our gun closets, shouldn't it
stay out of our bedrooms and living rooms?
I yield back, Mr. Chairman, the balance of whatever time I
might have.
Mr. Smith. Thank you, Mr. Berman.
Are there other Members who wish to make opening
statements? The gentleman from Florida, Mr. Keller, is
recognized.
Mr. Keller. Thank you, Mr. Chairman. I just want to briefly
thank the witnesses for being here today.
I would disagree just a bit with the opening statement by
Mr. Berman. I certainly respect what he has to say, but I don't
think it's premature to have this hearing. I represent an area
that family is everything, Orlando, Florida. We market
ourselves to family. We like clean entertainment. We fight
gaming operations because we think that would bring an unsavory
factor. And at the same time, in the interest of full
disclosure, I represent some of the major movie companies who
are not so thrilled about potential legislation here.
In the interest of free speech, I'm looking forward to
hearing both sides of this. While it may be premature in some
people's minds to have legislation on this issue, it's
certainly not premature to have a hearing on it so that we can
get educated on both sides, and that's what you guys are here
to do and tell us your thoughts on these and other issues.
And so I thank you very much for taking time out of your
busy lives to be here and I look forward to listening to your
testimony with great interest and getting educated on the
issue.
Mr. Chairman, I yield back.
Mr. Smith. Thank you, Mr. Keller.
The gentleman from Michigan, Mr. Conyers, the Ranking
Member of the full Committee, is recognized.
Mr. Conyers. Good morning, Chairman. I am so happy to be
here. As you know, I sent a letter to you and the Chairman
yesterday. You are aware of that, aren't you?
Mr. Smith. Yes, Mr. Conyers, I am.
Mr. Conyers. And it says, in part, I am concerned that this
hearing would interfere with ongoing negotiations regarding
Huntsman v. Soderbergh and should be delayed until the
resolution of that case.
As you know, the parties to the lawsuit have been
negotiating in good faith to resolve copyright issues
surrounding the editing of film. Our Committee has a
longstanding precedent of not investigating matters pending in
the courts, and the hearing entitled ``Derivative Rights'' et
cetera would clearly involve the Committee in litigation. Thank
you for your consideration of this request.
Is it too late to ask you to honor the----
Mr. Smith. Mr. Conyers, will you yield?
Mr. Conyers. Of course.
Mr. Smith. It is too late to make the request, but it is
not to late for me to respond to your request, if you'd like
for me to do so.
Mr. Conyers. That's why I sent it.
Mr. Smith. Okay. If the gentleman will yield further, let
me mention a couple of things. First of all, the ongoing
negotiations, as I mentioned in my opening statement, have, in
fact, been ongoing for 8 months, and it's actually my hope that
today's hearing will expedite the solution and resolution of
the problems and I have good reason to believe that that's the
case.
As far as witnesses who are a party to a lawsuit not
testifying, if we made that a hard rule, I'd say we would have
eliminated half of our witnesses over the last several months,
including witnesses from MPAA and the Recording Industry of
America, and I haven't heard any objections to those
individuals testifying.
Lastly, this hearing, as I also mentioned, is really not
about a lawsuit or anything about the negotiations. It's about
technology that I think can be used very valuably by parents,
and I thank the gentleman for yielding.
Mr. Conyers. Thank you, sir, for the response.
Mr. Berman. Mr. Chairman, may I ask unanimous consent to
just have 30 seconds to ask you a question? Ten seconds to ask
you a question?
Mr. Smith. The gentleman is recognized for an additional 30
seconds out of order.
Mr. Berman. If the Chairman chooses, because negotiations
haven't gone anywhere, because the issue isn't resolved in any
other fashion, if he chooses to introduce legislation, will we
have an opportunity to have a hearing on that legislation?
Mr. Smith. If the gentleman will yield, I would expect us
to have a hearing on that legislation and have no reason to
expect that it wouldn't be the case. Thank you. Good question.
The gentleman from Virginia, does he have an opening
statement?
Mr. Conyers. Just a moment, Mr. Chairman.
Mr. Smith. I'm sorry. Mr. Conyers?
Mr. Conyers. Thank you.
Mr. Smith. I thought you had given back your time. Is it
still your time? The gentleman continues to be recognized.
Mr. Conyers. Thank you so much. You see, there may be only
20 or 30 members of the bar that have engaged in this kind of
litigation that could possibly come to the conclusion that a
Congressional hearing on legislation would facilitate its quick
resolution. What it does is that we are flagrantly entering
into one side of this litigation to the complete detriment of
the other side.
Now, we have courses in law school that will help anybody
that doesn't understand this. As a matter of fact, you don't
even have to go to law school to figure this out. Congressional
pressure would automatically appear by just holding the
hearing. So to think that it would facilitate a legitimate
resolution of the problem is very hard for me to understand.
Now, why isn't Jack Valenti here? Well, good question. I'll
tell you why he isn't here. He isn't allowed to be here, and
that's who should be representing the motion picture studios.
So this is a wonderful way to start a Thursday morning, May
20, in which we just hold a hearing about the end of
intellectual property law as we know it, because what we are
saying, and nobody knows this better than Mr. Aho, is that
we're not only not going to protect intellectual property law,
which was the whole idea, we are going to legalize people for
profit intersecting into other people's property.
Well, on what grounds? Is there some higher moral ground or
is there some laws that we don't understand about? Is there
something special about this case that allows it to do what
nothing has ever happened before in the history of intellectual
property law? What? What gives in Utah and with Mr. Aho and
with this company?
By what right are we now going to say, well, look, if you
want to edit a little bit on intellectual property, well, we
just had a hearing in the House of Representatives in the
Judiciary Committee that has jurisdiction. They say it's okay.
I think that somewhere along the line, that there ought to
be a balanced hearing--a balanced hearing. What about the
producers? What about the directors? What about the people
whose property it is? Do they ever get a chance to say
anything? What's happening?
Well, I thank the Chairman for allowing me to vent a little
bit.
Mr. Smith. Thank you, Mr. Conyers.
I will recognize myself for 15 seconds. The gentleman from
Michigan asked a good question, which is where is the MPAA and
what about Jack Valenti? I need to say, and I'm happy to say
for the record, that Mr. Valenti called me. In fact, he called
me from France day before yesterday and expressed a preference
not to be a part of this panel. So that's the quick answer to
your question.
Does the gentleman from Virginia, Mr. Forbes, have an
opening statement?
Mr. Forbes. Mr. Chairman, thank you. I will be very brief.
Mr. Smith. The gentleman is recognized.
Mr. Forbes. Thank you. Mr. Chairman, when I walked in here,
I thought this was a simple little hearing and I guess I have
to rely now on the statement, thou doest protest too much. You
know, when you're talking, I think I look at what Mr. Keller
said, that this is a hearing to put facts on the table and
ideas on the table, and truly I believe that in the marketplace
of ideas, truth will win out, and I, for the life of me,
scratch my head and wonder why certain people are so concerned
that we get certain facts and ideas out on the table that we
can explore.
I don't think there's any legislation that is before us at
this time. But if we have learned anything from this Committee,
it is that technology moves so quick that we have to constantly
be exploring those new ideas and those new concepts so that we
can be up with the technology.
I think, Mr. Chairman, what we're really looking at here,
when I hear individuals saying we want to keep the Government
out of our homes and out of our bedrooms, that's exactly what
we want to talk about, whether or not our copyright laws are
keeping parents in their homes from determining what their
children are going to see and how they are going to see it.
So Mr. Chairman, I commend you for holding this hearing and
I hope that what we're going to be doing today is putting facts
on the table so that we can see how our parents in their homes
can have a better voice and how they determine what their
children are going to see. And so I hope that's what we'll
explore today.
Mr. Smith. Thank you, Mr. Forbes.
Are there any other Members who wish to make opening
statements? The gentlewoman from California, Ms. Lofgren.
Ms. Lofgren. Just briefly. I'm looking forward to the
testimony. I think there's an obvious reason why, in addition
to any other, why this hearing is being held, and that's to
assert our jurisdiction. Certainly the Commerce Committee has
looked at this, but we are the Intellectual Property
Subcommittee and I think it is important that we maintain over
jurisdiction over intellectual property.
Clearly, I realize that ClearPlay is not--the issues
before--at play here are not about encryption and defeat of
technology in the DMCA, but I think some of the issues really
are similar, even though that is not the gist of the legal
dispute. And so I'm looking forward to hearing from the
witnesses and especially the academic witnesses for their
guidance, not just on this issue but the broader issue of
consumer rights to utilize what it is they have bought. Thank
you.
Mr. Smith. Thank you, Ms. Lofgren.
Let me say that we've been joined by a Member of the
Judiciary Committee, Mr. Cannon from Utah. We appreciate his
presence. He has a particular interest in this subject at hand
and we will look forward to his participation later on.
Let me proceed with introducing our witnesses today. Joanne
Cantor is a Professor Emerita, University of Wisconsin at
Madison. Jeff McIntyre is the Senior Legislative and Federal
Affairs Officer of the American Psychological Association. Bill
Aho is Chief Executive Officer, ClearPlay Inc. And Marjorie
Heins is a Fellow, Brennan Center for Justice at New York
University Law School and Founding Director of the Free
Expression Policy Project.
We welcome you all, and Ms. Cantor, we will begin with you.
STATEMENT OF JOANNE CANTOR, PROFESSOR EMERITA, UNIVERSITY OF
WISCONSIN-MADISON
Ms. Cantor. Mr. Chairman and Members of the Subcommittee,
thank you for inviting me to present my views on the media's
impact on children.
Since 1974, I've been a professor at the University of
Wisconsin, focusing the greater part of my research on the
impact of media violence on children's aggressive behavior and
emotional health. My parenting book, Mommy, I'm Scared and my
new children's book, Teddy's TV Troubles present parents--help
parents and children cope with the disturbing images that
television and movies present on a daily basis. Finally, and
not the least important, I am the mother of a teenage son.
I am submitting for the record a paper I wrote on the
psychological effects of media violence on children and
adolescents, which is also available on my website,
tvtroubles.com. Let me summarize the major points here.
We now know a lot about the effects of media violence.
Study after study has shown that children often behave more
violently after watching media violence. The violence they
engage in ranges from trivial aggressive play to injurious
behavior with serious medical consequences. Children also show
higher levels of hostility after viewing violence, and the
effects of this hostility range from being in a nasty mood to
an increased tendency to interpret a neutral comment or action
as an attack.
In addition, children can be desensitized by media
violence, becoming less distressed by real violence and less
likely to sympathize with victims. Finally, media violence
makes children fearful, and these effects range from a general
sense that the world is dangerous to full-blown anxieties,
nightmares, sleep disturbances, and other trauma symptoms.
The evidence about these effects of media violence has
accumulated over the last few decades. Meta analyses, which
statistically combine all the findings in a particular area,
demonstrate that there is a consensus on the negative effects
of media violence. They also show that the effects are strong,
stronger than the well-known relationship between children's
exposure to lead and low IQ scores, for example. These effects
cannot be ignored as inconclusive or inconsequential. Even more
alarming, recent research confirms that these effects are long
lasting.
The long-term effects of media on fears and anxieties are
also striking. Research shows that intensely violent images
often induce anxieties that linger, interfering with both
sleeping and waking activity for years. Many young adults
report that frightening movie images that they saw as children
have remained in their minds in spite of their repeated
attempts to get rid of them. They also report feeling intense
anxieties in non-threatening situations as a result of having
been scared by a movie or television program, even though they
now know that there is nothing to fear.
For example, you might find it logical that many people who
have seen the movie ``Jaws'' as children worry about
encountering a shark whenever they swim in the ocean, but you
would be surprised to learn how many of these people are still
uncomfortable in lakes or pools because of the enduring
emotional memory of the terror they experienced while viewing
this movie as a child.
Findings are beginning to emerge from research teams
mapping the areas of the brain that are influenced by violent
images and these studies may help us understand how media
violence promotes aggression and why it has such enduring
effects on emotional memory. These effects are hard to undo and
media literacy often doesn't work when children have been
frightened by something in the media.
What can Government do for the problem of media violence?
Of course parents are responsible for their children's
upbringing. However today's media environment has made
parenting an overwhelming challenge. Not only are diverse and
potentially unhealthy media available to children both inside
and outside the home around the clock, the media actively
market extremely violent and sexual products to children whose
parents would never dream of bringing them to their children's
attention. Several Federal Trade Commission reports have
documented this.
Parents need all the help they can get to perform their
roles as arbiters of the activities their children engage in,
and yet when help is offered, the media typically resists. The
television industry agreed to implement the V-chip in TV
ratings, but they then designed a device that is difficult to
use and a rating system that has been under-publicized and hard
to understand. In fact, each mass medium--TV, movies, video
games, and music--has its own ratings system and the industries
resist pressure to get together on one system that would be
easy to learn and readily understood.
Other good solutions are attacked head on. Various
municipalities have passed laws restricting the access of
children to mature-rated video games without parental
permission, but these have been attacked ferociously in the
courts and with success. And the makers of ClearPlay, which
permits parents to filter out certain contents in movies
without altering the movie itself or limiting what others may
see, are being sued for copyright infringement.
Small companies and nonprofit groups that are trying to
provide helpful tools for parents live under the constant
threat of lawsuits from powerful companies. A great deal has
changed in the past generation or two. Our children are
spending much more time with the media than we did, and what
they are exposed to is more violent and more graphic than we
ever imagined.
Our children's heavy immersion in today's media culture is
a large-scale societal experiment with potentially horrifying
results. That is one reason why I am devoting so much of my
time to writing books for parents and children and to getting
the message out as best I can, and anything that Congress can
do to help ease the way for those who are trying to help
families raise healthy children, without interfering with the
rights of others to see what they want, will provide a great
benefit to society.
Thank you very much.
Mr. Smith. Thank you, Ms. Cantor.
[The prepared statement of Ms. Cantor follows:]
Prepared Statement of Joanne Cantor
Mr. Chairman and members of the Subcommittee, thank you for
inviting me to present my views on the media's impact on children.
Since 1974, I have been a professor at the University of Wisconsin,
focusing the greater part of my research on the impact of media
violence on children's aggressive behaviors and their emotional health.
My parenting book, ``Mommy I'm Scared'': How TV and Movies Frighten
Children and What We Can Do to Protect Them and my new children's book,
Teddy's TV Troubles, help parents and children cope with the disturbing
images that television and movies confront them with on a daily basis.
Finally, and not the least important, I am the mother of a teenage son.
I am submitting for the record a paper I wrote on ``The
Psychological Effects of Media Violence on Children and Adolescents,''
which is also available on my web site (www.tvtroubles.com). Let me
summarize the major points here: We now know a lot about the effects of
media violence. Study after study has found that children often behave
more violently after watching media violence. The violence they engage
in ranges from trivial aggressive play to injurious behavior with
serious medical consequences. Children also show higher levels of
hostility after viewing violence, and the effects of this hostility
range from being in a nasty mood to an increased tendency to interpret
a neutral comment or action as an attack. In addition, children can be
desensitized by media violence, becoming less distressed by real
violence and less likely to sympathize with victims. Finally, media
violence makes children fearful, and these effects range from a general
sense that the world is dangerous, to full-blown anxieties, nightmares,
sleep disturbances, and other trauma symptoms.
The evidence about these effects of media violence has accumulated
over the last few decades. Meta-analyses, which statistically combine
all the findings in a particular area, demonstrate that there is a
consensus on the negative effects of media violence. They also show
that the effects are strong--stronger than the well-known relationship
between children's exposure to lead and low I.Q. scores, for example.
These effects cannot be ignored as inconclusive or inconsequential.
Even more alarming, recent research confirms that these effects are
long lasting. A study from the University of Michigan shows that TV
viewing between the ages of 6 and 10 predicts antisocial behavior as a
young adult. In this study, both males and females who were heavy TV-
violence viewers as children were significantly more likely to engage
in serious physical aggression and criminal behavior later in life; in
addition, the heavy violence viewers were twice as likely as the others
to engage in spousal abuse when they became adults. This analysis
controlled for other potential contributors to antisocial behavior,
including socioeconomic status and parenting practices.
The long-term effects of media on fears and anxieties are also
striking. Research shows that intensely violent images often induce
anxieties that linger, interfering with both sleeping and waking
activities for years. Many young adults report that frightening movie
images that they saw as children have remained on their minds in spite
of their repeated attempts to get rid of them. They also report feeling
intense anxieties in nonthreatening situations as a result of having
been scared by a movie or television program--even though they now know
that there is nothing to fear. [For example, you might find it logical
that many people who have seen the movie Jaws worry about encountering
a shark whenever they swim in the ocean. But you would be surprised to
learn how many of these people are still uncomfortable swimming in
lakes or pools because of the enduring emotional memory of the terror
they experienced viewing this movie as a child.] Findings are beginning
to emerge from research teams mapping the areas of the brain that are
influenced by violent images, and these studies promise to help us
understand how media violence promotes aggression and to help explain
why it has such enduring effects on emotional memory.
I have limited my comments here to the effects of media violence,
but there are other areas of parental concern (including sex and
profanity) that television and movies present to children, and I will
be happy to comment on these areas as well during the question-and-
answer period.
What can government do about the problem of media violence? Isn't
this all the parents' responsibility? Of course parents are responsible
for their children's upbringing. However, today's media environment has
made parenting an overwhelming challenge. Not only are diverse and
potentially unhealthy media available to children both inside and
outside the home around the clock; the media actively market extremely
violent and sexual products to children whose parents would never dream
of bringing them to their children's attention. Several Congressional
hearings regarding the Federal Trade Commission's studies have made
this woefully apparent.
Parents need all the help they can get to perform their roles as
arbiters of the activities their children engage in. And yet, when help
is offered, the media typically resist and resist forcefully. The
television industry agreed to implement the v-chip and TV ratings, but
they then designed a device that is difficult to use and a rating
system has been under-publicized and hard to understand. In fact, each
mass medium--TV, movies, music, and video games--has its own rating
system, and the industries resist pressure to get together on one
system that would be easy to learn and readily understood.
Other good solutions are attacked head-on. Various municipalities
have passed laws restricting the access of children to mature-rated
video games without parental permission, but these have been attacked
ferociously in the courts, and with success. And the makers of a tool
like ClearPlay, which permits parents to filter out certain contents in
movies, without altering the movie itself or infringing the rights of
others, are being sued for copyright infringement. Small companies and
nonprofit groups that are trying to provide helpful tools for parents
live under the constant risk of lawsuits from powerful corporations.
Let's not lose sight of the stakes here. A great deal has changed
in the past generation or two. Our children are spending much more time
with media than we did, and what they are exposed to is more violent
and more graphic than we ever imagined. Our children's heavy immersion
in today's media culture is a large-scale societal experiment with
potentially horrifying results (and with hardly a child left behind to
serve in the control condition). That is one reason why I'm devoting so
much of my time to writing books for parents and children and to
getting the message out as best I can. And anything that Congress can
do to help ease the way for those who are trying to help families raise
healthy children, without interfering with the rights of others, will
provide great benefit to society.
Thank you very much. I will be happy to answer any questions you
may have.
RELATED REFERENCES
Anderson, C. A., & Bushman, B. J. (2001). Effects of violent video
games on aggressive behavior, aggressive cognition, aggressive
affect, physiological arousal, and prosocial behavior: A meta-
analytic review of the scientific literature. Psychological
Science, 12,353-359.
Black, S. L., & Bevan, S. (1992). At the movies with Buss and Durkee: A
natural experiment on film violence. Aggressive Behavior, 18, 37-
45.
Bushman, B. J., & Anderson, C. A. (2001). Media violence and the
American public: Scientific facts versus media misinformation.
American Psychologist, 56, 477-489.
Cantor, J. (2003, May). I'll never have a clown in my house'':
Frightening movies and enduring emotional memory. Paper accepted
for presentation at the Annual Conference of the International
Communication Association. San Diego.
Cantor, J. (1998). ``Mommy, I'm scared'': How TV and movies frighten
children and what we can do to protect them. San Diego, CA:
Harcourt.
Cantor, J. (2002). Fright reactions to mass media. In J. Bryant & D.
Zillmann (Eds.), Media effects: Advances in theory and research (2d
ed., pp. 287-306). Mahwah, NJ: Erlbaum.
Cantor, J. (2002). Whose freedom of speech is it anyway? Remarks at
Madison (WI) Civics Club, October 12, 2002. http://
joannecantor.com/Whosefreedom.html
Cantor, J. (2004). Teddy's TV Troubles. Madison, WI: Goblin Fern Press.
Center for Successful Parenting (2003). Can violent media affect
reasoning and logical thinking? http://www.sosparents.org/
Brain%20Study.htm
Harrison, K., & Cantor, J. (1999). Tales from the screen: Enduring
fright reactions to scary media. Media Psychology, 1 (2), 97-116.
Huesmann, L. R., Moise-Titus, J., Podolski, C., & Eron, L. (2003).
Longitudinal relations between children?s exposure to TV violence
and their aggressive and violent behavior in young adulthood: 1977-
1992. Developmental Psychology, 39, 201-221.
Johnson, J. G., Cohen, P., Smailes, E. M., Kasen, S., & Brook, J. S.
(2002). Television viewing and aggressive behavior during
adolescence and adulthood. Science, 295, 2468-2471.
Kirsh, S. J. (1998). Seeing the world through Mortal Kombat-colored
glasses: Violent video games and the development of a short-term
hostile attribution bias. Childhood, 5 (2), 177-184.
Lemish, D. (1997). The school as a wrestling arena: The modeling of a
television series. Communication, 22 (4), 395-418.
[Matthews, V. P.] (2002). Violent video games trigger unusual brain
activity in aggressive adolescents. http://jol.rsna.org/pr/
target.cfm?ID=94
Murray, J. P. (2001). TV violence and brainmapping in children.
