[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

                              ----------                              

                              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

                              ----------                              


                         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.
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                               __________
     Remarks Delivered by Joanne Cantor at the Madison Civics Club
               Whose Freedom of Speech Is It Anyway? \1\
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    \1\ A shortened version of these remarks appeared in the Wisconsin 
State Journal, October 17, 2002.
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    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.

                                 
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