Psychiatric Times, XVIII (10).
Owens, J., Maxim, R., McGuinn, M., Nobile, C., Msall, M., & Alario, A.
(1999). Television-viewing habits and sleep disturbance in school
children. Pediatrics, 104 (3), 552, e 27.
Paik, H., & Comstock, G. (1994). The effects of television violence on
antisocial behavior: a meta-analysis. Communication Research, 21,
516-546.
Simons, D., & Silveira, W. R. (1994). Post-traumatic stress disorder in
children after television programmes. British Medical Journal, 308,
389-390.
Singer, M. I., Slovak, K., Frierson, T., & York, P. (1998). Viewing
preferences, symptoms of psychological trauma, and violent
behaviors among children who watch television. Journal of the
American Academy of Child and Adolescent Psychiatry, 37 (10), 1041-
1048.
Twenge, J. M. (2000). The age of anxiety? Birth cohort change in
anxiety and neuroticism, 1952-1993. Journal of Personality and
Social Psychology, 79, 1007-1021.
Zillmann, D., & Weaver, J. B. III (1999). Effects of prolonged exposure
to gratuitous media violence on provoked and unprovoked hostile
behavior. Journal of Applied Social Psychology, 29, 145-165.
__________
ATTACHMENT
The Psychological Effects of Media Violence on Children and Adolescents
Joanne Cantor, Ph.D.
[Submitted as part of written testimony before the House Judiciary
Committee
Subcommittee on Courts, the Internet, and Intellectual Property
on May 20, 2004 at 10:00 a.m., Room 2141 Rayburn Office Building]
Originally Presented at the
Colloquium on Television and Violence in Society
Centre d'etudes sur le media
HEC Montreal
Montreal, Canada
April 19, 2002
Author Contact Information:
Professor Joanne Cantor
Mailing Address:
5205 Tonyawatha Trail
Monona, WI 53716
Email: [email protected]
Web Site: http://www.joannecantor.com
Phone: 608-221-0593
Fax: 608-221-4548
This article is available on-line at http://joannecantor.com/
montrealpap--fin.htm
Research on media violence is often misunderstood by the general
public. One reason has to do with research methodology. We can't
randomly assign children early in their lives to watch different doses
of violence on television and then 15 years later see which children
committed violent crimes. But the same type of limitation also exists
for medical research: We can't randomly assign groups of people to
smoke differing amounts of cigarettes for 15 years, and then count the
number of people who developed cancer.
Tobacco researchers conduct correlational studies in which they
look at the amount people have smoked during their lives and then chart
the rate at which they have succumbed to cancer. They control
statistically for other factors, of course--other healthy and unhealthy
behaviors that either reduce or promote the tendency to develop cancer.
Then they can find out whether smoking contributed to cancer, over and
above these other influences. And since they can't do cancer
experiments on people, they use animal studies. These are artificial,
but they tell us something about the short-term effects of tobacco that
can't be found from correlational studies. Putting the two types of
research together, we now have powerful data about the effects of
smoking on the development of cancer.
Similarly, media violence researchers do longitudinal studies of
children's media exposure and look at the types of behaviors they
engage in over time. They also control for other factors, such as
previous aggressiveness, family problems, and the like.\1\ They don't
look at media violence in a vacuum; they examine whether there is a
correlation between television viewing and violent behavior, even
controlling for other influences. They also do experiments. Like the
animal experiments for cancer, these are not natural situations, but
such experiments fill the gaps they cannot fill otherwise. Experiments
are designed to show short-term effects, like increases in hostility or
more accepting attitudes toward violence--changes that we know increase
the likelihood of violent actions, both in the short term and in the
long run.
---------------------------------------------------------------------------
\1\ Johnson, J. G., Cohen, P., Smailes, E. M., Kasen, S., & Brook,
J. S. (2002). Television viewing and aggressive behavior during
adolescence and adulthood. Science, 295, 2468-2471.
---------------------------------------------------------------------------
A second reason for the misunderstanding of the media-violence work
is that most public discussions of the problem focus on criminal
violence and ignore the other unhealthy outcomes that affect many more
children. In an attempt to clarify the issues, I will first discuss the
research consensus about some of the major consequences of exposure to
media violence, illustrating the general trends in the data with
specific studies that make the outcomes more comprehensible. I will
then discuss some of the implications of these findings for parents and
educators, and for society at large.
Effects of Media Violence on Aggression, Desensitization, and
Interpersonal Hostility
Most of the research and public attention has focused on the
important question of whether viewing violence in the media makes
children and adolescents more violent. The question is not, of course,
whether media violence causes violence, but whether viewing violence
contributes to the likelihood that someone will commit violence or
increases the severity of violence when it's committed. The most direct
and obvious way in which viewing violence contributes to violent
behavior is through imitation or social learning. There is a wealth of
psychological research demonstrating that learning often occurs through
imitation, and, of course, most parents know that children imitate
televised words and actions from an early age. Media apologists, who
cannot deny that imitation sometimes happens, try to argue that the
effects are trivial because children know better than to imitate
anything that's really harmful. We are all familiar with incidents in
which criminal and lethal violence has had an uncanny resemblance to a
scene in a movie. However, any crime is the result of many influences
acting together, and skeptics and even researchers will point out that
isolated anecdotes cannot be generalized to society at large. Because
most children are so fully immersed in our media culture, it is usually
difficult to link a specific media program to a specific harmful
outcome, even though some similarities between media scenarios and
subsequent acts seem too close to be considered coincidences.\2\
---------------------------------------------------------------------------
\2\ A web site titled, ``Brutality Isn't Child's Play'' chronicles
some of these incidents. Retrieved from http://www.bicp.org/
wwfdeaths.html on March 20, 2002.
---------------------------------------------------------------------------
Once in a while researchers get the chance to conduct a ``natural
experiment'' that makes a vivid and compelling point in a systematic
and rigorous fashion. This happened in the mid 1990's in Israel,
shortly after World Wrestling Federation was introduced to Israeli TV.
Noting news reports that this program had resulted in a crisis of
playground injuries in schools, Dafna Lemish of Tel Aviv University
conducted a nationwide survey of elementary school principals, with
follow-up questionnaires of teachers and students in selected
schools.\3\ What Lemish found was that more than half of the principals
responding to her survey reported that WWF-type fighting had created
problems in their schools. The principals had no trouble distinguishing
the imitative behavior they were suddenly seeing from the martial-arts
type behaviors that had occurred prior to the arrival of WWF. The new
behaviors occurred during re-creations of specific wrestling matches
that had aired, and included banging heads, throwing opponents to the
floor and jumping onto them from furniture, poking their eyes with
fingers, pulling their hair, and grabbing their genital areas. Almost
half of the responding principals reported that these new behaviors had
necessitated first aid within the school, and almost one fourth
reported injuries (including broken bones, loss of consciousness, and
concussions) that required emergency room visits or professional
medical care. Although most of the children involved were old enough to
know that the wrestling they were watching was fake, this knowledge did
not stop many of them from trying out the moves themselves. The mayhem
continued throughout Israel until programmers agreed to reduce the
frequency with which WWF appeared, and until schools initiated media
literacy programs designed to counteract the program's effects. During
the past few years, there have been news reports of groups of children
imitating WWF matches in the United States,\4\ and of physicians
dealing with the consequences of such imitation on a regular basis.\5\
---------------------------------------------------------------------------
\3\ Lemish, D. (1997). The school as a wrestling arena: The
modeling of a television series. Communication, 22 (4), 395-418.
\4\ ABCNEWS.com (2001). Backyard wrestling: Don't try these moves
at home. Retrieved from http://abcnews.go.com/sections/GMA/
GoodMorningAmerica/GMA010828Backyard--wrestling.html on March 20, 2002.
\5\ Dube, J. (2000). Wrestling with death: Moves may be faked, but
danger isn't. Retrieved from http://abcnews.go.com/sections/living/
DailyNews/wrestlingdanger991007.html on March 20, 2002.
---------------------------------------------------------------------------
Simply copying what is seen in the media is only one means by which
viewing violence contributes to unhealthy outcomes among youth. Another
commonly discussed psychological process is desensitization.
Desensitization occurs when an emotional response is repeatedly evoked
in situations in which the action tendency that is associated with the
emotion proves irrelevant or unnecessary. For example, most people
become emotionally aroused when they see a snake slithering toward
them. The physiological response they are experiencing is part of what
is called the ``flight or fight'' reaction--n innate tendency that
prepares an organism to do what it needs to do when it's threatened.
But the individual who spends a good deal of time around harmless,
nonpoisonous snakes, knows there is no need to retreat or attack the
animal, and over time, the body ``learns'' not to experience increased
heart rated, blood pressure, or other physiological concomitants of
fear at the sight of snakes. In a somewhat analogous fashion, exposure
to media violence, particularly that which entails bitter hostilities
or the graphic display of injuries, initially induces an intense
emotional reaction in viewers. Over time and with repeated exposure in
the context of entertainment and relaxation, however, many viewers
exhibit decreasing emotional responses to the depiction of violence and
injury. Studies have documented that desensitization results in reduced
arousal and emotional disturbance while witnessing violence.\6\ More
disturbingly, studies have reported that desensitization leads children
to wait longer to call an adult to intervene in a witnessed physical
altercation between peers,\7\ and results in a reduction in sympathy
for the victims of domestic abuse.\8\ Few people would argue that these
are healthy outcomes. Today's youth have greater opportunities for
desensitization to media violence than ever before. We now have so many
television channels, so many movies on video, and so many video-,
computer-, and Internet-based games available, that media-violence
aficionados have a virtually limitless supply and can play intensely
gruesome images over and over, often in the privacy of their own
bedrooms.
---------------------------------------------------------------------------
\6\ Cline, V.B., Croft, R.G., & Courrier, S. (1973).
Desensitization of children to television violence. Journal of
Personality and Social Psychology, 27, 360-365.
\7\ Molitor, F., & Hirsch, K. W. (1994). Children's toleration of
real-life aggression after exposure to media violence: A replication of
the Drabman and Thomas studies. Child Study Journal, 24, 191-207.
\8\ Mullin, C.R., & Linz, D. (1995). Desensitization and
resensitization to violence against women: Effects of exposure to
sexually violent films on judgments of domestic violence victims.
Journal of Personality and Social Psychology, 69, 449-459.
---------------------------------------------------------------------------
A third common outcome of viewing violence is an increase in
hostile feelings. Some people argue that the well-substantiated
correlation between chronic hostility and violence viewing simply shows
that people who are already hostile are more likely to choose violence
as entertainment. Well, it's true that violent, hostile people are more
attracted to media violence,\9\ but research shows that the
relationship goes both ways. A 1992 field investigation\10\ is a good
illustration of this process. Researchers in Quebec went to a theater
and asked moviegoers to fill out the Buss-Durkee hostility inventory
either before or after they viewed a film that they themselves had
selected. The findings showed that both the male and female viewers who
had chosen the Chuck Norris action movie, Missing in Action, were
initially more hostile than the viewers who had selected the nonviolent
drama, A Passage to India, demonstrating that people who were more
hostile to begin with were more likely to be attracted to a violent
than a nonviolent film. Furthermore, viewers' levels of hostility were
even higher after viewing the violent movie, but were at the same low
level after viewing the nonviolent movie. This study once again
disproves the sometimes-popular notion of ``catharsis,'' that violence
viewing helps purge people of their hostile inclinations. To the
contrary.
---------------------------------------------------------------------------
\9\ Goldstein, J., Ed. (1998). Why we watch: The attractions of
violent entertainment. New York: Oxford University Press.
\10\ Black, S.L., & Bevan, S. (1992). At the movies with Buss and
Durkee: A natural experiment on film violence. Aggressive Behavior, 18,
37-45.
---------------------------------------------------------------------------
What are the consequences of this increased hostility after viewing
violence? Often, it interferes with the ability to interact in
interpersonal settings. One aspect of this effect has been termed an
increased hostile attribution bias. A 1998 study illustrated this
outcome in an experiment in which 9- to 11-year-old girls and boys were
asked to play one of two video games.\11\ One was a nonviolent sports
game called NBA JAM:TE; the was other a somewhat sanitized version of
MORTAL KOMBAT II, a highly violent martial arts games. After playing
the game, the children were read five stories involving provoking
incidents in which the intention of the provoker was ambiguous. For
example, in one story, a child gets hit in the back with a ball, but it
is unclear whether the person who threw the ball, always a same-sex
peer of the research participant, has done this on purpose or by
accident. In answering questions after hearing the stories, the
children who had just played the violent video game were more likely
than those who had played the nonviolent game to attribute bad motives
and negative feelings to the perpetrator, and to anticipate that they
themselves would retaliate if they were in that situation.
Participating in violence in fantasy apparently cast a negative cloud
over the children's views of interpersonal interactions
---------------------------------------------------------------------------
\11\ Kirsh, S. J. (1998). Seeing the world through Mortal Kombat-
colored glasses: violent video games and the development of a short-
term hostile attribution bias. Childhood, 5 (2), 177-184.
---------------------------------------------------------------------------
And this increase in hostility is not necessarily short-lived. A
1999 experiment looked at the interpersonal consequences of repeated
exposure to gratuitous violence in movies.\12\ Researchers randomly
assigned both male and female college students to view either intensely
violent or nonviolent feature films for four days in a row. On the
fifth day, in a purportedly unrelated study, the participants were put
in a position to help or hinder another person's chances of future
employment. The surprising results indicated that both the men and the
women who had received the recent daily dose of movie violence were
more willing to undermine that person's job prospects, whether she had
treated them well or had behaved in an insulting fashion. The repeated
violence viewing apparently provided what the researchers termed an
enduring hostile mental framework that damaged interactions that were
affectively neutral as well as those that involved provocation.
---------------------------------------------------------------------------
\12\ Zillmann, D., & Weaver, J. B. III (1999). Effects of prolonged
exposure to gratuitous media violence on provoked and unprovoked
hostile behavior. Journal of Applied Social Psychology, 29, 145-165.
---------------------------------------------------------------------------
These are just a few studies that illustrate some of the unhealthy
effects of media violence. But how representative are these studies?
Although media spokespersons argue that the findings are inconsistent,
meta-analyses, which statistically combine the findings of all the
studies on a particular topic, show otherwise. The most widely quoted
of these meta-analyses was conducted by Paik and Comstock in 1994.\13\
This meta-analysis combined the results of 217 empirical studies
appearing between 1957 and 1990, and included both published and
unpublished studies that reported on the relationship between viewing
violence and a variety of types of antisocial behavior. Using the
correlation coefficient (r) as a measure of association, Paik and
Comstock reported an overall r of .31. Although the size of the
correlations varied depending on the age of the participant and the
genre of programming, a significant association was observed for
viewers of all ages and for all genres of programming.
---------------------------------------------------------------------------
\13\ Paik, H., & Comstock, G. (1994). The effects of television
violence on antisocial behavior: a meta-analysis. Communication
Research, 21, 516-546.
---------------------------------------------------------------------------
A meta-analysis conducted in 2001 \14\ confirmed and updated Paik
and Comstock's conclusions. Bushman and Anderson's analysis included
studies that appeared between 1956 and 2000. The sample of studies was
smaller because it included only published studies and only studies
involving aggressive behavior (eliminating measures of self-report of
aggressive intent and nonviolent antisocial effects). The meta-
analysis, which included 202 independent samples, found an overall
correlation of .20 between exposure to media violence and aggressive
behavior. Anderson and Bushman also published a meta-analysis of the
effects of violent video games on aggression and found a similar effect
size (r = .19, based on 33 independent tests).\15\
---------------------------------------------------------------------------
\14\ Bushman, B. J., & Anderson, C. A. (2001). Media violence and
the American public: Scientific facts versus media misinformation.
American Psychologist, 56, 477-489.
\15\ Anderson, C. A., & Bushman, B. J. (2001). Effects of violent
video games on aggressive behavior, aggressive cognition, aggressive
affect, physiological arousal, and prosocial behavior: A meta-analytic
review of the scientific literature. Psychological Science, 12, 353-
359.
---------------------------------------------------------------------------
Confronted with the meta-analytic results that the findings on the
relationship between media violence on aggressive and hostile behaviors
consistently show an effect, media apologists often claim that the
effects are very small. However, Bushman and Anderson \16\ have
compared the results of media violence meta-analyses to those of well-
documented relationships in nine other areas. Their data showed that
Paik and Comstock's media-violence effect was second in size only to
the association between smoking and lung cancer. Even using the smaller
effect sizes associated with Bushman and Anderson's own meta-analyses,
the media violence effect sizes are still among the largest--larger,
for example, than the relationship between exposure to lead and low IQ
in children, and almost twice as large as the relationship between
calcium intake and bone density.
---------------------------------------------------------------------------
\16\ Bushman, B. J., & Anderson, C. A. (2001). Media violence and
the American public: Scientific facts versus media misinformation.
American Psychologist, 56, 477-489.
---------------------------------------------------------------------------
Effects of Media Violence on Fears, Anxieties and Sleep Disturbances
Although most of researchers' attention has focused on how media
violence affects the interpersonal behaviors of children and
adolescents, there is growing evidence that violence viewing also
induces intense fears and anxieties in young viewers. For example, a
1998 survey of more than 2,000 third through eighth graders in Ohio
revealed that as the number of hours of television viewing per day
increased, so did the prevalence of symptoms of psychological trauma,
such as anxiety, depression, and posttraumatic stress.\17\ Similarly, a
1999 survey of the parents of almost 500 children in kindergarten
through fourth grade in Rhode Island revealed that the amount of
children's television viewing (especially television viewing at
bedtime) and having a television in one's own bedroom, were
significantly related to the frequency of sleep disturbances.\18\
Indeed, 9% of the parents surveyed reported that their child
experienced TV-induced nightmares at least once a week. Finally a
random national survey conducted in 1999 reported that 62% of parents
with children between the ages of two and seventeen said that their
child had been frightened by something they saw in a TV program or
movie.\19\
---------------------------------------------------------------------------
\17\ Singer, M. I., Slovak, K., Frierson, T., & York, P. (1998).
Viewing preferences, symptoms of psychological trauma, and violent
behaviors among children who watch television. Journal of the American
Academy of Child and Adolescent Psychiatry, 37, 1041-1048.
\18\ Owens, J., Maxim, R., McGuinn, M., Nobile, C., Msall, M., &
Alario, A. (1999). Television-viewing habits and sleep disturbance in
school children. Pediatrics, 104 (3), 552.
\19\ Gentile, D. A., & Walsh, D. A. (1999).
MediaQuotientTM: National survey of family media habits,
knowledge, and attitudes. Minneapolis, MN: National Institute on Media
and the Family.
---------------------------------------------------------------------------
Two independently conducted studies of adults' retrospective
reports of having been frightened by a television show or movie
demonstrate that the presence of vivid, detailed memories of enduring
media-induced fear is nearly universal.\20\, \21\ Of the students
reporting fright reactions in the study we conducted at the
Universities of Wisconsin and Michigan, 52% reported disturbances in
eating or sleeping, 22% reported mental preoccupation with the
disturbing material, and 35% reported subsequently avoiding or dreading
the situation depicted in the program or movie. Moreover, more than
one-fourth of the respondents said that the impact of the program or
movie (viewed an average of six years earlier) was still with them at
the time of reporting.
---------------------------------------------------------------------------
\20\ Harrison, K., & Cantor, J. (1999). Tales from the screen:
Enduring fright reactions to scary media. Media Psychology, 1, 97-116.
\21\ Hoekstra, S. J., Harris, R. J., & Helmick, A. L. (1999).
Autobiographical memories about the experience of seeing frightening
movies in childhood. Media Psychology, 1, 117-140.
---------------------------------------------------------------------------
Studies like these and many anecdotal reports reveal that it is not
at all unusual to give up swimming in the ocean after seeing Jaws--in
fact, a surprising number of people report giving up swimming
altogether after seeing that movie. Many other people trace their long-
term fears of specific animals, such as dogs, cats, or insects, to
childhood exposure to cartoon features like Alice in Wonderland or
Beauty and the Beast or to horror movies.\22\ Furthermore, the effects
of these depictions aren't only ``in the head,'' so to speak. As
disturbing as unnecessary anxieties are by themselves, they can readily
lead to physical ailments and interfere with school work and other
normal activities (especially when they disrupt sleep for long periods
of time).
---------------------------------------------------------------------------
\22\ Cantor, J. (1998). ``Mommy, I'm scared'': How TV and movies
frighten children and what we can do to protect them. San Diego, CA:
Harvest/Harcourt.
---------------------------------------------------------------------------
For the most part, what frightens children in the media involves
violence or the perceived threat of violence or harm. It is important
to note, however, that parents often find it hard to predict children's
fright reactions to television and films because a child's level of
cognitive development influences how he or she perceives and responds
to media stimuli. My associates and I have conducted a program of
research to explore developmental differences in media-induced fright
reactions based on theories and findings in cognitive development.\23\,
\24\ This research shows that as children mature cognitively, some
media images and events become less likely to disturb them, whereas
other things become potentially more upsetting.
---------------------------------------------------------------------------
\23\ Cantor, J. (1998). ``Mommy, I'm scared'': How TV and movies
frighten children and what we can do to protect them. San Diego, CA:
Harvest/Harcourt.
\24\ Cantor, J. (2002). Fright reactions to mass media. In J.
Bryant & D. Zillmann (Eds.), Media effects: Advances in theory and
research. (2d Ed.) (pp. 287-306). Mahwah, NJ: Erlbaum.
---------------------------------------------------------------------------
As a first generalization, the importance of appearance decreases
as a child's age increases. Both experimental \25\ and our survey \26\
research supports the generalization that preschool children
(approximately 3 to 5 years old) are more likely to be frightened by
something that looks scary but is actually harmless (like E.T., the
kindly but weird-looking extra-terrestrial) than by something that
looks attractive but is actually harmful; for older elementary school
children (approximately 9 to 11 years), appearance carries much less
weight, relative to the behavior or destructive potential of a
character, animal, or object. A second generalization is that as
children mature, they become more disturbed by realistic, and less
responsive to fantastic dangers depicted in the media. This change
results from developmental trends in children's understanding of the
fantasy-reality distinction.\27\, \28\ Because of this, older
elementary school children begin to be especially susceptible to fear
produced by the news and other realistic presentations. A third
generalization is that as children get older, they become frightened by
media depictions involving increasingly abstract concepts, such as
world problems and invisible environmental threats.\29\, \30\ The
media's constant showing of the events of September 11th and their
aftermath had something to frighten viewers of all ages, but different-
aged children most likely responded to different features of the
presentations. Prior research suggests that preschoolers most likely
responded to images of bloodied victims and expressions of emotional
distress; older elementary school children most likely responded to the
idea of their own and their family's vulnerability to attack;
teenagers, like adults, were able to grasp the enormity of the events
and the long-term implications they presented for civilized
society.\31\
---------------------------------------------------------------------------
\25\ Hoffner, C., & Cantor, J. (1985). Developmental differences in
responses to a television character's appearance and behavior.
Developmental Psychology, 21, 1065-1074.
\26\ Cantor, J., & Sparks, G. G. (1984). Children's fear responses
to mass media: Testing some Piagetian predictions. Journal of
Communication, 34, (2), 90-103.
\27\ Cantor, J., & Sparks, G. G. (1984). Children's fear responses
to mass media: Testing some Piagetian predictions. Journal of
Communication, 34, (2), 90-103.
\28\ Cantor, J., & Nathanson, A. (1996). Children's fright
reactions to television news. Journal of Communication, 46 (4), 139-
152.
\29\ Cantor, J., Wilson, B. J., & Hoffner, C. (1986). Emotional
responses to a televised nuclear holocaust film. Communication
Research, 13, 257-277.
\30\ Cantor, J., Mares, M. L., & Oliver, M. B. (1993). Parents' and
children's emotional reactions to televised coverage of the Gulf War.
In B. Greenberg & W. Gantz (Eds.), Desert storm and the mass media (pp.
325-340). Cresskill, NJ: Hampton Press.
\31\ Cantor, J. (2001). Helping children cope: Advice in the
aftermath of the terrorist attacks on America. http://joannecantor.com/
terror--adv.htm.
---------------------------------------------------------------------------
What Can Be Done and Why It's So Difficult
The research I've described above provides overwhelming evidence
that growing up with unrestricted access to media violence is, in the
least, very unhealthy for young people. Nonetheless, media violence
comes into our homes automatically through television, and is actively
marketed to children and adolescents (even when the content is labeled
as appropriate only for ``mature'' audiences).\32\ Moreover, it is
extremely difficult to disseminate the message of media violence's
harms. An important component of this difficulty is the fact that
violent entertainment is a highly lucrative business and the
entertainment industry is loath to communicate information suggesting
that its products are harmful. An intriguing analysis by Bushman and
Anderson, comparing the cumulative scientific evidence to the way the
issue has been reported in the press, revealed that as the evidence for
the aggression-promoting effect of media violence has become stronger,
news coverage has implied that the relationship was weaker and
weaker.\33\ Parents have been given tools, such as media ratings and
filtering devices like the V-chip, but publicity for these tools has
been so sporadic that parents have little understanding of what they
are or how to use them.\34\ Parents need to receive better information
about the effects of media violence, and they need more convenient and
reliable means of understanding what to expect in a television program,
movie, or video game.
---------------------------------------------------------------------------
\32\ Federal Trade Commission (2000). Marketing violence to
children: A review of self-regulation and industry practices in the
motion picture, music recording, & electronic game industries.
Washington, D.C.: Federal Trade Commission.
\33\ Bushman, B. J., & Anderson, C. A. (2001). Media violence and
the American public: Scientific facts versus media misinformation.
American Psychologist, 56, 477-489.
\34\ Bushman, B. J., & Cantor, J. (2002). Media ratings for
violence and sex: Implications for policymakers and parents. Manuscript
submitted for publication.
---------------------------------------------------------------------------
Parents also need information on parenting strategies that will
help them counteract some of the negative effects of media violence on
their children. Research in cognitive development, for example, has
explored effective ways to reassure children who have been frightened
by media threats.\35\ Strategies for coping with media-induced fears
need to be tailored to the age of the child. Up to the age of about
seven, nonverbal coping strategies work the best.\36\ These include
removing children from the scary situation, distracting them, giving
them attention and warmth, and desensitization.\37\, \38\ Eight-year-
olds and older can benefit from hearing logical explanations of why
they are safe. If what they saw is fantasy, it helps children in this
age group to be reminded that what they have seen could never
happen.\39\ If the program depicts frightening events that can possibly
occur, however, it may help to give older children information about
why what they have seen cannot happen to them \40\ or to give them
empowering instructions on how to prevent it from occurring.\41\
---------------------------------------------------------------------------
\35\ Cantor, J. (1998). ``Mommy, I'm scared'': How TV and movies
frighten children and what we can do to protect them. San Diego, CA:
Harcourt Brace.
\36\ Wilson, B. J., Hoffner, C., & Cantor, J. (1987). Children's
perceptions of the effectiveness of techniques to reduce fear from mass
media. Journal of Applied Developmental Psychology, 8, 39-52.
\37\ Wilson, B. J. (1989). Desensitizing children's emotional
reactions to the mass media. Communication Research, 16, 723-745.
\38\ Cantor, J. (2004). Teddy's TV Troubles. Madison, WI: Goblin
Fern Press.
\39\ Cantor, J., & Wilson, B. J. (1984). Modifying fear responses
to mass media in preschool and elementary school children. Journal of
Broadcasting, 28, 431-443.
\40\ Cantor, J., & Hoffner, C. (1990). Children's fear reactions to
a televised film as a function of perceived immediacy of depicted
threat. Journal of Broadcasting & Electronic Media, 34, 421-442.
\41\ Cantor, J., & Omdahl, B. (1999). Children's acceptance of
safety guidelines after exposure to televised dramas depicting
accidents. Western Journal of Communication, 63 (1), 1-15.
---------------------------------------------------------------------------
As for reducing the aggression-promoting effect of media violence,
research is just beginning to explore mediation strategies that can be
used by parents and teachers. In a study published in 2000,\42\ we
tested means of counteracting the effects of classic cartoons, a genre
involving nonstop slapstick violence that trivializes the consequences
to the victim. This study showed not only that watching a Woody
Woodpecker cartoon could increase boys' endorsement of aggressive
solutions to problems, but that empathy-promoting instructions could
intervene in this effect. Second- through sixth-grade boys were
randomly assigned to one of three groups: (1) a no-mediation group, who
watched the cartoon without instructions; (2) a mediation group who
were asked, before viewing, to keep in mind the feelings of the man in
the cartoon (this was the tree surgeon who was the target of Woody's
attacks); and (3) a control group, who didn't see a cartoon. As is
usually found in such studies, the children who had just seen the
violent cartoon without instructions scored higher on pro-violence
attitudes than those in the control condition (showing stronger
agreement with statements like, ``Sometimes fighting is a good way to
get what you want''). However, the children who were asked to think
about the victim's feelings showed no such increase in pro-violence
attitudes. As a side-effect, this empathy-promoting intervention
reduced the degree to which the children found the cartoon funny. An
empathy-promoting intervention may therefore have a dual benefit--
intervening in the direct effect of viewing and perhaps reducing future
choices of similar fare. More research is needed to explore other ways
to intervene in the negative effects of media violence.
---------------------------------------------------------------------------
\42\ Nathanson A.I., & Cantor, J. (2000). Reducing the aggression-
promoting effect of violent cartoons by increasing children's fictional
involvement with the victim. Journal of Broadcasting & Electronic
Media, 44, 125-142.
---------------------------------------------------------------------------
In conclusion, media violence has many unhealthy effects on
children and adolescents. Even though violence has been and will
continue to be a staple of our media environment, it is appropriate to
speak out when especially problematic presentations are aired in
contexts in which children are likely to see them and when
inappropriate programming is actively marketed to vulnerable young
people.\43\ Although the entertainment industries are mostly concerned
with profits, they sometimes react to large-scale criticism, and
sponsors and local television stations prefer to avoid public censure.
---------------------------------------------------------------------------
\43\ A current campaign asks Toys `R' Us to stop selling WWF-
related merchandize. See http://www.bicp.org/bicp1.html
---------------------------------------------------------------------------
Beyond complaining about media practices, researchers and advocates
for the welfare of children can work to diminish the negative influence
of media violence by providing better public education about media
effects, by developing and promoting more useful content labels and
filters, and by exploring effective intervention strategies based on
research findings. We also need to expand media literacy education for
children, including helping them place what they see in perspective,
and encouraging them to engage in a critical analysis of their own
media choices.
Mr. Smith. Mr. McIntyre?
STATEMENT OF JEFF J. McINTYRE, SENIOR LEGISLATIVE AND FEDERAL
AFFAIRS OFFICER, AMERICAN PSYCHOLOGICAL ASSOCIATION
Mr. McIntyre. Good morning, Mr. Chairman and Members of the
House Judiciary Subcommittee on Courts, the Internet, and
Intellectual Property. I'm Jeff McIntyre and honored to be here
to represent the American Psychological Association.
I have conducted years of research related--or years of
work related to children and the media as a negotiator for the
development of a television rating system, as an advisor to the
Federal Communications Commission's V-Chip Task Force, and as a
member of an informal White House Task Force on Navigating the
New Media, as a member of the Steering Committee for the Decade
of Behavior Conference on Digital Childhood, and most
importantly as a representative of the research and concerns of
the over 150,000 members and affiliates of the American
Psychological Association.
At the heart of this issue of children and the media is a
matter long addressed by psychological research, the effects of
repeated exposure of children to violence. The media violence
issue made its official debut on Capitol Hill in 1952 with the
first of a series of Congressional hearings. That particular
hearing was held in the House of Representatives before the
Commerce Committee. The following year, in 1953, the first
major Senate hearing was held before the Senate Subcommittee on
Juvenile Delinquency, who convened a panel to inquire into the
impact of television violence on juvenile delinquency.
There have been many hearings since the 1950's, but there
has only been limited change until recently. Media violence
reduction is fraught with legal complications. Nevertheless,
our knowledge base has improved over time with the publication
of significant and landmark reviews, and based on these
research findings, several concerns emerge when violent
material is aggressively marketed to children.
Foremost, the conclusions drawn on the basis of over 30
years of research contributed by American Psychological
Association members, including the Surgeon General's report in
1972, the National Institute of Mental Health's report in 1982,
and the industry-funded 3-year national television violence
study in the 1990's showed that the repeated exposure of
violence in the mass media places children at risk for
increases in aggression, desensitization to acts of violence,
and unrealistic increases in fear of becoming a victim of
violence, which results in the development of other negative
characteristics, such as a mistrust of others.
If this sounds familiar, it is because this is the
foundation upon which the representatives of the public health
community, comprised of the American Psychological Association,
the American Academy of Pediatrics, and the American Medical
Association, issued a joint consensus statement in 2000 on what
we absolutely know to be true regarding children's exposure to
violence in the media.
Certain psychological facts remained and are well
established in this debate. As APA member Dr. Rowell Huesmann
stated before the Senate Commerce Committee, just as every
cigarette you smoke increases the chances that some day you
will get cancer, every exposure to violence increases the
chances that someday a child will behave more violently than
they otherwise would.
Hundreds of studies have confirmed that exposing our
children to a steady diet of violence in the media makes our
children more violence-prone. The psychological processes here
are not mysterious. Children learn by observing others. Mass
media and the advertising world provide a very attractive
window for these observations.
The excellent children's programming, such as ``Sesame
Street,'' and pro-social marketing, such as that around bicycle
helmets, that exists is to be commended and supported.
Psychological research shows that what is responsible for the
effectiveness of good children's programming and pro-social
marketing is that children learn from their media environment.
If kids can learn positive behaviors via this medium, they can
learn the harmful ones, as well.
The role of ratings systems in this discussion merits
attention. There continues to be concern over the ambiguity and
implementation of current ratings systems. It appears that
ratings systems are undermined by the marketing efforts of the
very groups responsible for their implementation and
effectiveness. That, Chairman Smith and Members of the
Subcommittee, displays a significant lack of accountability and
should be considered when proposals for industry self-
regulation are discussed.
Also undermined here are parents and American families. As
the industry has shown a lack of accountability in the
implementation of the existing ratings system, parents have
struggled to manage their families' media diet against
misleading and contradictory information, for instance, the
marketing of an R-rated film to children under the age of 17.
While the industry has made some information regarding the
ratings available, more information regarding content needs to
be made more available. As with nutritional information, the
content labeling should be available on the product and not
hidden on websites or in the occasional pamphlet.
Generally speaking, most adults see advertising as a
relatively harmless annoyance. However, advertising directed at
children, especially at young children, that features violence
generates concern. The average child is exposed to
approximately 20,000 commercials per year, and this is only for
television. It does not include print or the Internet. Much of
this is during weekend morning or weekday afternoon
programming. Most of the concern stems not from the sheer
number of commercial appeals, but from the inability of some
children to appreciate and defend against the persuasive intent
of marketing, especially advertising featuring violent product.
The Federal Trade Commission report on the marketing of
violence to children heightens these concerns. As a result of
the Children's Online Privacy Protection Act, the Federal Trade
Commission has ruled that parents have a right to protect their
children's privacy from the unwanted solicitation of their
child's personal information. We would argue that based on the
years of psychological research on violence prevention and
clinical practice and violence intervention, parents have the
right to protect their children from material that puts them at
risk of harm.
With these considerations in place for children's privacy,
the precedent is well established about children's health and
safety. Decades of psychological research bear witness to the
potential harmful effects on our children and our nation if
these practices continue.
Chairman Smith and Subcommittee Members, thank you for your
time. Please regard the American Psychological Association as a
resource to your Committee as you consider this and other
issues.
Mr. Smith. Thank you, Mr. McIntyre.
[The prepared statement of Mr. McIntyre follows:]
Prepared Statement of Jeff J. McIntyre
Good morning, Mr. Chairman and Members of the House Judiciary
Subcommittee on Courts, the Internet, and Intellectual Property. I am
Jeff McIntyre and am honored to be here to represent the American
Psychological Association.
I have conducted years of work related to children and the media as
a negotiator for the development of a television ratings system, as an
advisor to the Federal Communications Commission's V-Chip Task Force,
as a member of an informal White House Task Force on Navigating the New
Media, as a member of the steering committee for the Decade of Behavior
Conference on Digital Childhood, and most importantly, as a
representative of the research and concerns of the over 150,000 members
and affiliates of the American Psychological Association.
At the heart of the issue of children and the media is a matter
long addressed by psychological research--the effects of repeated
exposure of children to violence. The media violence issue made its
official debut on Capitol Hill in 1952 with the first of a series of
congressional hearings. That particular hearing was held in the House
of Representatives before the Commerce Committee. The following year,
in 1953, the first major Senate hearing was held before the Senate
Subcommittee on Juvenile Delinquency, then headed by Senator Estes
Kefauver, who convened a panel to inquire into the impact of television
violence on juvenile delinquency.
There have been many hearings since the 1950's, but there has been
only limited change--until recently. Media violence reduction is
fraught with legal complications. Nevertheless, our knowledge base has
improved over time, with the publication of significant and landmark
reviews. Based on these research findings, several concerns emerge when
violent material is aggressively marketed to children.
Foremost, the conclusions drawn on the basis of over 30 years of
research contributed by American Psychological Association members--
including the Surgeon General's report in 1972, the National Institute
of Mental Health's report in 1982, and the industry funded, three-year
National Television Violence Study in the 1990's--show that the
repeated exposure to violence in the mass media places children at risk
for:
increases in aggression;
desensitization to acts of violence;
and unrealistic increases in fear of becoming a
victim of violence, which results in the development of other
negative characteristics, such as mistrust of others.
If this sounds familiar, it is because this is the foundation upon
which representatives of the public health community--comprised of the
American Psychological Association, the American Academy of Pediatrics,
and the American Medical Association issued a joint consensus statement
in 2000 on what we absolutely know to be true regarding children's
exposure to violence in the media.
Certain psychological facts remain are well established in this
debate. As APA member Dr. Rowell Huesmann stated before the Senate
Commerce Committee, just as every cigarette you smoke increases the
chances that someday you will get cancer, every exposure to violence
increases the chances that, some day, a child will behave more
violently than they otherwise would.
Hundreds of studies have confirmed that exposing our children to a
steady diet of violence in the media makes our children more violence
prone. The psychological processes here are not mysterious. Children
learn by observing others. Mass media and the advertising world provide
a very attractive window for these observations.
The excellent children's programming (such as Sesame Street) and
pro-social marketing (such as that around bicycle helmets) that exists
is to be commended and supported. Psychological research shows that
what is responsible for the effectiveness of good children's
programming and pro-social marketing is that children learn from their
media environment. If kids can learn positive behaviors via this
medium, they can learn the harmful ones as well.
The role of ratings systems in this discussion merits attention.
There continues to be concern over the ambiguity and implementation of
current ratings systems. It appears that ratings systems are undermined
by the marketing efforts of the very groups responsible for their
implementation and effectiveness. That, Chairman Smith and members of
the Subcommittee, displays a significant lack of accountability and
should be considered when proposals for industry self-regulation are
discussed.
Also undermined here are parents and American families. As the
industry has shown a lack of accountability in the implementation of
the existing ratings system, parents have struggled to manage their
family's media diet against misleading and contradictory information.
(For instance, marketing an R rated film to children under 17.) While
the industry has made some information regarding the ratings available,
more information regarding content needs to be made more accessible. As
with nutritional information, the content labeling should be available
on the product and not hidden on websites or in the occasional
pamphlet.
Generally speaking, most adults see advertising as a relatively
harmless annoyance. However, advertising directed at children,
especially at young children, that features violence generates concern.
The average child is exposed to approximately 20,000 commercials per
year. This is only for television and does not include print or the
Internet. Much of this is during weekend morning or weekday afternoon
programming. Most of the concern stems not from the sheer number of
commercial appeals but from the inability of some children to
appreciate and defend against the persuasive intent of marketing,
especially advertising featuring violent product.
A recent Federal Trade Commission report on the Marketing of
Violence to Children heightens these concerns. As a result of the
``Children's On-Line Privacy Protection Act'' the Federal Trade
Commission has ruled that parents have a right to protect their
children's privacy from the unwanted solicitation of their children's
personal information. We would argue that, based on the years of
psychological research on violence prevention and clinical practice in
violence intervention, parents also have the right to protect their
children from material that puts them at risk of harm. With the
considerations in place for children's privacy, the precedent for
concern about children's health and safety is well established.
Decades of psychological research bear witness to the potential
harmful effects on our children and our nation if these practices
continue. Chairman Smith and Subcommittee members, thank you for your
time. Please regard the American Psychological Association as a
resource to the committee as you consider this and other issues.
Mr. Smith. Mr. Aho?
STATEMENT OF BILL AHO, CHIEF EXECUTIVE OFFICER, CLEARPLAY, INC.
Mr. Aho. Good morning, Chairman Smith, Ranking Subcommittee
Member Berman, and Members of the Committee. Thank you for
inviting me to testify today on this important issue.
My name is Bill Aho and I'm the Chief Executive Officer of
ClearPlay, a small but vibrant business with a positive mission
and, unfortunate, daunting opposition. ClearPlay is based on
the belief that families have the right to watch movies in the
privacy of their homes any way they choose. ClearPlay's
technology provides families the choice to watch movies with
less graphic violence, nudity, explicit sex, and profanity.
This is the choice that many families desire. Many see it
as a useful parenting tool that will be beneficial to their
children. We believe that it is not in the best interests of
society for the movie industry, in an effort to extend its
artistic control, to take actions that would eliminate this
choice for families.
ClearPlay's parental controls are a feature available for
DVD players or for any consumer electronics device that plays
movies. It works with ClearPlay movie filters, which are
uniquely created for each movie as it is released on DVD. These
filters identify or tag specific content, such as graphic
violence, nudity, or different kinds of profanity. The customer
then chooses how to watch the movie, either with ClearPlay off
or using any combination of the 14 ClearPlay filters, for
16,000 different potential settings.
ClearPlay's frame-accurate technology seamlessly skips and
mutes over objectionable material. It does not add or dub
content. ClearPlay works with standard studio-issued DVDs which
are purchased or rented at normal retail outlets.
This is a solution that American families want and
Americans overwhelmingly believe that it should be the right of
the family. In a 2003 poll of over 17,000 respondents conducted
by MSN, 82 percent said that consumers should be able to use
products like ClearPlay to skip over unwanted scenes or
language. Further, ClearPlay's research shows that a majority
of U.S. households want the option to filter DVD movies of
content they might find concerning for their families,
especially those with children.
In late 2002, the Director's Guild of America, 15 prominent
movie directors and eight movie studios filed suit against
ClearPlay, along with other companies with related products in
our field. And while our opponents like to lump all the
companies together, I would like to emphasize the important
difference between ClearPlay and most of the other companies
involved in this sector.
Most of these companies make copies of DVDs that they
resell as edited versions. Now, in contrast, ClearPlay neither
copies nor edits DVDs. ClearPlay's technology is more like an
automated fast-forward or mute button on your remote control or
the technological equivalent of covering your eyes during
disturbing scenes, except that we do it in a seamless,
consumer-friendly manner.
I would like to leave the Committee with two overriding
ideas as it considers the potential of this technology and
appropriate actions for the future. First, ClearPlay's good for
families. I respect and appreciate the testimony of the other
witnesses. They echo an overwhelming body of evidence which
declares with conviction and concern that the media can have a
powerful influence on children's behavior. But no stack of
statistics is more compelling to me than my personal feelings
as a father, and there's no doubt in my mind that if I can
reduce my children's exposure to graphic violence or explicit
sex, that's a good thing.
Second, it's a fundamental matter of rights. Whose right is
it to decide what I watch in my home with my family? I would
respectfully submit to this Committee that that choice is a
personal one to be made by parents. It's their right, their
choice. It's not ClearPlay's choice. We simply provide the
tools and the options. It's not the directors' choice and it
certainly isn't the movie studios' choice. It's the right of
the parent, plain and simple, to do what is best for their
children, and if that means skipping some blood or gore in a
PG-13 movie, then we are there to help.
Quite simply, ClearPlay respects and supports the rights of
parents. Thank you.
Mr. Smith. Thank you, Mr. Aho.
[The prepared statement of Mr. Aho follows:]
Prepared Statement of Bill Aho
ClearPlay is founded on the belief that families have the right to
watch movies in the privacy of their homes any way they choose.
ClearPlay parental controls provide families the choice to filter
movies of graphic violence, nudity, explicit sex and profanity. This is
a choice that many families desire. Many see it as a useful parenting
tool that will be beneficial to their children. We believe that it is
not in the best interest of society for the movie industry, in an
effort to extend its artistic control over the experience of viewers,
to take actions that would eliminate this choice for families.
ClearPlay parental controls are a feature available on DVD players,
or on any consumer electronics device that plays movies. They work with
ClearPlay Movie Filters, which are uniquely created for each movie as
it is released on DVD. These filters identify, or tag, frames that have
specific content, such as graphic violence, nudity or different kinds
of profanity. The customer chooses how to watch the movie-either with
ClearPlay off or with ClearPlay on, using any combination of the 14
ClearPlay Filters, for over 16,000 different potential settings.
ClearPlay's frame-accurate technology seamlessly skips and mutes over
objectionable content. It does not dub or add content. ClearPlay
parental control works with standard, studio-authorized DVD's which are
purchased or rented at normal retail outlets.
ClearPlay provides parental controls that American families want.
Americans also overwhelmingly believe that they should have the right
to use these parental controls within their own homes. In a 2003 poll
of 17,000 respondents conducted by MSN, 82% said that consumers should
be able to use products like ClearPlay to skip over unwanted scenes or
languages. .Further, ClearPlay's research shows that a majority of U.S.
households want the option to filter DVD movies of content they find
offensive--especially families with children.
ClearPlay does not violate copyright or trademark laws. Indeed it
doesn't copy or alter any of the works themselves, and it doesn't use
anyone else's ``trademarks'' or distribute anyone else's products.
ClearPlay merely automates certain skipping and muting functions of a
DVD player, functions that could be performed less conveniently with a
conventional remote control. Trademark and copyright laws were never
intended to deprive families of choices in how they watch, in the
privacy of their own homes, DVDs they have lawfully bought or rented.
In late 2002, the Directors Guild of America, 16 prominent movie
directors and eight movie studios filed suit against ClearPlay, along
with other companies that either sold edited VHS tapes or DVD's or
claimed technology that would add or dub new content onto DVD's.
The Directors rely on the Lanham Act to claim trademark
infringement to vindicate ``moral rights'' that are not recognized in
the United States or elsewhere. It is a relatively weak case, which by
the DGA's own admission is not likely to prevail. The studios' case is
more intricate, and is based on what we feel is a substantial extension
of the copyright law that was never intended by Congress.
These lawsuits have succeeded in delaying American consumers from
having access to advanced parental controls for more than a year. When
the lawsuits were first filed, a major DVD manufacturer that had
already completed integration of ClearPlay's parental controls dropped
the feature just weeks before production. They told us that they chose
to remove ClearPlay parental controls not because they feared the
eventual outcome of the lawsuits, but rather because they did not want
to be involved in litigation with the studios.
These lawsuits have also succeeded in putting an enormous financial
burden on ClearPlay and making it extremely difficult for our company
to generate investment. No one likes to invest money to pay lawyers. As
a result, the management of the company has had to make substantial
personal sacrifices to be able to realize our vision and bring this
product to market.
Over the past eight months, we have made every effort to find an
amicable solution with the DGA and the studios. We have taken the
initiative to schedule 25 meetings--all held at the studio offices in
Los Angeles. We have voluntarily explained our business, shared our
research, given models of our product and put forth multiple proposals
for settlement, all in an effort to find a solution where ClearPlay can
maintain a viable business and satisfy its customers--the American
families.
Despite these efforts, there remains a substantial gap between what
we believe are the rights of consumers, and what the studios as
copyright holders will allow. I would like to outline these:
ISSUE #1: WHAT CONTENT SHOULD FAMILIES BE ALLOWED TO FILTER?
We believe that consumers should have the right to filter any
graphic violence, disturbing sexual content, or offensive language that
they choose for their families in their homes. The DGA has suggested
that they would only allow ClearPlay parental controls to filter
whatever content is altered in airline or TV versions.
There are several problems with this idea:
a. No written standards exist for airline or TV versions.
b. Airline and TV standards are a moving target, and become
more lenient over time.
c. Based on our research, airline and TV standards are not
consistent with either ClearPlay's filter categories or the
interests of many of our consumers.
We have suggested various compromises. We could make an airline or
TV equivalent the default, but allow consumers to override. We could
allow directors to review the filters and make suggestions. Or we could
come up with agreed-to definitions of ClearPlay categories, some of
which might include content not removed from airline or TV versions.
ISSUE #2: WHAT MOVIES SHOULD FAMILIES BE ALLOWED TO FILTER?
Again, we believe it is the right of families to watch any movie
they choose with or without ClearPlay. The DGA has said that they want
ClearPlay parental controls to work only with movies that have airline
or TV versions. Further, the DGA has said that ClearPlay would have to
get special permission from all ``Final Cut'' directors--prominent
directors that negotiate personal services contracts that may supersede
standard DGA contracts. Again, there are significant problems with
this:
a. The timing of TV versions really isn't relevant to DVD
consumers. TV versions can often lag the release of the DVD by
a year or more.
b. Airline versions are limited. It is unclear exactly what
movies have airline versions. We know that there are numerous
prominent films that don't. Many independent films do not. And
there are other reasons as well, for instance, if there are
integral scenes featuring airplane crises.
c. Final Cut directors are often involved in prominent movies
that are highly desired by the public and our customers.
Despite our requests, we have been unable to secure information
from all the studios about what movies would or would not be
available as a result of Final Cut contracts.
d. There appears to be no protection for a proliferation of
new special agreement contracts specifically prohibiting
ClearPlay parental controls.
We have shown a willingness to be flexible. But we would hope that
the industry could present a proposal that would guarantee consumers
the right to filter most, if not all movies.
ISSUE #3: HOW LONG CAN CLEARPLAY PROVIDE FILTERS TO CONSUMERS?
We believe the rights should be interminable, and not subject to
studio contracts or collective bargaining timetables. The DGA has
suggested that after December 2005, all rights would expire. In effect,
this would give Hollywood the opportunity to instigate a new round of
litigation in 2006. Naturally, this is unacceptable, and we believe at
least a 10-year term is reasonable. We have yet to hear a response from
the industry on this issue.
Perhaps these issues can be resolved through more settlement
discussions. But if the committee agrees that families should have the
right to filter movies within their own homes of unwanted violence or
sex, then I think it would be useful at these hearings to explore these
issues. If it becomes apparent that the movie industry either can not,
or is not willing to come to a settlement that is favorable to the
American consumer, then I would respectfully request that we seek a
legislative solution as expeditiously as possible.
Thank you.
Mr. Smith. Ms. Heins?
STATEMENT OF MARJORIE HEINS, FELLOW, BRENNAN CENTER FOR
JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW, AND FOUNDING
DIRECTOR, FREE EXPRESSION POLICY PROJECT
Ms. Heins. Thank you, Mr. Smith and Members of the
Subcommittee. Thank you very much for giving me the opportunity
to talk to you today about movie filtering, the first
amendment, and the whole issue of media effects on young
people.
I first got interested in this subject about a decade ago
when I was a first amendment attorney at the ACLU and I
discovered that the most common justification for censoring art
is the assumed adverse effect that sexual or violent content
will have on impressionable youth. Ultimately, I wrote a book,
Not in Front of the Children, which examines the underpinnings
of this widespread assumption of harm to minors. The book
concludes that not only is the harm unproven, but that it is
probably unprovable and that, ironically, censoring the young
may have actually some ill effects on their imaginations, their
psychological growth, and their ability to confront and
understand troubling aspects of human life.
Now, some of you may be troubled by my references to
censorship. It's a kind of hot-button word, so let me explain
that I use the term simply to describe any effort to suppress
expression that is considered inappropriate or unacceptable.
Some say that filtering technologies are simply a way for
parents or others who object to sex or violence or profane
language in movies to control what is viewed in their home.
That's fair enough, but it is still a form of censorship.
Now, it's true that the manufacture and use of this
technology doesn't violate the first amendment, which generally
only applies to the Government. But if Congress were to endorse
the technology through law, it would create first amendment
problems. Singling out constitutionally protected expression
for adverse treatment under the law, in this instance scenes
and dialogues from films that a private company has decided
contain unacceptable levels of sex or some other topic, is
precisely what the first amendment says Congress cannot do.
Moreover, just as a matter of policy, this technology is a
bad idea because it reflects a simplistic and erroneous view of
how art affects human beings. It suggests that the way to
protect our children and adolescents from controversial or
troubling media content is to censor rather than educate them.
But on the contrary, education and media literacy skills is far
more likely than filters, V-chips, or censorship laws to
produce healthy, non-violent and sexually responsible adults.
As the National Research Council wrote in a 2002 report on
the related subject of Internet filters, ``media literacy
provides children with skills in critically evaluating the
content inherent in media messages. A child with these skills
is less likely to stumble across inappropriate material and
more likely to be better able to put it into context if and
when he or she does.''
And they made the analogy to swimming pools. They can be
dangerous for children. To protect them, one can install locks,
put up fences, and deploy pool alarms. All of these measures
are helpful, but by far, the most important thing one can do
for one's children is to teach them how to swim.
In the time remaining, let me just address the claims that
are so frequently made and that you've heard here today that
social science research has proved media violence to cause
aggressive behavior. I was perfectly willing to accept this
conventional wisdom when I began research for Not in Front of
the Children, but what I discovered, like so many independent
researchers before me, was that, number one, most of the
research has actually produced null results.
Number two, claimed positive results are often based on
manipulation of statistics or flawed measures of aggression,
such as punching a Bobo doll, which is an acceptable form of
play aggression, recognizing aggressive words on computer
screens, or one of my favorites, popping a balloon.
There is no uniformity in research results, the first
requirement for scientific validity. Some studies have found
children more aggressive after watching ``Sesame Street'' or
``Mr. Rogers.'' Joanne Cantor's book, Mommy, I'm Scared,
documents anxiety reactions among children exposed to such
relatively non-violent fare as ``Little House on the Prairie,''
``Sleeping Beauty,'' and ``Alice in Wonderland.'' No filter V-
chip or censorship law can identify what from the vast array of
art and literature might frighten a particular child.
Even correlational research, which can be suggestive but
certainly does not show causation, is inconclusive. Violent
crime rates, as I'm sure you know, for youth have been
declining in the last decade, even as media violence has become
more intense. In 1986, one researcher found negative
correlations between exposure to violent TV and violent crime
in 281 metropolitan areas. He stated, ``the data consistently
indicate that high levels of exposure to violent television
content are accompanied by relatively low rates of violent
crime.''
Finally, there's no uniform definition of media violence in
either experimental or correlational studies. Some researchers
use cartoons, some use Batman, Superman, fight scenes in
movies. Even the American Psychological Association, which
speaks usually more guardedly than Mr. McIntyre did today, in
terms of risks rather than proof, acknowledges that ``violence,
per se, is not the problem. It is the manner in which most
violence on television is shown that should concern us.'' Yet
social science studies rarely test the context in which
violence is shown or the artistic merit of the work. Certainly,
movie filters don't make these distinctions.
We don't have time to go into much more detail about the
media violence literature now. I have, however, attached to my
testimony a brief Friend of the Court brief in a case--one of
the cases that Professor Cantor referred to, challenging a law
restricting minors' access to video games. The brief from these
33 media scholars explains in detail why, despite decades of
studies, there is no credible evidence of a causative relation
between fantasy violence and the real thing.
As our own Federal Trade Commission reported, no firm
conclusions about adverse effects can be drawn from media
violence research, and similarly, in 1999, the British medical
journal the Lancet criticized U.S. medical----
Mr. Smith. Ms. Heins, are you getting to the end of your
testimony?
Ms. Heins. Yes, sir.
Mr. Smith. Okay.
Ms. Heins.--associations for falsely claiming that
thousands of studies have proven adverse effects. The editors
wrote, ``it is inaccurate to imply that the published work
strongly indicates a causal link between virtual and actual
violence.''
Now, no doubt, there is common sense appeal to the notion
that impressionable viewers will imitate what they see on
screen, and I don't think anybody doubts that media has
powerful effects. It's just not clear that scientific studies
can ever prove what they are, and they tend to vary.
But to address these concerns, education is far more
effective than privately manufactured filters which are
marketed to families on the false premise that a blunt and
mechanical censorship tool will keep their children safe.
Ultimately, filters, like other forms of censorship, are a
distraction from the more difficult and less sensational work
of educating kids and fighting the real causes of violence in
society, including poverty, firearms, drugs, alcohol, peer
pressures, and domestic abuse.
Thank you very much.
Mr. Smith. Thank you, Ms. Heins.
[The prepared statement of Ms. Heins follows:]
Prepared Statement of Marjorie Heins
Good morning, and thank you for the opportunity to address you
today regarding movie filtering, the First Amendment, and the whole
issue of ``media effects'' on young people.
I became intrigued by this subject a decade ago, when, as a First
Amendment attorney at the ACLU, I discovered that the most common
justification for censoring art is the assumed adverse effect that
sexual or violent content will have on impressionable youth.
Ultimately, I wrote a book, Not in Front of the Children, which
examines the cultural and legal underpinnings of this widespread
assumption of ``harm to minors.'' The book concludes not only that the
harm is unproven, but that it is probably unprovable, and that,
ironically, censoring the young may actually have ill effects on their
imaginations, their psychological growth, and their ability to confront
and understand troubling aspects of human life.
After finishing Not in Front of the Children, I created the Free
Expression Policy Project--or FEPP, for short--whose goal is to provide
research and analysis on difficult censorship issues. Just a few weeks
ago, FEPP became part of the Brennan Center for Justice at NYU School
of Law.
Some of you may be troubled by my references to ``censorship,'' so
let me explain that I use the term simply to describe any effort to
suppress expression that is considered inappropriate or unacceptable.
Some say that filtering is simply a way for parents or others who
object to sex, violence, or profane language in movies to control what
is viewed in their home. Fair enough; but it is a form of censorship
nonetheless.
It's true that the manufacture and use of this technology does not
violate the First Amendment, which generally applies only to the
government. (Whether it violates copyright law is another matter.) But
if Congress were to endorse the technology through law, it would create
First Amendment problems. Singling out constitutionally protected
expression for adverse treatment under the law--in this instance,
scenes and dialogue from films that a private company has decided
contain unacceptable levels of sex or violence--is precisely what the
First Amendment condemns.
Moreover, this technology is a bad idea, because it reflects a
simplistic and erroneous view of how art affects human beings. It
suggests that the way to protect our children and adolescents from
controversial or troubling media content is to censor rather than
educate them. But on the contrary, education in media literacy skills--
understanding moviemaking methods, identifying racial and gender
stereotypes, and testing media messages against community values--is
far more likely than filters, v-chips, or censorship laws to produce
healthy, nonviolent, and sexually responsible adults.
As the National Research Council, a part of the National Academies,
wrote in a 2002 report (on the related subject of Internet filters):
``Information and media literacy provide children with skills
in . . . critically evaluating the content inherent in media
messages. A child with these skills is less likely to stumble
across inappropriate material and more likely to be better able
to put it into context if and when he or she does. . . .
``Swimming pools can be dangerous for children. To protect
them, one can install locks, put up fences, and deploy pool
alarms. All of these measures are helpful, but by far the most
important thing that one can do for one's children is teach
them to swim.'' \1\
---------------------------------------------------------------------------
\1\ National Research Council, Youth, Pornography, and the Internet
(2002), http://bob.nap.edu/html/youth--internet, Executive Summary.
FEPP's recent report, Media Literacy: An Alternative to Censorship,\2\
describes the work that has been done in America and elsewhere to
advance this productive and non-censorial approach to concerns about
popular culture.
---------------------------------------------------------------------------
\2\ Available at http://www.fepproject.org/policyreports/
medialiteracy.pdf.
---------------------------------------------------------------------------
In the time remaining, let me address the claims that are so
frequently made that social science research has proved ``media
violence'' to cause aggressive behavior. I was quite willing to accept
this conventional wisdom when I began research for Not in Front of the
Children, but I what discovered, like many independent reviewers before
me, was that:
(1) Most of the research has actually produced ``null''
results.
(2) Claimed positive results are often based on manipulation
of statistics, or flawed measures of aggression, such as
punching a Bobo doll (a socially accepted form of play
aggression), recognizing ``aggressive words'' on a computer
screen, or popping a balloon.
(3) There is no uniformity in research results--the first
requirement for scientific validity. Some studies have found
children more aggressive after watching Sesame Street and Mr.
Rogers' Neighborhood. Joanne Cantor's book, Mommy, I'm Scared,
documented anxiety reactions among children exposed to such
relatively nonviolent TV fare as Little House on the Prairie,
Sleeping Beauty, and Alice in Wonderland.\3\ No filter, v-chip,
or censorship law can identify what, from the vast array of art
and literature, might frighten a particular child. (When my
now-grown son was 6 or 7 years old, he became frightened while
watching the opening scene of Treasure Island and hearing the
scary music.)
---------------------------------------------------------------------------
\3\ Joanne Cantor, Mommy, I'm Scared (New York: Harcourt Brace,
1988).
(4) Even correlational research--which can be suggestive, but
does not show causation--is inconclusive. Violent crime rates
for youth have been declining even as media violence has become
more intense. In 1986, one researcher found negative
correlations between exposure to violent TV and violent crime
in 281 metropolitan areas. He stated: ``The data consistently
indicate that high levels of exposure to violent television
content are accompanied by relatively low rates of violent
crime.'' \4\
---------------------------------------------------------------------------
\4\ Steven Messner, ``Television Violence and Violent Crime,''
33(3) Social Problems 218, 228 (1986).
(5) There is no uniform definition of ``media violence'' in
either experimental or correlational studies. Some researchers
use cartoons; others use Batman, Superman, or fight scenes in
movies. Indeed, some studies simply look for relationships
between ``aggressive behavior'' and general TV viewing, not
violent viewing. Even the American Psychological Association,
which speaks guardedly in terms of ``risks'' rather than proof,
acknowledges that ``violence per se is not the problem; it is
the manner in which most violence on television is shown that
should concern us.'' \5\ Yet social science studies rarely test
the context in which violence is shown: Is used by a villain or
a hero? Is it used in self-defense? Does it have outstanding
artistic value? Certainly, movie filters do not make these
distinctions.
---------------------------------------------------------------------------
\5\ Comments of the American Psychological Association in FCC No.
97-55, Apr. 8, 1997 (proceedings on the v-chip), quoted in Not in Front
of the Children, p. 196.
We do not have time today to go into additional detail about the
media effects research. I have, however, attached to this testimony a
``friend of the court'' brief on behalf of 33 media scholars in a
recent case challenging a law restricting minors' access to video games
containing violence. The brief explains in detail why, despite several
decades of studies, there is no credible evidence of a causative
relation between fantasy violence and the real thing.
As a 2000 study by our own Federal Trade Commission reported, no
firm conclusions about adverse effects can be drawn from media violence
research.\6\ Similarly, in 1999, the British medical journal The Lancet
criticized U.S. medical associations for falsely claiming that
thousands of studies had proven adverse effects. The editors wrote:
``it is inaccurate to imply that the published work strongly indicates
a causal link between virtual and actual violence.'' \7\
---------------------------------------------------------------------------
\6\ Federal Trade Comm'n, Marketing Entertainment Violence to
Children, Appendix A, ``A Review of Research on the Impact of Violence
in Entertainment Media'' (2000).
\7\ ``Guns, Lies, and Videotape,'' 354(9178) The Lancet 525 (1999).
---------------------------------------------------------------------------
No doubt, there is common-sense appeal to the notion that
impressionable viewers will imitate what they see onscreen. It may be
that some forms of media violence do have harmful effects, even though
social-science studies are unlikely to prove it. But to address these
concerns, education is far more effective than privately manufactured
filters which are marketed to families on the false premise that a
blunt and mechanical censorship tool will keep their children safe.
Ultimately, movie filters, like other forms of censorship, are a
distraction from the more difficult, and less sensational, work of
educating kids to be discriminating viewers, and fighting the real
causes of violence in society, including poverty, firearms, drugs,
alcohol, peer pressures, and domestic abuse.
ATTACHMENT
Mr. Smith. Ms. Cantor and Mr. McIntyre, let me address my
first question to you all, and obviously you disagree with Ms.
Heins's conclusions. But I want to make the point, and Ms.
Cantor, you did in your testimony, make a point about the
difference between cause and contribute. You made the point
that the sex and violence and profanity that children hear or
see doesn't necessarily cause but often contributes to behavior
along the same lines later on. Mr. McIntyre, you pointed
specifically to studies, current studies that indicate that
there are harmful effects on children as a result of seeing and
watching the violence and the sex and profanity.
Is this just a disagreement between current studies? Ms.
Heins says no study shows that. You all say multiple studies
have shown it for the last 30 years. What's the disconnect
here? Ms. Cantor?
Ms. Cantor. I'm not sure what research Ms. Heins is
referring to. A lot of the research she has referred to in
terms of the Bobo doll studies and the popping the balloon,
these were done--the very first studies done in the '60's. I
mean, studies now are much more sophisticated and they involve
a whole range of violent behaviors that are encouraged and
contributed to by media violence.
There are many people who have--there are some people who
have reviewed the literature who have, I would say, a different
perspective. One of the most frequently--one of the most
frequently quoted person on the other side is Jonathan
Freedman, who is at the University of Toronto. He wrote a book
which I reviewed, I have reviewed, and the review's on my
website. He was funded by the Motion Picture Association of
America in writing this book and he acknowledges that funding
in the preface of the book.
I mean, there are ways of looking at the research and
trying to minimize its significance, but the majority of
researchers who are independent and work at universities have
looked at this research in a very scientific way and have found
overwhelming evidence that media violence contributes to all of
these negative outcomes.
Also, if you're talking about nightmares and anxieties, the
causal consequences are very direct and immediate and obvious.
Mr. Smith. Thank you, Ms. Cantor.
Mr. McIntyre, do you agree with that?
Mr. McIntyre. Absolutely, sir. I think it's roughly
analogous to the research that's been done on cigarette smoking
and lung cancer, that there's not a proven direct one-to-one
relationship. If I smoke a cigarette, I'm not doomed to
immediately sprout lung cancer. But we know that the more
cigarettes I smoke, the more likely I become at risk for lung
cancer later on in life.
We see that with media violence, that certainly watching
one show may not be causal in the strict definition of that,
but for children that have repeated exposure to violence in any
capacity, the more they have that exposure to violence, the
more they learn it. It's really not complicated in terms of the
science. Kids learn what they see.
Mr. Smith. Thank you, Mr. McIntyre.
Ms. Heins. Might I add a note?
Mr. Smith. Ms. Heins, I'm going to recognize you in just a
minute. I have a question for Mr. Aho first, and that is that I
agree with what you consider to be the issue at hand and I do,
as well. I mentioned it in my opening statement, and that is
that parents should be able to choose what their children see
and hear, whether it's on a movie, whether it's on TV or
whatever it might be. You made the good point that you're not
tampering with the original product. You're skipping over.
You're muting. In my judgment, you're doing it electronically
and with high tech what parents did manually a generation ago.
I also want to make the point and make sure that you agree
with it that whatever skipping over is done, whatever muting is
done, and whether it's the violence in ``Saving Private Ryan''
or the sex in another movie or the profanity in another movie,
that's all irrelevant. It's the right of parents to delete or
skip over or mute whatever they want to for what they consider
to be the benefit of their children, isn't that the case?
Mr. Aho. Yes, I think that is the case, Mr. Chairman, and I
think that's consistent with first amendment. We certainly
think that there is a high demand from parents and families to
skip over content that they might find harmful to their
children, but it would be their right to skip over the entire
movie if they'd prefer.
Mr. Smith. Okay, good. Ms. Heins, a couple of questions for
you. Don't you think that parents should be able to choose what
their children see on TV?
Ms. Heins. Well, they certainly don't have to rent any
movie that they don't want their children to see.
Mr. Smith. No, but as I mentioned in my opening statement,
you can't monitor a child 24 hours a day. But do you support
the use of the V-chip, for example?
Ms. Heins. Well, no.
Mr. Smith. That's the most minor----
Ms. Heins. No, and putting aside legalities, the reason is
that it misleads parents. It is not really helpful to parents.
It is a quick fix that is not a fix at all.
Mr. Smith. But don't you think it's----
Ms. Heins. They're not really educating their children----
Mr. Smith. Ms. Heins, don't you----
Ms. Heins.--or protecting their children.
Mr. Smith. Don't you think--I appreciate your point about
educating children, but don't you think it's really up to the
parents to determine what their children see and hear?
Ms. Heins. Yes, although as children mature, obviously
parents don't have complete control.
Mr. Smith. No, no. Right.
Ms. Heins. Adolescents still have first amendment rights--
--
Mr. Smith. Would you favor a 5-year-old watching the
Playboy Channel, for example?
Ms. Heins. Personally, I don't think a 5-year-old would be
very interested in the Playboy Channel.
Mr. Smith. No, but would you----
Ms. Heins. And I don't think it will harm them. I don't
favor it, but I don't think that we need legislation----
Mr. Smith. Do you think a parent should be able to prevent
a child from watching the Playboy Channel?
Ms. Heins. Certainly, but the question becomes what kind of
legislation is appropriate, and one thing we have to understand
is that the tools are very blunt, filtering tools----
Mr. Smith. I understand that, and I'm glad you answered the
question the way you did.
One last quick question. This goes to an article you wrote
in 1998 which sounds to me like you didn't back then, at least,
think that this technology was bad. You said commercial
filtering products, they at least have the virtue of being
voluntary. That is, the private companies do the classifying.
Then you said, technology that can accommodate multiple self-
ratings or third-party ratings of Internet, parents can choose
a labeling system that mirrors their own views.
There wasn't anything negative about that context. Have you
changed your mind since 1998?
Ms. Heins. Boy. What's the article? [Laughter.]
Mr. Smith. I'm happy to. It's called ``Print Friendly
Versions, Screening Out Sex,'' by Marjorie Heins. I assume that
that is you.
Ms. Heins. That's me. I'm having trouble placing the
context. I mean----
Mr. Smith. Well, my time is up. I'll give you a copy of the
article.
Ms. Heins. Yes. Maybe it was the American Prospect article.
Mr. Smith. Whatever it was----
Ms. Heins. Well, the descriptive material you're quoting
sounds more or less accurate, but I think if you read the whole
article, you'll see that it's fundamentally----
Mr. Smith. The rest of the article is about the education,
not about the technology, but anyway, thank you, Ms. Heins.
The gentleman from California, Mr. Berman----
Ms. Heins. If I might just respond to a few points that----
Mr. Smith. I'll let Mr. Berman give you that opportunity.
Ms. Heins. Okay. Thanks.
Mr. Berman. Mr. Aho, I created a Berman filter and I took
the first and fourth paragraphs of your testimony and I didn't
alter it, I just pressed the mute button and I heard you say,
ClearPlay controls provide graphic violence, nudity, explicit
sex, and profanity. This is a choice that many families desire.
Many see it as beneficial to their children. We believe that it
is not in the best interests of society to eliminate this
choice for parents.
Words in your fourth paragraph, through the Berman filter,
came out as, ClearPlay does violate copyright laws. Indeed, it
does copy or alter the works themselves and it does use
trademarks. Trademark and copyright laws were intended to
deprive families of choices.
I don't think you like my edits and I don't think they
leave an accurate representation of the meaning of your
statement. Do you--can you understand why directors might
likewise oppose letting you alter the message of their movies?
If a ClearPlay competitor distributed the document-reading
utility specifically designed to cause your statement to appear
this way on a reader's computer screen, would you consider
suing them for trademark infringement, libel, or defamation?
And Mr. Chairman, I would like the edited copies of Mr.
Aho's statement to be a part of the record. [Laughter.]
Mr. Aho. Was that a question, Mr. Congressman?
Mr. Berman. Not particularly. [Laughter.]
But I noticed in one of the press articles that you decided
not to provide a filter for ``Saving Private Ryan.'' We know
this has very vivid, graphic scenes of violence in the opening
scenes related to the Normandy invasion, and you chose not to
market a filter for that movie. Did I understand that
correctly?
Mr. Aho. That's correct.
Mr. Berman. Why?
Mr. Aho. We make our filters according to consumer demand.
We have not heard from consumers, nor in our discussions with
consumers is there a demand to see ``Saving Private Ryan''
without the violence. I think most consumers would, based upon
the feedback that we get from them, that wasn't something they
wanted.
Mr. Berman. In other words, your only reason was it didn't
make economic sense to spend time on doing that because no one
would want to utilize filters of violence for that?
Mr. Aho. The primary driver of what filters we supply is
what parents want or what families want or what individuals
want.
Mr. Berman. Do you think there's anything wrong with
filters for--to knock out the violence of that Normandy
invasion from ``Saving Private Ryan''?
Mr. Aho. Well, no, I don't think that it violates anybody's
rights. I think if somebody wanted to watch a movie in their
home any way that they wanted to, no, I don't think that that's
wrong. I think that's within their rights.
Mr. Berman. I noticed in another one of the articles I read
that you put out a filter for ``As Good As It Gets,'' and that
there's a, I think I recall, there's a scene in there where two
fully-clothed males embrace and kiss each other and that you,
when called on, why did you filter that scene out? You
apologized you said you had the person who did that no longer
works for you and that you would no longer market that
particular filter. Is that a fair recollection of the article
that I read?
Mr. Aho. Congressman, no, I don't believe it is. In fact, I
think quite the opposite. I think that the scene that you're
referring to was a scene with the actors, Greg Kinnear and Cuba
Gooding, Jr., and they embraced and there was an affectionate
kiss and that was not filtered. I believe that that's the scene
that you're referring to. So no, I----
Mr. Berman. Shouldn't parents have a right to have that
filtered out?
Mr. Aho. Well, if they would choose to, they can.
Congressman, our job is not to provide an unlimited array of
filters for whatever anybody may prefer. What we try to provide
is a set of options that are most desired by parents. Now, that
may or may not be consistent with someone's personal interests.
You make the comment of editing my comments for your own
personal interest. Well, if you chose to do that in your home,
I think that that's your right. And if you chose to read it for
whatever purposes in the privacy of your home, that would be
your right. Now, we would not provide that filter to do that
kind of work because it's not our business and we don't think
that there's a marketplace demand for it.
Mr. Berman. But your competitors might.
Mr. Aho. I can't speak for any hypothetical----
Mr. Berman. No, they might want to filter your comments.
Mr. Aho. Well, certainly----
Mr. Berman. To serve their purposes.
Mr. Aho. Certainly some of your constituents might,
Congressman.
Mr. Berman. I guess my time has expired. I hope we'll have
a chance for a second round.
Mr. Smith. Thank you, Mr. Berman.
The gentleman from Florida, Mr. Keller, is recognized.
Mr. Keller. Thank you, Mr. Chairman.
Ms. Heins, all I can say is when I was 12 years old, I wish
you were my mom. [Laughter.]
I can watch Playboy as much as I want. You're one of the
cool moms, you know. [Laughter.]
Let me start with Mr. Aho. When Mr. Conyers was here, he
was saying Mr. Ay-ho. What's the----
Mr. Aho. It's Aho.
Mr. Keller. Usually when Conyers talks about Ay-ho, I think
he's talking about me usually, so I'm---- [Laughter.]
I want to clarify that.
Mr. Smith. We're going to filter that out.
Mr. Keller. Okay.
Mr. Smith. The gentleman continues to be recognized.
Mr. Keller. Okay. Let me go next, Mr. McIntyre, I'm
sympathetic to your concern about seeing these questionable
things, especially in the minds of young children, seeing
profanity and partial nudity and graphic violence. But just to
play devil's advocate, when I go to the Blockbuster, and I have
a 5-year-old and an 8-year-old, I look there and it says PG-13
or it says R and it would say, partial nudity or graphic
violence. Isn't that enough for parents to make the call? I
mean, I can--for example, with my 8-year-old, I can pretty well
make the decision. I'm not going to let him see any sex stuff
or nudity, but if it says ``hell'' or ``damn,'' you know, maybe
I might let him see it. I mean, isn't that enough for parents?
Mr. McIntyre. Well, it's certainly going to depend on the
parent and it has been our experience that the ratings that
have been applied for motion picture films have been, shall I
say, a bit fickle in their application. What one film may be
considered to have violence is not consistently applied to a
standard over a variety of films. Where PG-13 may give you a
certain amount of information, as a Psychological Association,
as a public health association, we want to know who's qualified
at that association to make the call that that is a picture
that is okay for someone that's at the 13-year-old
developmental level.
Mr. Keller. But, I mean, are there examples like where it
doesn't say ``nudity'' on the voluntary label there and then
you watch the movie and it, in fact, has nudity?
Mr. McIntyre. I am sure there is. However, I'm unprepared
to give specific examples.
Mr. Keller. All right. Mr. Aho, in terms of--I'm trying to
figure out what the strike zone of reasonableness is. I mean, I
can understand if I was the creator of ``Jaws'' and I'm the
screenwriter or director, I don't want you taking out the cool
``Jaws'' scene just because somebody might think it's violent.
I'm sympathetic to that side, and yet I understand the family
side, as well.
In terms of getting this in the strike zone, what if as a
reasonable compromise the studios say, well, here are the
airline versions of our movies, which are relatively clean. Why
don't you just follow those prescriptions and just skip over
those parts that we have deleted in the airline versions? Why
wouldn't that be a reasonable compromise for a company like
yours?
Mr. Aho. I think it's something that's worth exploring. One
of the challenges to really fully evaluate that is that the
airline--the standards for the airline versions are not
published and so it's difficult to evaluate whether they're
acceptable to a broad array of consumers or families or not.
Were they to be published and were we able to document them,
then I think I could better answer that question.
Mr. Keller. And I wish somebody from the movie industry was
here--I understand that we did have a chance to have studio
folks here and the Director's Guild, but some of them
declined--because it would seem to me, Mr. Aho, if I'm in the
business of making money as a big movie studio, maybe I would
want a clean version out at the Blockbuster so for parents like
me who might think the movie is great but they don't want to
show their kid an R movie, to have a PG version of it. I'd want
it out there. I'd want the airline version out there, mass
distributed. Why isn't that an industry practice?
Mr. Aho. Well, I think you'd have to speak to the industry
and ask them about that, but I concur with you, Congressman
Keller, that ultimately, this kind of benefit is good for the
industry. If it causes people to watch--more people to watch
more movies and enjoy them more, it seems to me that that can
only be beneficial to Hollywood and the studios, both
economically but also just from a relationship to the American
consumer and to families.
Mr. Keller. Thank you, Mr. Chairman. I'll yield back.
Mr. Smith. Thank you, Mr. Keller.
The gentlewoman from California, Ms. Lofgren, is recognized
for her questions.
Ms. Lofgren. Thank you, Mr. Chairman.
I'm interested, Mr. Aho, in the technology that ClearPlay
utilizes. In your testimony, you mention that ClearPlay does
not alter the underlying DVD. It merely, according to you,
skips and mutes over objectionable content. Technologically,
how does the product do that?
Mr. Aho. Well, we take certain events in the movie and
identify them and then the consumer chooses how they want to
experience the movie. Now, when it comes to--so when the DVD is
interpreting those bits and bytes and comes to one of those
frames, on a time-coded basis, it says ``mute from this frame
to that frame'' or ``skip from this one to that one''----
Ms. Lofgren. Okay.
Mr. Aho.--based upon the preferences that you've
established.
Ms. Lofgren. So you don't have to defeat the encryption
that is protecting these DVDs, for example, although I guess
theoretically the movie industry could go to the next phase of
encryption, which would then require you to defeat that scheme.
Mr. Aho. We have not ever nor ever contemplated any
decryption measures. That's not part of our business practice.
Ms. Lofgren. I know it isn't now, but depending on the
reaction to what you're doing, it could become necessary for
you to look at that.
Mr. Aho. I can't comment on that.
Ms. Lofgren. All right. Okay. You know, I am interested in
this. The focus of the hearing, I think, has been on the--on
children and the impact of sex and violence on children, which
is obviously of interest and concern to all of us and
especially those of us who are parents. But I really think
there's a broader issue here, which is artists are free to
create and express, but consumers who lawfully purchase or rent
are not required to look at all of it.
I mean, if you've got a DVD, you can't force the person to
not go to the kitchen and get a Coke during part of it or not
to take a trip to the restroom or to cover your eyes. I mean,
the fact that you have a right to express does not require
consumers to accept the full panoply of what has been created.
And it seems to me that the issue is much broader than
children. The issue is, what rights do consumers have to
utilize technology to not experience some of what they bought?
And it seems to me that once you've lawfully purchased
something, you have a right to watch some of it, all of it.
It's your choice. And if you use technology to assist you in
making that choice, it's still fundamentally your choice on
what to see. The fact that you can produce a book doesn't mean
I have to read the book, and it's the same thing with movies.
Isn't that really what ClearPlay is doing here?
Mr. Aho. Well, I think that's exactly right, in the same
way that if you own a CD and you choose to play it back in a
different order through your device, or if you buy a book and
choose to read only certain chapters of it. Yes, it is merely a
matter of us helping you to have a broad array of choices.
Ms. Lofgren. Now, it seems to me that a distinction could
be drawn between the agreement that is made--let's say you make
a movie and you're showing that movie at a movie theater and
charging admission. I mean, there is an implied, I think, deal
between the movie that you're going to show this artistic work
for sale and that you're holding it out to be what the artist
created. That is a little bit different than in the privacy of
my own home, I bought the book and I'm skipping chapter ten, or
I bought the DVD and I'm skipping the first 30 minutes. Do you
see that distinction?
Mr. Aho. No, I think it's a very important distinction. I
mean, let's understand what a consumer has to do. They have to
buy a DVD player with the ClearPlay feature on it and then they
have to go in and turn ClearPlay on. They have to put in a
password and turn it on and create their settings. It comes
with ClearPlay off. So someone has to want to do this and take
those overt measures to make the product work. It's not
something that could be confused with sort of a public
presentation of a movie that I sort of stumbled into and
misinterpreted.
Ms. Lofgren. Now, let me ask you just technologically how
your product differs from, say, TiVo, where you can also zap
out stuff that you don't want to see.
Mr. Aho. I'm not an expert on the TiVo technology, but TiVo
records----
Ms. Lofgren. Right.
Mr. Aho.--and I think that's probably the most fundamental
difference, is that as a person with a digital video recorder,
it actually makes a copy of the presentation or buffers it,
then for you to go back and make changes and take parts out.
Probably the most fundamental difference is that we do not
record. We do not make a copy. What ClearPlay does is simply
skip and mute over parts that you decide to omit.
Ms. Lofgren. I see my time has expired. Thank you, Mr.
Chairman.
Ms. Heins. I wonder if I could respond to your question in
a somewhat more----
Mr. Smith. The gentlewoman from California is recognized
for an additional minute, without objection. That will give Ms.
Heins a chance to respond.
Ms. Heins. Since Mr. Aho pretty much agreed with everything
you said, let me just suggest another response, and preface it
by saying that, in general, I completely agree with your view
that copyright law at this point has tipped too far in favor of
the copyright holders and legislation like the Digital
Millennium Copyright Act really does undermine fair use rights
of the public.
But in this instance, I would think--I would suggest that
the written testimony that's been submitted by the Director's
Guild, I think is very powerful because it gives examples of
movies such as ``Traffic,'' which is a very powerful movie
showing the devastation caused by drug addiction and the way in
which that movie has been distorted and mutilated.
``Schindler's List'' is another example, the editing, the
creation of essentially a new work which totally undermines and
downplays the atrocities of the Nazi era.
These are very powerful examples of interference with the
essence of creative works that I would say, even though we
agree that copyright balance in general has tipped too far in
favor of----
Ms. Lofgren. Well, let me ask you this----
Ms. Heins. In this instance, I think----
Ms. Lofgren. Because I do think if you, and I'm not
unsympathetic to the artists. I mean, they have produced a work
that is a whole in their mind, that is of value because it's of
a whole. But you also, I think, as the producer have to
understand that if you're going to provide that piece of work
and then hand it so that a consumer controls it in the privacy
of their own home, you're going to have a different
relationship with the viewer than you will in a theater. And if
you're that much of an artist, maybe you don't put it out on a
DVD. Maybe you show it only the way you want it to be held,
because you can't stop people from going to the bathroom and
skipping over that----
Ms. Heins. Right, or fast-forwarding through the
commercials----
Mr. Smith. The gentlewoman's time is expiring and, in fact,
has expired.
Before I recognize the gentleman from Virginia, without
objection, what I'd like to do is submit some written questions
\1\ to our panelists today from Congressman Cannon, who, as I
mentioned a while ago, has a strong interest in the subject.
He's not a Member of the Subcommittee but he is a Member of the
full Committee and would like for you all to respond to his
questions within 2 weeks, and we'll get them to you
immediately. Thank you.
---------------------------------------------------------------------------
\1\ The questions offered by Mr. Cannon were not submitted to the
witnesses as they were answered at another time during the hearing.
---------------------------------------------------------------------------
The gentleman from Virginia, Mr. Forbes, is recognized for
questions.
Mr. Forbes. Thank you, Mr. Chairman. Mr. Chairman, I wish
that Mr. Berman could give me the right to keep the media from
taking my statements out of context or that they would be
forced to print them in the context in which they were made.
But I can assure you they do not and they constantly proclaim
the right to cut and paste however they want.
It just seems that when we flip that right over to parents,
everybody gets excited, and today we've heard a debate about
whether objectionable material is good or bad for children, and
that's a good debate to have, but my real concern kind of
follows on what the gentlewoman from California was raising,
and that is what a parent's right is in their home in
determining what they want their children to see or not see.
Ms. Heins, since you seem to take a little different
perspective than our other witnesses and didn't have full time
to elaborate on some of your positions, I just want to see
where we draw the line in the sand and ask you, if you can, to
be concise because I'm limited on my time. But do you believe
that as a parent, I have the right in my home to skip
objectionable material on a DVD or that's coming in on the TV
if I feel that I don't want my children to see that? Do I have
that right.
Ms. Heins. Yes. I think the question here is really to what
extent can commercial manufacturers of technology distort a
work or interfere with----
Mr. Forbes. And Ms. Heins, they may be questions----
Ms. Heins.--intellectual freedom rights in order to----
Mr. Forbes. They may be questions somebody else will want
to ask, but I want to draw the line and just see where you are
on it. But you would agree that as a parent, I would have the
right to skip that objectionable material for my children?
Ms. Heins. Sure.
Mr. Forbes. Suppose that I wasn't going to be home and I
hired a 17-year-old babysitter to come over and watch my
children but I told her, I want you to skip this material when
it came on. Would I have the right to do that and would she
have the right to do that at my request?
Ms. Heins. I see I'm in the hands of an expert cross-
examiner.
Mr. Forbes. Just asking.
Ms. Heins. Yes.
Mr. Forbes. The third question I would ask is, most of the
kids that I know that are teenagers know far more about the
DVDs and the computers than I'll ever hope to know. Suppose I
bring the same student home and I ask them, will you program my
DVD for me and my church Sunday School class so that this
material will not come up? Would they have the right to do
that, not changing the disk, just programming my DVD.
Ms. Heins. For a church Sunday School class?
Mr. Forbes. For me or the church Sunday School class, the
community group, whatever that was there.
Ms. Heins. I think it might make a difference whether it's
for public or private viewing.
Mr. Forbes. Okay. Tell me why that would make a difference.
Ms. Heins. Because when it's for public viewing, you start
to encroach, I think, more on the artistic interests of the
creators, and so the balance starts to shift a little more----
Mr. Forbes. What if she said, I am----
Ms. Heins.--away from the privacy rights.
Mr. Forbes. What if she said, I have programmed this
particular chip, disk, whatever, so that you can put it in your
DVD and it will skip those materials automatically and you
don't have to be there to do it. Would that be appropriate for
her to do?
Ms. Heins. I think you get into some very difficult
questions of whether that is creation of a derivative work in
violation of copyright.
Mr. Forbes. Mr. Aho, would you respond to that? Is there
any difference there, if I'm not altering the material in any
capacity or any way.
Mr. Aho. Yes, I think there's a substantial difference. I
think the fact that a product is not altered has been--and I'm
not an expert on copyright law, but I think it's been a fairly
fundamental tenet of--I think the principle is fixation or
something, that to simply change your own personal viewing
experience, I think strikes me and apparently most Americans as
a fundamental right, like I would be offended if somebody told
me I could not do that.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Forbes.
The gentleman from Massachusetts, Mr. Delahunt, is
recognized for questions.
Mr. Delahunt. Thank you, Mr. Chairman. I find it an
interesting discussion, and I think there's unanimity. We all,
I think from the panel and I'm sure on this side of this panel
sitting at the dais, that the parent does have a right. I don't
think there's any contradiction.
Again, there's obviously such a thing as the maturing
process and the acquisition, if you will, of certain rights by
individuals as they mature. But clearly, for an immature child,
I don't think there's any question.
But I think what we're talking about here is, is this a
violation of trademark/copyright law, and I presume this is
what the litigation is about and that a court will make that
determination.
I think the questioning by Mr. Forbes was correct in the
sense of once the work leaves the home, I would--I can envision
a shifting in the balance, if you will, from privacy to a whole
different set of conditions which create, if you will, a more
stronger argument that the copyright itself is being
encroached.
What's the status of the litigation at this point in time?
I'm sure it's wending its way through the courts. Are you in a
circuit court of appeals or----
Mr. Aho. Are you asking me, Congressman?
Mr. Delahunt. Yes, I am.
Mr. Aho. We have filed for a, or made a motion for a
summary judgment. All the briefs from both sides have----
Mr. Delahunt. Where is it, anyhow?
Mr. Aho. It's in the Tenth Circuit.
Mr. Delahunt. It's in the circuit court.
Ms. Heins. It's in the district court.
Mr. Aho. Tenth District, I'm sorry.
Mr. Delahunt. It's in the Tenth District. So this--I think
the Committee will find it interesting to observe the progress
of the litigation, and clearly at some point in time, I would
anticipate whether it's you, sir, or the plaintiffs in the
case, there would be a decision that we can all review.
Getting back to the technology, maybe I just don't quite
understand it, but it's ClearChannel that makes the decision as
to----
Mr. Aho. ClearPlay.
Mr. Delahunt. I'm sorry?
Mr. Aho. ClearPlay.
Mr. Delahunt. ClearPlay, ClearChannel---- [Laughter.]
I'm lucky to use the remote control, so, I mean, this is
all way over my----
Mr. Berman. ClearPlay isn't quite as dominant yet in this
market as ClearChannel is in their market.
Mr. Aho. You're correct, Congressman.
Mr. Delahunt. ClearPlay. You identify those scenes.
ClearPlay identifies the scenes denoting violence, sex,
whatever, am I correct?
Mr. Aho. Yes, that's correct. We identify them and then the
consumer chooses----
Mr. Delahunt. How do you go about identifying them?
Mr. Aho. I think it would be, Congressman, in the same sort
of way that when someone approached it to make an airline
version or a television version would do so. They would sit
down and look at the film. They would know what standards----
Mr. Delahunt. I mean, do you have a team that do this?
Mr. Aho. Yes.
Mr. Delahunt. So two or three people might sit down and
they--for example, Congressman Lofgren talked, or someone
alluded to ``Schindler's List.'' Now, there's nudity in
``Schindler's List,'' but it's clearly a very important piece
of that movie, not because of the sexual nature of it but
because of the degradation of humanity there. I mean, how--
what's the conversation? How do you make those kinds of
decisions?
Mr. Aho. Well, I can't comment on ``Schindler's List.'' We
have not done a filter for that movie.
Mr. Delahunt. You've seen the movie, though, I presume.
Mr. Aho. I have seen the movie, yes. But I will tell you
that, overall, it's a process that starts, again, like an
airline version or like a TV version. Somebody sits down----
Mr. Delahunt. Is it one person or two people or----
Mr. Aho. Well, we have a team of people and----
Mr. Delahunt. Who are these people? [Laughter.]
I mean----
Mr. Aho. I'm not sure if you're looking for--are you
looking for their names?
Mr. Delahunt. No. I'm looking for--I mean, are they
sociologists? Are they psychologists? Do they have any--or are
they just citizens like----
Mr. Aho. They're ClearPlay----
Mr. Delahunt.--people sitting on this side of the dais?
Mr. Aho. They're ClearPlay employees that are----
Mr. Delahunt. But do they have any--so they just operate on
the basis of their own personal taste, is that----
Mr. Aho. No, not at all. I think that would be a
mischaracterization. Our standards are published, unlike, I
might mention, the MPA standards or the airline version
standards or TV, cable or network. We publish our standards so
that consumers can look and make the choice for themselves.
So it's not arbitrary. It's not personal. We have standards
that we attempt to make as specific as possible----
Mr. Delahunt. For example, in terms of sexual content, I
mean, just the display of a woman's breasts, let's say. Is that
included in part of the standard?
Mr. Aho. That would be in the nudity filter, yes.
Mr. Delahunt. And so let me just--can I just have another
minute, Mr. Chairman? He's not paying any attention, so we'll
just go on. [Laughter.]
I got the minute.
Mr. Smith. Thank you, Mr. Delahunt.
The gentleman from---- [Laughter.]
I'm sorry.
Mr. Delahunt. See? [Laughter.]
Give me just another minute.
Mr. Smith. I was talking to my Ranking Member here. I
apologize. What was the question?
Mr. Delahunt. I just need another minute. I just want to--
--
Mr. Smith. Without objection, the individual is recognized
for another minute.
Mr. Delahunt. As a parent, I hear what you're saying about
the nudity, for example. But in ``Schindler's List,'' if I had
a 10- or 11-year-old, I might reach a different decision as to
nudity in a, say, in a more risque or less serious movie. This
is the problem that I'm dealing with in terms of how you make
those kind of decisions, or is it just simply any kind of
nudity? Do you see my--as far as how you create your standard?
Mr. Aho. No, I--but I think those are the same challenges,
Congressman, that everyone that creates an airline version
creates. I think it's the same challenges that the MPA goes
through when they try to determine, does this make it an R or a
PG-13? It is difficult to specifically define all the points on
that line, but you do your best based upon your standards.
Now, I can't comment on ``Schindler's List'' because we
don't--we have not created a filter for that movie. But I think
that from a consumer behavior standpoint, it's probably the
same nature of the same decision that a parent might make when
they choose not to see a movie in the theater, but when it
comes on on television, they may choose to see it. Is it the
same experience? No, but it's an experience that at this point
they choose and they find preferable.
Mr. Smith. The gentleman's second time has expired.
The gentleman from Texas, Mr. Carter, is recognized for his
questions.
Mr. Carter. Mr. Aho, as I understand it, you're producing a
tool----
Mr. Aho. I'm sorry?
Mr. Carter. You're producing an electronic tool of some
sort that allows a parent or any person that wants to to insert
your tool and, without altering the copyrighted material
whatsoever, it just allows them to stop and start and eliminate
certain parts of it that you, as a parent or the purchaser,
choose to have eliminated in your free will of choice, right?
Mr. Aho. Yes, to skip and mute.
Mr. Carter. So if we're going to say that a person
shouldn't be able to be entitled to have those tools, then how
far are we going to expand this? Does the ``stop'' button have
to go off of my VCR? Does the ``fast-forward'' have to be taken
off because I might skip some copyrighted material by using
some of those things in my home because I don't want my kids to
watch it?
That, to me, I think--I wonder what the argument is here.
If I choose to make ``Schindler's List'' into musical comedy in
my own home and I have the electronic ability to do so and it's
only for the viewing of my family, how have I harmed the
copyright if it's not being published to anybody but myself?
Mr. Aho. I think that that's a--I think that that's a good
analogy. Another one would be, say, for instance, using the
picture-in-picture button on my television. I've certainly
altered the visual representation of what I'm watching, but if
I choose to watch the NBA playoffs while I'm watching a movie,
that would be my right and not something the director would
have, say, control or jurisdiction or rights.
Mr. Carter. We've actually seen, at least I think I've seen
on very humorous shows like the old ``Laugh In'' show and some
of those shows like that where they've actually taken movie
clips and put them in inappropriately to make them bizarre
parts of an overall performance that doesn't fit the original
context of that movie and nobody seems to get real upset about
that. And yet it seems to me people are getting upset what a
parent chooses to do in their opinion as to what's good for
their child.
I personally think that I would never take a historical
film where the violence fit the historical pattern of the
history and take the violence out because it's part of the
history and I think we ought to have accurate history
presented.
An interesting thing happened in our family. My wife is
from the Netherlands. The first time we went to a movie in the
United States, we went to see ``The Good, the Bad, and the
Ugly,'' and she was absolutely appalled that there were
children under the age of 18 watching that movie because of the
violence. I'm from Texas. I thought, what's the problem?
[Laughter.]
But the movie ``Ten,'' which had a lot of sexual--not--in
today's standards, very mild, but in those days, pretty sexual
content, I would have thought you wouldn't bring your child to
that movie and my wife saw nothing wrong with that at all
because Holland has a very liberal view of nudity and I was
from Texas and we didn't in 1968, okay.
But that had to be resolved by us as parents when we have
children and decide how we would filter out those things, and
that's the tools you offer to us as parents, right?
Mr. Aho. That's correct. It is a tool and a set of choices
that you make individually.
Mr. Carter. Ms. Heins, let me ask you now. And you think
that those tools should be eliminated, I shouldn't have the
ability to have those tools?
Ms. Heins. Well, let me just address the difference between
the parody example you gave, which would be a fair use because
it's transformative, and a filter which is not creative, it's
not transformative, it's not trying to make a comment on the
work. It's simply distorting and mutilating the work.
Does it violate copyright law? As Congressman Delahunt
indicated, the Federal District Court will soon decide that. Is
it good as a matter of policy? No. Do parents have the right to
do it? Yes. Do for-profit corporations have the right to
provide a range of technologies to enable parents to not make
their own judgments, but essentially adopt the judgments of the
filtering company? That's the question before the court.
But what I would say is, should the court decide this is a
violation of copyright, that it would not be a great idea for
Congress to step in and start rewriting copyright law in order
to support and encourage and legitimize what is a very crude
tool, a tool that I think is misguided in terms of the
education of children.
Mr. Carter. As long as it takes your view. Of course, if it
takes these folks' view, then you're opposed to it. But if the
tool would turn around and take your view, that would be a good
tool.
Ms. Heins. We'll, I'm here to try to persuade you.
Mr. Carter. And the truth is, what's the Government's
business in going in and getting involved in this thing? The
Government doesn't have any business getting involved in this
thing. This is between parents and their children and a man
offers a tool.
Ms. Heins. The case is between the creative community and
some manufacturers who decided to play on and exacerbate
parental concerns and sell them a product which I don't think
is a very good product.
Mr. Carter. Well, I was in that case business for 20 years
and there's a lot more to it than just the case, but I won't go
into that today. Thank you.
Mr. Smith. Thank you, Mr. Carter.
The gentleman from Florida, Mr. Wexler, is recognized for
questions.
Mr. Wexler. Thank you, Mr. Chairman. In listening to the
comments as it relates to the notion of parental choice, it
seems to me to a certain degree that argument is exaggerated in
this context in that the ultimate choice is for a parent to
permit his or her child to watch the movie in the first place.
What your technology permits is not parental choice. It really
just provides yet an additional category of choice, which is a
parent then has the choice, or greater choice, to permit their
child to view a movie which they otherwise would have found
objectionable in a different or altered form.
I'm curious, if we are to assume that third party editing
and the technology that goes with it is permissible, I assume
the ``Nightly News,'' as violent as it is, would be equally
subject to such editing, wouldn't it?
Mr. Aho. Congressman, ClearPlay only works with pre-
recorded movies, and so the ``Nightly News'' or really any
television broadcasting would not be something that we would
deal with.
Mr. Wexler. That's the technology today in terms of pre-
recorded. But the principle is the same, is it not? ``Nightly
News'' is too violent for my 11-year-old son to watch. Strike
it out.
Mr. Aho. I think if you're looking for an analogy, I would
say that it is like at times when I've seen the news where
there's been a warning and someone has said, we're going to
show something very graphic now. You may want to modify your
decision because of this part of the ``Nightly News.'' And it
seems to me that that's roughly analogous. That's what we're
doing. We're saying, there's going to be something in this
movie that you may choose not to watch.
Mr. Wexler. No, actually, though, I think the analogy--that
analogy applies to the rating that the movie has that warns the
parent beforehand and says, there is graphic violence or
explicit sexual behavior in the movie. You may not want your
child to watch it.
Now you're imposing then yet another factor, which is
regardless of the warning, I'm now going to change the work so
as to provide it in a different form.
Today's Washington Post, above the fold on the front page,
has a fairly graphic picture of a Palestinian man carrying a
Palestinian child who is very graphically injured. God knows
how many tens of thousands of children are going to see that
picture today. I presume that as the technology advances, it
would be, under the same principle, fair to strike out the
element of blood or the facial expressions of anger or pain and
just have a picture of the Palestinian man carrying a
Palestinian child who was unhurt. Why not?
Mr. Aho. Is that a question for me?
Mr. Wexler. I guess so. Please. I mean, isn't it the same
principle? Why is it different? This is your view of what the
8-year-old or the 12-year-old should be looking at.
Mr. Aho. I really think that probably the word ``impose''
is not a good one, because we certainly don't impose any
decisions upon anybody, nor, I think, do we--I think it would
be incorrect to suggest that we suggest to someone what their
world view ought to be or what they ought to watch.
There's over 16,000 different settings with ClearPlay. You
can watch it the way that you would like. You can create the
setting that you're most comfortable with. Again, I think it's
probably analogous to you may not want to watching something
when it came out in the movie, or in the theater, but you want
to watch it when it comes out on television. Why is that?
Because it's more consistent with your standards.
You've made a choice. You've been given an option and
you've made a choice. Was it the networks that told you that
this was the way you ought to watch a movie? No. No. But you
understand that the networks have a different set of standards
and you're more comfortable with it and so you make that choice
for your family. You may say to your kids, I don't want you to
watch ``The Patriot'' or another movie in the theaters because
of some of the, say, particularly violent content, but I'm okay
with you watching it, say, on television.
Mr. Wexler. Under what authority do you argue that you or
anyone else has the right to take this artistic work and alter
it in the fashion in which you are altering it?
Mr. Aho. Well, I don't think we really alter anything. We
never change the DVD. We never--we actually never even touch
the DVD. So I think it would probably not be accurate to say
that we alter any artistic work at all.
Mr. Smith. The gentleman's time has expired.
Mr. Wexler. Thank you.
Mr. Smith. Thank you, Mr. Wexler.
Without objection, the gentleman from California, Mr.
Berman, will be recognized for one additional minute.
Mr. Berman. I have a number of questions and I'd like
permission to submit them to the panel, actually all of them.
There are many interesting issues that we've, that I haven't,
at least, had a chance to explore the way I'd like to.
I do want to make just a couple of discombobulated
comments. There is a real benefit to the technology in
facilitating parental choice. I see that. The question is to
what extent should the creators be involved in the decisions?
Mr. Wexler, ratings help to promote parental choice.
Decisions by studios in consultation with the directors and
others producing airline versions and television versions help
to facilitate parental choice. The question is whether you, you
and a for-profit company, should be able to market things not
involving them by getting some change in the law.
And this distinction between we don't alter the product
because you have a filtering that comes--that doesn't touch the
film versus somebody who is not able to buy the DVD and is
still stuck with the VHS format, and that somehow that person--
the underlying principle, if it's a fair principle, it should
apply to all things. It shouldn't just provide the people with
the newest technologies. You should be able to get into the VHS
tape and make the alterations to eliminate the offensive
scenes.
I don't buy your answer that you didn't do ``Schindler's
List'' or ``Saving Private Ryan'' because there's not a market.
I believe there was something in your decision making that
thought, you know something? If they're going to see that
movie, they should see the whole thing, or we're not going to
try and sustain the argument that that should be--someone else
who's your competitor won't make that decision.
And if you're going to push this through legislatively and
technology neutral and not--somebody else is going to say, I'm
going to disrobe the female actresses or make Laura Croft into
a topless video game or go the other way to give parents the
choice of letting Rick Keller's ideal mom show him a different
version than the creator actually intended to be shown in that
video game.
So yes, working this technology through with the
consultations and involvement of the people who created the
original product to facilitate parental choice seems good.
Ramming through a piece of legislation that says, Steven
Spielberg can't make a decision that he wants ``Schindler's
List'' to be seen, this is what his vision was, and if you want
to see a movie about the Holocaust or about concentration camps
or Nazi war crimes and you don't like the scenes in that, go
see ``Judgment at Nuremberg'' or any of the other movies that
don't portray things so graphically for that teaching lesson.
But if you're going to depict somebody else's creation, get
them involved in the ways in which you're going to depict it,
the process.
Mr. Smith. The gentleman's time has expired.
We're going to move on, but I think Mr. Aho has already
responded to a couple of points you made, Mr. Berman. They
don't change the format. They don't clothe people who are nude.
They are simply muting and skipping over, which is an entirely
different proposition from some of the examples that you gave.
We're not going to debate it now----
Mr. Berman. Well, let me just say----
Mr. Smith. The gentleman's time has expired.
Mr. Berman. No, but let me just add, it's a distinction
without a difference. In other words----
Mr. Smith. Mr. Berman, it's a big difference to me. The
gentlewoman from California, Ms. Waters, is recognized for her
questions.
Ms. Waters. I yield to the gentleman one additional minute.
Mr. Berman. My only point is, because you can do what
you're doing without touching the DVD or breaking the
encryption code, as apparently one of your competitors does do,
may be a difference in terms of copyright law, I don't know and
the courts will determine that. But the underlying
philosophical distinction isn't very compelling to me. If you
can do this, why shouldn't they be able to do that? And if you
can eliminate certain scenes and change the method, what's the
distinction really between eliminating those scenes or adding
your own scenes?
What's the underlying philosophical thing that says, in
order to facilitate parental choice, I can only go this far,
but I can't go this far? I just--I'm not sure I see something
there that in its----
Mr. Smith. Mr. Aho, would you like to respond?
Mr. Aho. Well, I think there's a big difference both
philosophically and legally, probably legally, in subtractive
versus additive content. I think consumers certainly----
Mr. Berman. I totally twisted your statement around by just
taking what you said and not adding a word and giving it an
opposite meaning from what you intended. Was that a big
difference?
Mr. Aho. Congressman, I think there's a point that needs to
be made here and that's that we create these sort of
hypotheticals of things that could be done to, say, mangle a
movie or change its intent. If, in fact, ClearPlay is in the
business of destroying movies and of changing the experience in
such a way so that people are baffled by it or that it's a very
different film, I think there won't be a demand for the
product. People don't want that.
Ms. Waters. Okay, reclaiming my time---- [Laughter.]
Mr. Smith. The gentlewoman reclaims her time.
Ms. Waters. I'm over in the Financial Services Committee,
but I was anxious to break away--we have a markup going on--to
come over because I'm basically torn on this issue and I'm
usually pretty clear in my defense of freedom of speech and
protection of intellectual properties, et cetera.
I'm looking for examples of ways by which we alter products
in our society that would be the same as or synonymous to
what's being described here. I know that we have equipment that
we buy that we change, we alter to make it more convenient for
us to use in different ways, but what's different about this
and changes that we make in other ways with other products? Is
it the altering of the intellectual property itself to distort
the intent of the producer? Is that what the real problem is
here? I don't know who can answer this, anybody.
Ms. Heins. I would say yes, that there is a big difference
between altering a toaster and altering a work of art.
Ms. Waters. Where is Jack Valenti? He could make this
plainer. Where is Jack? Is he testifying today? [Laughter.]
No? Yes, ma'am.
Ms. Cantor. I was trying to think about that myself earlier
and I thought, what if somebody is selling art, original works
of art, and saying this is the frame that was suggested by the
artist, but here's an--I think actually you might consider that
it looks better if the glass is tinted blue. So I'm going to
give you a choice of buying it with the original frame or a
frame with the glass tinted blue, making it clear which one the
artist created and which--I don't know, would that violate the
artist's rights?
Mr. Aho. Can I come up with another example?
Ms. Heins. No, but if you started cutting up the picture,
it would.
Ms. Cantor. Well, we're not cutting up. It's not analogous
to cutting up a picture.
Ms. Heins. Well, I----
Ms. Cantor. Supposing you had a frame that actually came
into the picture a little bit and cut off a corner and you
said, I think this----
Ms. Waters. Once you bought the picture, you could change
the frame. You could alter the frame----
Ms. Cantor. Absolutely.
Ms. Waters.--you could get a different color frame. We do
it all the time.
Ms. Cantor. Right.
Mr. Aho. Further, we're not talking about an original,
we're talking about buying an Andy Warhol poster and maybe
resizing it to fit the frame that you want. I mean, this is----
Ms. Waters. No, we're talking about an original. I buy an
original, I can do what I want to do with it, including destroy
it.
Ms. Heins. There is actually an Artists' Rights Act. There
are limited moral rights in this country and they apply to
original works of visual art.
Ms. Waters. I beg your pardon?
Ms. Heins. There are some--there is some protection in
Federal law and in some State law in the United States similar
to the European conception of moral rights, where even if you
own an original work of art, it does not mean you can destroy
it or mutilate it, unlike----
Ms. Waters. I've not seen that protection in law.
Ms. Cantor. But this is a copy we're talking about here.
We're talking about a copy.
Ms. Waters. Okay. Are you talking about copies? Yes?
Mr. Aho. I was just going to comment that you may have that
right on the original, but that would be a significant
extension to what we're suggesting here, which is that the
original is never altered. Any one of millions of Americans can
still see the movie as it was released in the theater, as it
was released on DVD. This is simply an alteration in your
viewing experience in your home.
Ms. Waters. Why shouldn't the owner of that art be able to
sell you altered versions of it just like I think, when I read
the information like they do on the airplane, where you get
altered versions of the original movie, but they are in control
of the product.
Mr. Aho. They do have that right, Congresswoman. I think--I
believe that--I mean, of course, these are negotiated rights
between directors and studios and all movies are different, but
certainly the copyright holders would have those rights.
Ms. Waters. Thank you.
Mr. Smith. The gentlewoman's time has expired.
I thank all the Members for their interest and attendance
today and thank the panelists for their very informative
testimony, as well. This has been interesting.
I would like to insert in the record written statements
provided by Taylor Hackford on behalf of the Director's Guild
of America; the American Medical Association; and Rick Bray,
Chief Executive Officer, Principle Solutions, Inc. and TVG
Vision, LLC.
[The prepared statement of Mr. Hackford follows:]
Prepared Statement of Taylor Hackford
My name is Taylor Hackford and I am submitting this statement on
behalf of the Directors Guild of America (DGA), of which I am a
National Board member and the Co-Chair of the DGA Social Responsibility
Task Force.
Founded in 1936 by the most prominent directors of the period, the
Directors Guild today represents over 12,800 directors and members of
the directorial team who work in feature film, television, commercials,
documentaries and news. The DGA's mission is to protect the creative
and economic rights of directors and the directorial team--working to
advance our artistic freedom and ensure fair compensation for our work.
I submit this statement as a filmmaker, a parent, and a
representative of the directors who create the movies that many members
of this subcommittee have seen and I hope enjoyed. We want to share
with the subcommittee our great concern about giving someone the legal
ability to alter, in any way they choose, for any purpose, and for
profit, the content of a film that we have made, which carries our
names, and which is associated with one of us. When this is done
without directors' knowledge or authorization, and without the
knowledge or authorizations of the studios that own the copyrights in
these films, consumers are misled and the artistic and economic rights
of directors are harmed.
Today there are a plethora of companies making multiple
unauthorized versions of the same motion pictures based on criteria
ranging from ``sanitization'' to thematic mutilation. These companies
are in the business of making a profit from marketing these
unauthorized, edited versions created by our members. Depending on the
action of this subcommittee, what is now occurring with respect to
motion pictures could be extended to books, music, magazines,
newspapers, and all other forms of speech. And the unimpeded,
unauthorized editing could have consequences far beyond what you
envision today. What is at stake is the ability of any author, creator,
and copyright owner to protect the content associated with their name.
Legislation simply opens the door to all of this, but it cannot
regulate the consequences.
THE ROLE OF THE DIRECTOR IN THE FILMMAKING PROCESS
Film is truly an indigenous American art form, and the work of
filmmakers--in collaboration with other creative artists in our
industry--has documented, reflected upon, and portrayed the American
experience for almost 100 years. With no disrespect to other great art
forms, we think it is fair to say that motion pictures played a very
unique role in popular culture during the 20th Century, and they
continue to be enjoyed daily by billions of people around the world.
Those of us who work in film feel fortunate and privileged to earn our
living contributing our talents to a craft we love.
The films we directors create tell the story of people's lives, be
they in the present or the past, in our country or in a foreign
culture. In telling our stories--and creating accurate depictions of
life on a reel of film--filmmakers seek to capture not only who we are,
but also who we want to be. Directors may not always hit the mark with
every film but we try to seek the truth in the story we are telling,
whether as a serious drama or a lighthearted comedy. We create pictures
to make people laugh, cry or be afraid because that is what the
audience wants.
The process that goes into making a film is understandably unknown
to those outside our industry. During the making of a film, directors
are actually running a massive project, involving hundreds of people
and a myriad of details and decisions that have to be made each day to
keep the production on schedule and on budget. Whether it is the
crafting of a single scene or the visual creation of a character from
the written page, the director is always working to create a compelling
narrative that shapes the story.
Directors have to reflect on the realities of life and determine
if, how, and in what way they might put them into their film. The
director, and his or her collaborators--the writer, the actor, the
cinematographer, the art director, and the film editor--make these
decisions constantly. Choices are made before the production begins,
during shooting, and in the post-production room where the film is
edited.
Despite this collaborative process, it is the director who is
associated with the film in the end. The director receives the most
prominent, final credit in a film, indicating to the audience that the
film was ``Directed By'' him or her. But, as the members of this
Subcommittee are aware, under American law, directors do not have a
copyright interest in the films they create. The copyright is held by
the production company or studio, and the director's contribution is a
``work for hire.''
Instead, the rights and interests of the director in a film are
protected by a collective bargaining agreement between the DGA and the
studios and production companies. That collective bargaining
agreement--along with the specific director services agreement
negotiated for each film--protects the creative rights of directors,
including the director's right to make the first edit or ``cut'' of a
film that is delivered to the studios:
The Director shall be responsible for the presentation of his
or her cut of the motion picture (herein referred to as the
``Director's Cut'') and it is understood that his or her
assignment is not complete until he or she has presented the
Director's Cut to the Employer. . . .
[N]o one other than the Director may supervise the editing of
the first cut of the film following completion of the editor's
assembly. . . .
No one shall be allowed to interfere with the Director of the
film during the period of the Director's Cut.
(DGA Basic Agreement, Sec. Sec. 7-501, 7-504).
In addition, many directors receive even greater control over the
editing of their motion pictures, and earn the much-coveted position of
being a ``final cut'' director. These directors, through their creative
and commercial success, earn the right to have the final say over the
form of their film, by making the final edit of their movies. These
much sought-after rights are bargained for separately by individual
directors who achieve this status.
Directors specifically plan for the fact that their movies may be
shown outside the intended theatrical context. Directors shoot and
prepare alternate footage and audio to create alternative versions
which remain true to each director's vision, but which will fit the
needs of the particular airline or broadcast network. Directors do this
because they understand that airline and television versions are often
viewed by audiences not originally intended for the theatrical version.
We want to make sure this Subcommittee understands how motion
pictures are edited for television or airline viewing. That too is
specifically governed by the DGA's collective bargaining agreement,
which provides directors with the right to edit movies for television
and airline versions (when the studio is doing the editing), and in all
other cases, requires that the director be consulted on the editing of
films for television or airline use.
Directors put their full vision and often years of hard work into
the creation of a film. That film is not only their vision, but it
carries their name and reflects on their reputation. Their ability to
have their names used to identify and market their films is of great
economic consequence. No matter how many warnings or disclaimers
someone puts on the film, it still has the director's name on it. So
directors have great passion about protecting their work, which is
their signature and brand identification, against unauthorized editing,
and an abiding belief that contracts and the law will prevent others
from illegally profiting from or altering their work.
UNAUTHORIZED EDITING OF MOTION PICTURES DOES GREAT DAMAGE TO THE
CREATIVE RIGHTS AND REPUTATIONS OF DIRECTORS
Because directors and their names are inextricably and prominently
linked with the movies they direct, the conduct of companies that sell
unauthorized software filters or edited versions of movies is
particularly harmful to directors. These companies are undoing,
undermining and superseding the artistic work in which a director has
invested a great deal of effort, and become closely associated by the
public. Removing scenes and dialogue from films interferes with the
story a director is trying to tell, and in so doing, can take away from
the narrative structure and overall vision that audiences associate
with a director. This editing can make movies into nonsense, completely
changing their meaning. The director's reputation is likely to suffer
when people viewing the film may believe they are watching a version of
the film that has been edited and authorized for release by the
director.
Currently there are at least ten companies in this business--three
of which are electronic editing companies, undoubtedly with more to
come. Together they are today making thousands of unauthorized versions
of movies. So for example, there may be multiple unauthorized versions
of my 2000 film Proof of Life.
To illustrate the problem, here are a few concrete examples of what
these products have done to directors' artistic visions and the power
of the story directors seek to tell.
Proof of Life, starring Meg Ryan and Russell Crowe, told the story
of an American oil executive who was kidnapped for ransom by insurgents
in a fictional South American country. At its core, this movie centered
on the kidnapping, the struggles of the kidnapped executive, and the
impact of the event on his wife (Ryan) and his would-be rescuer
(Crowe).
Despite the utter centrality of the kidnapping to the story, I was
amazed to learn that at least one company, without any authorization or
contractual right to alter the film, removed the entire kidnapping
scene when it created a filter specifically designed to alter the
viewing of this film. It is important to note that this scene was shown
on television and airline versions virtually in its entirety, with only
eleven seconds removed. These types of minor, authorized edits are
acceptable, because, as the film's director, I agreed to them for a
particular use.
In this case, the company had no authorization from the studio or
me, yet they unilaterally removed the entire kidnapping scene and
altered my film in a way that was extremely harmful to the basic
telling of the story. It also was harmful to the way viewers perceive
me as a director. This unauthorized version may lead viewers to believe
Taylor Hackford directs movies that just don't make sense. Let me
explain why.
First, the subject of kidnapping for ransom is pivotal to the film,
and as the film's director, I went to great lengths to portray it as
realistically as possible. In the theatrical, airline, and television
version of the film, the audience sees how the abduction was carried
out, and witnesses the organizational skill of the abductors and the
depth of their cruelty. All of these essential details, and the overall
tension and desperation of the scene, have been ripped from the film.
Second, the kidnapping scene, which takes place early in the movie,
establishes the foundation for the entire story that follows, and is
crucial to the overall dramatic purposes of the film. This scene
enables the audience to empathize with an ordinary person, who is
driving to work thinking about everyday problems on the job and at
home. This ``everyman'' suddenly is wrenched from his daily life and
plunged into a nightmare that he had never imagined possible. Removing
this scene in its entirety leaves the audience unable to understand the
context and meaning of the story, and renders the audience unable to
connect emotionally to the character's plight. In short, removing the
early kidnapping scene, from a movie about a kidnapping, changes the
basic nature of the movie.
One of the film editing parties has created its own version of
Steven Soderbergh's Oscar-winning film Traffic. That company has cut a
number of scenes that are critical to this film about the pervasiveness
of drugs across our society, and how the use and trafficking of drugs
cuts through all classes of society. In one pivotal scene, the daughter
of the White House Drug Czar (played by Michael Douglas) engages in
drug use with other wealthy teens after school. In particular, her
boyfriend exposes her to the smoking or ``freebasing'' of cocaine. In
editing Mr. Soderbergh's film without authorization, the company
removed key portions of this scene, which show Douglas's daughter
beginning what will become a freefall into the abyss of drug abuse. Not
only does this render much of the movie unintelligible, it completely
undermines one of the key themes of the movie: That the highest-ranking
law enforcement official in the war on drugs is wholly unaware that his
daughter is becoming a drug addict. In addition, the company edits out
numerous harsh realities associated with drug use in America;
highlighting these realities is key to the heart of Mr. Soderbergh's
film about the drug problem in America. The unauthorized editing of
this movie minimizes the horrors of drug abuse.
Norman Jewison's highly acclaimed film The Hurricane is based on
the true life story of Rubin ``Hurricane'' Carter, an African-American
boxer wrongly imprisoned for murder, and his struggle to prove his
innocence. The theme of racism and its impact on Carter's life is a
core concept in the film, which is made clear in the conclusion of the
film when a Federal judge frees Carter after twenty-two years of
incarceration on the basis that ``the conviction was predicated on an
appeal to racism rather than reason . . .''
One of the software filtering companies has its own version of The
Hurricane, which skips and mutes core storyline content, presumably
because of the strong racial overtones. For example, in an early scene,
a scared and stuttering eleven-year-old Rubin Carter is being
interrogated by two white police officers who, during the process of
the interrogation, utter racist remarks toward the young boy. The
company removes these lines from the interrogation scene. However, it
is through this racist and threatening language that the audience
connects with the intimidation that the young Carter must feel and the
racism he is encountering from the law enforcement authorities.
Moreover, one of these officers is central to the scheme to wrongfully
convict Carter years later. With the racist and threatening comments of
the police officer removed, the audience is unable to connect
emotionally to Carter's terrifying encounter with the racist officer
and power structure. As such, their role in the wrongful conviction and
incarceration of Carter is diminished. Much of the meaning, and
historical accuracy of the film are therefore lost.
Yet another software filtering company has created an altered
version of the movie LA. Confidential, which received two Academy Award
nominations in 1997: Best Picture and Best Director. This edited
version of L.A. Confidential is so choppy and discontinuous that the
movie is virtually unwatchable. In any film, discontinuities of this
sort which are created by these unauthorized edits would undermine an
audience's ability to suspend disbelief, and suggests incompetence by
the film-maker. In the instance of L.A. Confidential, the damage goes
to the core of the film's subject matter. L.A. Confidential is a period
piece set in the 1950s that revolves around corruption in the Los
Angeles Police Department, set against the background of life in
classical Hollywood. Because of the period nature of the film and the
subject matter associated with Hollywood, director Curtis Hanson
intentionally created a film that was in the spirit of classical
Hollywood film--i.e., seamlessly edited and stylistically impeccable.
The film's content is embodied in its aesthetic and so too is the
reputation of its director. The application of the software filter to
the playback of LA. Confidential creates a continuous series of
jittery, strobe-like, edits that ruin the dialogue, destroy the
credibility of the scenes, undermine the film's content, and mutilate
and distort the work of Curtis Hanson.
These are just a few examples of the effect that unauthorized
editing has on directors and their artistic vision for motion pictures.
While it is bad enough to have the stories severely weakened, it is
simply wrong for these companies to profit by removing content from
films and thereby changing their meaning without the permission of
directors or the studios that are the copyright holders.
Directors take great care in making motion pictures and are faced
with a multitude of creative choices during the filmmaking process.
Moreover, for many movies, directors also work hard during production
and editing to create alternative versions that are suitable for
television and airlines. And unlike these companies who simply cut,
skip, or mute the films, directors have tools at their disposal to add
alternate scenes, takes, and dialog to the airline and television
versions. These tools allow directors to create alternate versions of
their films that remain true to each director's vision, so that in
appropriate circumstances these films can be shown to audiences for
whom they were not originally intended.
Sometimes, the director and the studio determine that a movie
should not be edited for television or an airline, because of its
content and subject matter. As an example, Steven Spielberg's
Schindler's List has never been edited for television or airplane
exhibition. In fact, Schindler's List was shown on television in the
full, uncut theatrical version, and was accompanied by numerous viewer
warnings throughout the showing regarding the appropriateness of its
content for certain viewers.
Despite this fact, I have seen a version of Schindler's List
heavily edited by one of the film editing companies. This version edits
out much of the Holocaust brutality, profane dialogue, and any scene
deemed too disturbing in the judgment of the editor. In short, it cuts
deeply into the horror the film seeks to document. Deleted are many
crucial scenes that directly illustrate the brutality of the Nazis and
their assault on the Jews of Poland. For example, there is an early
scene illustrating Goeth's insanity, where he randomly shoots prisoners
from his villa balcony. There is another scene in which Goeth berates a
line-up of prisoners that again shows his imbalance and in turn the
depravity of the Nazi leadership. Both scenes are deleted. These
missing scenes are vital to accurately illustrating the Nazi party and
all the atrocities its leaders committed and got away with for so long.
This version also cuts some of the most horrifying camp scenes
involving dead bodies. In addition, this version substantially removes
a critical scene in which Jews disembark from trains and are herded
into a concentration camp. With Steven Spielberg's masterful touch,
these scenes captured the Nazis' highly regimented approach to their
evil deeds. With these scenes removed, the edited version leaves
viewers with a sanitized, inaccurate view of the worst abuses of
Nazism, and stands out as one of the most disturbing examples yet of
how much a film, its story, its heart, and indeed its sole purpose, can
be affected by random edits.
I am sure the unauthorized editors of this particular scene were
not attempting to minimize the horrors of Nazism, but another company,
in another context, could easily do just that to suit their own
viewpoint. Amending the copyright law to permit this historical
revision would just be wrong.
Initially, many software filtering and film editing companies
claimed that they would not market versions of movies that were wholly
unsuitable for young or sensitive viewers, such as Saving Private Ryan,
The Passion of the Christ, or Schindler's List. Recently however, we
have seen certain companies offer these films that clearly are intended
for adult viewers. If you go to the website of one such company, you
can now reserve an edited version of The Passion of the Christ, a film
with serious subject matter and content that may not be suitable for
young viewers.
LEGISLATION
The DGA understands that some members of this Subcommittee are
concerned about the current dispute between movie filtering companies
and the motion picture industry over the legality of altering films. We
understand that there is consideration of pursuing legislation that
would amend the copyright laws to deal with this. At least one draft
that has been circulating would permit software that enables
unauthorized skipping and muting of any digital version of a
copyrighted matter. That legislation would enable these companies to do
this for their own commercial purposes, without the director's
knowledge, and in a way that interferes with the director's artistic
vision for his or her films.
This kind of activity is precisely why our founding fathers
envisioned copyright protection for creative works, and why Congress
has created a system that protects those works. Amending the copyright
laws to authorize these products would allow companies to ignore
copyright protections created by Congress, and to destroy someone
else's property rights and reputation, all in the name of profit. This
is particularly troubling in a digital era, where creative works can so
easily be destroyed or distorted by others. That is the very reason
that copyright protection is fundamental to artists and to consumers,
who assume when they see a film that it is the one the director
intended to make and present under his or her name. Never was this
protection more important that today, when a motion picture can so
easily be illegally copied, edited, and transmitted to millions of
people through digital means.
We appreciate the concerns of parents and families about exposing
their children to unwholesome entertainment. We know that parents face
many hurdles in protecting their children. As filmmakers and parents,
we know when we make a film whether it was intended for children or
not. Simply put, we do not expect children to see a film that was not
made for them, unless their parents want them to. Ultimately consumers
and parents have the choice; they can decide whether or not to purchase
or rent a videotape or DVD of a particular film. That is the purpose of
the movie rating system; to distinguish the content of films and
identify what the appropriate audience is for that film.
The DGA's Social Responsibility Task Force--which I co-chair--has
been active in promoting the importance of the film rating system, and
we work closely with the MPAA and the National Organization of Theater
Owners to strengthen that system by increasing awareness and providing
consumers with information about movies. We are parents, and we assume
that, like us, parents will be guided by the ratings system and will
make sure that young children are not shown films that are not
appropriate for them, and which the director did not intend for
children to see.
Amending the copyright laws to permit the use of digital content
filters simply is not the way to deal with this issue. Such legislation
opens the door to many unintended manipulations of movies or other
copyrighted material that we all would agree are improper. Indeed, this
legislation would not, and could not, discriminate between editing for
benign, ``family friendly,'' purposes, on the one hand, and other more
nefarious purposes, on the other hand. For example, we presume that
this Subcommittee does not intend to authorize people to use filtering
technology to change the political content of copyrighted works, such
as editorial columns or political statements. However, this is
precisely one of the unintended effects that this legislation would
have.
It could also lead to the development of an industry to market
without authorization abridged versions of movies, books, magazine
articles, and other copyrighted material.
Nevertheless, and in spite of our overwhelming concern about the
protection of our work, the DGA has gone to extraordinary lengths to
try to resolve this matter. The DGA wants to assure this Subcommittee
that it takes your concerns very seriously. Our leadership and lawyers
have been working with lawyers for the studios and some of the parties
that make these products. I understand that there has been considerable
progress towards a resolution.
As this Subcommittee is aware, directors do not typically own the
copyright in their motion pictures; our movies generally are works for
hire. As a result, the motion picture studios typically have the
dominant voice in how motion pictures are treated after the director
completes and edits the film.
Because the DGA's collective bargaining agreement with the studios
protects the artistic rights of directors, and gives directors a key
role in the creation of alternate versions of motion pictures for
television and airline use, the DGA has worked to permit the studios to
reach agreements with these companies. While we have, as expressed
here, strong views about the unauthorized editing of films, we are also
well aware of the concerns of the members of this subcommittee. We have
made great effort to seek a solution that would make available versions
of movies with director and studio involvement.
[The prepared statement of the American Medical Association
follows:]
Prepared Statement of the American Medical Association
The American Medical Association (AMA) is pleased to submit this
statement for the record which focuses on the effect of media violence
on children's health. For the past several decades, the physician and
medical student members of the AMA have been increasingly concerned
that exposure to violence in media, including television, movies, music
and video games, is a significant risk to the physical and mental
health of children and adolescents. America's young people are being
exposed to ever-increasing levels of media violence, and such violence
has become increasingly graphic.
Violence in all forms has become a major medical and public health
epidemic in this country. The AMA strongly abhors, and has actively
condemned and worked to reduce, violence in our society, including
violence portrayed in entertainment media. The AMA has long been
concerned about the prevalent depiction of violent behavior on
television and in movies, especially in terms of its ``role-modeling''
capacity to potentially promote ``real-world'' violence. We have
actively investigated and analyzed the negative effects that the
portrayal of such violence has on children, and for almost 30 years,
have issued strong policy statements against such depictions of
violence.
Over the past three decades, a growing body of scientific research
has documented the relationship between the mass media and violent
behavior. Over 1000 studies, including reports from the Office of the
Surgeon General, the National Institute of Mental Health, as well as
research conducted by leading figures in medical and public health
organizations, point overwhelmingly to a causal relationship between
media violence and aggressive behavior in some children. The research
overwhelmingly concludes that viewing ``entertainment'' violence can
lead to increases in aggressive attitudes, values and behavior,
particularly in children. Moreover, exposure to violent programming is
associated with lower levels of pro-social behavior.
The effect of ``entertainment'' violence on children is complex and
variable, and some children will be affected more than others. But
while duration, intensity and extent of the impact may vary, there are
several measurable negative effects of children's exposure to such
violence:
Children who see a lot of violence are more likely to
view violence as an effective way of settling conflicts and
assume that acts of violence are acceptable behavior.
Viewing violence can lead to emotional
desensitization towards violence in real life. It can decrease
the likelihood that one will take action on behalf of a victim
when violence occurs.
``Entertainment'' violence feeds a perception that
the world is a violent and mean place. Viewing violence
increases fear of becoming a victim of violence, with a
resultant increase in self-protective behaviors and a mistrust
of others.
Viewing violence may lead to real life violence.
Children exposed to violent programming at a young age have a
higher tendency for violent and aggressive behavior later in
life than children who are not so exposed.
In July 2000, at a Congressional Public Health Summit, the AMA
joined the American Academy of Pediatrics, the American Academy of
Child and Adolescent Psychiatry, the American Academy of Family
Physicians, the American Psychiatric Association and the American
Psychological Association in issuing a ``Joint Statement on the Impact
of Entertainment Violence on Children.'' The Joint Statement
acknowledges that television, movies, music and interactive games are
powerful learning tools and that these media can, and often are, used
to instruct, encourage and even inspire. The Joint Statement, however,
also points out that when these entertainment media showcase violence,
particularly in a context which glamorizes or trivializes it, the
lessons learned can be destructive.
While ``entertainment'' violence is certainly not the sole factor
contributing to youth aggression, anti-social attitudes and violence,
the entertainment industry must assume its share of responsibility for
contributing to the epidemic of violence in our society. The AMA
believes that because violence is a public health threat, careful
consideration must be given to the content of entertainment media. As
part of its strategy to reduce violence, the AMA supported past efforts
by network broadcasters in adopting advance parental advisories prior
to airing programs that are unfit for children, strong and effective
television and movie ratings systems, and ``V'' Chips that can screen
out violent programming.
In a free society, there must be a balance between individual
rights of expression and societal responsibility. We believe that
balance can only be achieved if Americans are provided with the tools
they need to identify and distinguish those forms of entertainment that
might be suitable for themselves and those that might be suitable for
their families. We are not advocating restrictions on creative
activity. We do believe, however, that parents need and deserve help in
supervising their children's viewing behavior and guiding them in the
right direction.
DVD-filtering devices can empower parents with the means to make
decisions about what entertainment media they want their children to
view. It is our understanding that the DVD-filtering technology allows
consumers to automatically delete profanity, nudity and graphic scenes
from DVD movies, but does not permanently alter the content of the
DVDs. Movies shown on television or airplanes already are edited to
remove some violence, sexually explicit scenes and profanity. DVD-
filtering technology would seem to be a logical extension of these
efforts to enable parents to exercise their appropriate role and
responsibility in determining the types of entertainment media to which
their children will be exposed.
The AMA appreciates the opportunity to share its views on a matter
of such high importance to the health of Americans.
[The prepared statement of Mr. Bray follows:]
Mr. Smith. Let me say that I do hope that the issues can be
negotiated and resolved over the next, say, couple of weeks and
that it won't be necessary to introduce legislation, but that,
of course, is an option that the Chairman of the full Committee
and I intend to exercise if the resolutions are not forthcoming
as I hope that they will be.
This has been very informative and an unusual hearing, I
think, for us, to be talking about parental rights as well as
technology at the same time and I thank you all for your
contributions.
We stand adjourned.
[Whereupon, at 11:58 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard L. Berman, a Representative
in Congress From the State of California, and Ranking Member,
Subcommittee on Courts, the Internet, and Intellectual Property
Mr. Chairman,
This hearing certainly delves into a number of interesting issues
about artistic freedom, the definition of copyright-infringing
derivative works, and the extent to which the unfair competition
provisions of the Lanham Act protect the moral rights of creators.
However, I'm not sure any of these issues are ripe for a
congressional hearing. The movie studios, directors, and ClearPlay are
actively engaged in licensing negotiations to resolve their dispute. As
I understand it, those negotiations had been close to a mutually
acceptable conclusion. The public posturing and adversarial nature
inherent in congressional hearings is bound to set back these
negotiations, and thus thwart the stated purpose of this hearing.
Furthermore, the problem on which this hearing focuses is
hypothetical at best. A District Court case addressing these very
issues has not yet proceeded past the most preliminary stages. It seems
a waste of time to discuss statutory amendments before any court has
interpreted the law in an allegedly undesirable way.
But despite my misgivings, we are here. So, I might as well use my
time to clearly state my opposition to the hypothetical legislation
that may be forthcoming to address the hypothetical problem before us.
I do not believe Congress should give companies the right to alter,
distort, and mutilate creative works, or to sell otherwise-infringing
products that do functionally the same thing. I believe such
legislation would be an affront to the artistic freedom of creators. It
would violate fundamental principles of copyright and trademark law.
And if drafted to avoid violating the First Amendment, it would almost
surely defeat the apparent purposes of its drafters.
Such legislation presents an almost endless variety of
complications and conundrums.
Would legislation attempt to define the types of ``offensive''
content that could be altered or deleted? If such definitions include
violence, sexual material, and profanity, the legislation will almost
certainly violate the First Amendment. And First Amendment concerns
aside, attempts to define offensive content will backfire. Legislation
that allows deletion of violent scenes from The Last Samurai would also
allow The Passion of The Christ to be stripped of its graphic violence.
Do those who find the violence in The Passion so integral to the story
think a sanitized version would do the story justice?
Of course, First Amendment concerns could be skirted by granting a
content-neutral right to edit content, but that will just create
further problems. For every case in which ClearPlay sanitizes the kitty
litter humor in ``The Cat in the Hat,'' another company will strip The
Passion of offensive depictions of Jews. Personally, I might not mind
the outcome. Someone else might prefer it if scenes depicting
interracial physical contact were cut from Look Who's Coming to Dinner
or Jungle Fever. But I don't think this is what America is about.
Innovation, growth, and progress occur through exposure to an unbridled
marketplace of ideas, not by ensuring that everything you see, read,
and experience fits within your pre-conceived world views.
Would legislation distinguish between fictional and non-fictional
works? I don't see how. For instance, is The Passion of The Christ
fictional or historical? What about ``The Reagans'' mini-series? And
who would be the arbiter? The Anti-Defamation League in the case of The
Passion? The Reagan family in the case of The Reagans? But if the
legislation does not make a fiction/non-fiction distinction, it is an
invitation to rewrite history. For instance, World War II documentaries
could be stripped of concentration camp footage. Fahrenheit 911 could
be stripped of scenes linking the Houses of Bush and Fahd.
And on what principled basis would such legislation apply only to
motion pictures? If it is really meant to empower consumers to
customize their lawfully purchased copyrighted works, then it would
apply to all copyrighted works. It would legalize the unauthorized
software plug-ins that enable you to play the Tomb Raider computer game
with a topless Lara Croft, and to put the faces of teachers and
classmates on the heads of target monsters in certain ``shooter''
computer games. Would the legislation make it legal for someone with
digital editing software to doctor a 30-year-old photograph of a
Vietnam War rally so that it appears that John Kerry is standing next
to Jane Fonda?
Would the legislation only apply to digital works? If so, what
nonsense. It means that someone could sell an e-book reader that
prevents reading the murder scene in an ebook version of Dostoevsky's
Crime and Punishment, but can't sell the hard-copy book with the
offending pages ripped out. Why would legislation protect technology
that skips the violent scenes in a DVD version of Platoon, but not
protect a service that cuts the same scenes from the VHS version? If
both activities are copyright infringement today, why would legislation
only immunize the digital infringement?
As a parent, I am concerned about what my children see and hear in
our cacophonous media society. But I believe parenting is the parents'
job, not the government's. I wonder why vocal proponents of personal
responsibility and limited government readily abandon those principles
when presented with the opportunity to place the government in loco
parentis. If the government should stay out of our gun closets,
shouldn't it stay out of our bedrooms and living rooms? If the
government should let the marketplace develop solutions to
environmental pollution, shouldn't it also let the marketplace develop
solutions to so-called cultural pollution?
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
Make no mistake about it, today's hearing is an abuse of process
and is about nothing less than censoring the movie industry.
At the outset, I am embarrassed we are having this hearing. 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 hearing to pressure the directors and help the other
side. In my tenure in Congress, this is the first time I can remember
having a one-sided hearing involving on-going settlement talks. 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.
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 make the Nazis appear
merely mischievous. 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; over the past several years, Hollywood 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.
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.
I hope this is not the type of democracy, one of strong-arm
government and censorship, that our Republican colleagues want to take
to Iraq.
Response to question submitted by Representative Howard L. Berman to
Marjorie Heins
Book Review by Joanne Cantor
Published in Journalism and Mass Communication Quarterly, 2003, 80, p.
468.
Media Violence and Its Effect on Aggression: Assessing the Scientific
Evidence, by Jonathan L. Freedman. Toronto: University of Toronto
Press, 2002, xiii, 227 pages; $50 hbk., $24.95 pbk.
``In 1999 I was approached by the Motion Picture Association of
America [MPAA] and asked whether I would consider conducting a
comprehensive review of all the research on media violence,'' says
Jonathan L. Freedman in the Preface to Media Violence and Its Effect on
Aggression (p. x). The media's cultivation of academics who disparage
research showing that their products are harmful is not new: It goes
back at least as far as Will Hays' lavish support of Mortimer Adler in
the 1930's (Adler 1977, 193-194; Vaughn, 2003). Freedman, a psychology
professor at the University of Toronto who has never conducted his own
research on media violence, claims that the financial support has not
affected his objectivity, although he doesn't hesitate to see ulterior
motives in the scientists and professionals who disagree with his
conclusions.
Freedman expresses outrage at social scientists and public health
organizations for wrongly (in his view) concluding that media violence
promotes aggressive behavior. His criticism essentially boils down to
two arguments. The first is that the professional organizations have
exaggerated the number of scientific studies that have been conducted
on the topic. The second is that a study-by-study analysis reveals that
there is no consensus in the findings.
Freedman is correct that the number of studies has sometimes been
overstated. Although some organizations have cited a number as high as
3,500, recent meta-analyses have placed the number between 200 and 300.
Freedman explains that the inflated number originally referred to all
types of articles about media effects, not just scientific studies of
media violence. Somehow this number was picked up by others and
misapplied. Freedman considers this ``the worst kind of irresponsible
behavior,'' and finds the use of this figure to be as ``sloppy'' as an
economist saying that his research was based on data from ``over 150
American states'' (p. 9)!
Freedman never says how many more studies he would consider
necessary. If we look at research findings in other areas, however, 200
would seem quite sufficient. For example, the finding that calcium
intake increases bone mass is based on 33 studies (Welten, Kemper,
Post, and van Staveren 1995); the conclusion that exposure to lead
results in low I.Q. scores is based on 24 studies (Needleman and
Gatsonis 1990).
The bulk of the book includes a tedious, close analysis of every
published scientific study of the effects of media violence on
aggression or desensitization that Freedman could find. (See the
Reference List for some he missed and more recent compelling evidence).
Not surprisingly, Freedman considers many studies unconvincing.
Although some of his criticisms of individual studies are justified, he
seems strongly motivated to find flaws. Moreover, after giving an
exhaustive explanation of research methods, he forgets one basic
principle--that the lack of a statistically significant difference is
not the same as a finding of no effect. In addition, he disputes the
fact that meta-analysis, which statistically combines all the findings
in an area and eliminates the subjective interpretation of individual
studies (Mann 1994), is an appropriate way to discover a research
consensus. Freedman discusses two meta-analyses (Paik and Comstock
1994; Wood, Wong, and Chachere 1991) that report a clear conclusion
that media violence promotes aggression, but dismisses them. Two recent
meta-analyses (Anderson and Bushman 2001; Bushman and Anderson 2001)
are not included. Freedman also chooses not to cover research on media
violence's effect on fear, simply claiming that ``the research has not
provided much support for it'' (p. 11).
Why does Freedman think there so much bias in the interpretation of
media violence research? In his view, the health professionals are
trying to please the politicians, and the academics are trying to
promote their careers. Although Freedman claims that he himself is not
biased, he seems more concerned with damage to the media industries
than with harm to children. For example, he decries the fact that
reliance on what he considers flawed research has ``force[d] television
companies to rate every single program for violence'' (p. 4), and he
feels sorry for parents, who are getting unnecessary advice based on
``pop psychology'' (p. 12).
At the end of the book, Freedman makes a strange and ludicrous
argument to explain why media violence does not have negative effects.
He says that advertisements have effects because they have a ``clear,
unmistakable message. . . . The people who see an ad know its purpose;
if they do not, . . . [it] will probably have no effect.'' In contrast,
``Films and television programs that contain violence . . . are just
entertainment. . . . So it should not be surprising that they have no
effect on people's aggressive behavior'' (p. 204). This reasoning flies
in the face of decades of research on persuasion, imitation, and child
development.
Freedman says the book would not have been possible without the
MPAA's support. However, between the tedium of the criticism of each
research design and the polemical nature of his arguments, I don't
foresee it having much of an impact.
Joanne Cantor
University of Wisconsin-Madison
Reference List
Adler, Mortimer J. 1977. Philosopher at large: An Intellectual
biography. New York: MacMillan.
Anderson, Craig A. and Brad J. Bushman. 2001. ``Effects of violent
video games on aggressive behavior, aggressive cognition,
aggressive affect, physiological arousal, and prosocial behavior: A
meta-analytic review of the scientific literature.'' Psychological
Science 12: 353-359.
Bushman, Brad J., and Craig A. Anderson. 2001. ``Media violence and the
American public: Scientific facts versus media misinformation.''
American Psychologist 56: 477-489.
Cantor, Joanne. 1998. ``Mommy, I'm scared:'' How TV and movies frighten
children and what we can do to protect them. San Diego: Harcourt.
Huesmann, L. Rowell, Jessica Moise-Titus, Cheryl-Lynn Podolski, and
Leonard D. Eron. 2003. ``Longitudinal relations between children's
exposure to TV violence and their aggressive and violent behavior
in young adulthood: 1977-1992.'' Developmental Psychology 39: 201-
221.
Johnson, Jeffrey G., Patricia Cohen, Elizabeth M. Smailes, Stephanie
Kasen, and Judith S. Brook. 2002. ``Television viewing and
aggressive behavior during adolescence and adulthood.'' Science
295: 2468-2471.
Lemish, Dafna. 1997. ``The school as a wrestling arena: The modeling of
a television series.'' Communication 22: 395-418.
Mann, Charles C. 1994. ``Can meta-analysis make policy?'' Science 266
(5197): 960-962.
Needleman, Herbert L., and Constantine A. Gatsonis. 1990. ``Low level
lead exposure and the IQ of children.'' Journal of the American
Medical Association 263: 673-678.
Paik, H., and George Comstock. 1994. ``The effects of television
violence on antisocial behavior: A meta-analysis.'' Communication
Research, 21: 516-546.
Vaughn, Stephen L. 2003. Freedom and entertainment: Cinema, censorship
and technology in the 20th Century. Unpublished manuscript,
submitted for publication.
Welten, Desiree C., Han C. G. Kemper, G. Bertheke Post and Wija A. van
Staveren. 1995. ``A meta-analysis of the effect of calcium intake
on bone mass in young and middle aged females and males.'' Journal
of Nutrition 125: 2802-2813.
Wood, Wendy, Frank F. Wong, and Gregory J. Chachere. 1991. ``Effects of
media violence on viewers' aggression in unconstrained social
interaction.'' Psychological Bulletin 109: 371-383.
__________
Remarks Delivered by Joanne Cantor at the Madison Civics Club
Whose Freedom of Speech Is It Anyway? \1\
---------------------------------------------------------------------------
\1\ A shortened version of these remarks appeared in the Wisconsin
State Journal, October 17, 2002.
---------------------------------------------------------------------------
I've been asked to comment on Freedom of Speech issues that are
confronting us in the U.S. today. Many people have noted that corporate
interests control what gets discussed in the media, and one place where
this is obvious is the controversy over the media's effects on
children. Research shows that violent television, movies, videogames,
and even commercials can produce serious harmful effects on children,
such as promoting violent behaviors and inducing intense anxieties.
Parents need this information so they can make informed choices about
their children's viewing, but the media use their corporate power to
censor information that might damage their profits. At the same time,
these corporations raise First Amendment concerns when solutions that
might help parents are proposed. Here are a few recent examples of what
I'm talking about:
ONE. In 1997, I participated in a taping of The Leeza Show. On that
show, parents were highly critical of the TV industry's new age-based
rating system that was supposed to help them block harmful content
using a device called the V-chip. NBC, which opposed making changes in
the rating system, refused to let that program air. And five years
later, they still have not gone along with the compromise that the
other stations adopted.
TWO. After the National Institute on Media and the Family released
a list of the 10 most violent video games, they were sued by the
manufacturer of one of the games on the list. Although the lawsuit was
eventually dropped, the costly process caused the organization's
liability insurance to double, and they were subsequently lucky to get
any insurance at all.
THREE. The Center for Successful Parenting produced a documentary
on the effects of media violence for Court TV, a cable channel that is
owned by Time-Warner. Before the program could air, the producers were
told to remove the mention of Time-Warner's products. They were also
required to include remarks by lobbyist Jack Valenti, who claimed that
the research showing harmful effects was inconclusive.
These are just a few of many examples of corporate interests using
their muscle to restrict the free flow of information to parents. They
say that it's up to parents, not the media, to raise their children.
But they make harmful products, which come into our homes automatically
through television, they market them to children too young to use them
safely, and they try to keep parents in the dark about their effects.
A sensible solution is to require media producers to accurately
label their programming. The media interests say that this is the start
down a slippery slope toward censorship. But we require food labels so
people don't have to eat something to find out they're allergic to it.
We even require clothing manufacturers to label their products so our
colors won't run and our garments won't shrink.
Because the media are so pervasive and parents can't be constantly
present in their children's lives, parents need tools to help them
enact their decisions about what's healthy or unhealthy for their
children. The V-chip is one possible solution, but it won't work
without accurate, informative ratings, and it can't be used by the
majority of parents, who have yet to hear about it because it gets so
little publicity. Did you know that since January 2000, all new TV's
except very small ones are required by law to have the V-chip?
Newer tools that might help parents are being fought by the
industry. A video recorder called Replay TV allows parents to skip
commercials--which are becoming more violent and edgier all the time.
The entertainment industries have sued Replay TV for encouraging what
they call copyright infringement. Other new products involve software
that can create ``tamer'' versions of movies according to parents'
preferences. Recent news reports suggest that legal action against
these products is also forthcoming.
Other attempts at parental empowerment are also being fought. The
city of Indianapolis, recognizing that many young people go shopping
without their parents, enacted a videogame ordinance. It required the
owners of videogame arcades to label games featuring graphic violence
or strong sexual content and to prohibit children under 18 from playing
them without parental consent. The videogame industry sued, and the
Court declared the law an unconstitutional infringement of freedom of
speech. Similar ordinances in other communities are also facing
challenge.
Censorship is not the answer. But the pattern here is that the
First Amendment is aggressively used to protect commercial interests at
the same time that the free speech rights of child advocates are
stifled. We are fortunate in Madison to be the home of the National
Telemedia Council, the nation's oldest media literacy organization, and
I'm optimistic that through parent education and media literacy, we can
help our children lead healthier lives. However, to do this, we all
need equal access to freedom of speech.
See also:
Cantor, J. (1998). Mommy, I'm Scared: How TV and Movies Frighten
Children and What We Can Do to Protect Them. San Diego, CA:
Harcourt.
Cantor, J. (forthcoming). Teddy's TV Troubles. (A children's book about
coping with frightening media, illustrated by Tom Lowes.) Madison,
WI: Goblin Fern Press. www.goblinfernpress.com.