[Congressional Record Volume 150, Number 123 (Monday, October 4, 2004)]
[Extensions of Remarks]
[Pages E1788-E1790]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              PIRACY DETERRENCE AND EDUCATION ACT OF 2004

                                 ______
                                 

                               speech of

                          HON. LAMAR S. SMITH

                                of texas

                    in the house of representatives

                      Tuesday, September 28, 2004

  Mr. SMITH of Texas. Mr. Speaker, I wish to offer some additional 
information and guidance on several sections of H.R. 4077.
  Section 12 of H.R. 4077 is called the ``Family Movie Act of 2004.'' 
The Committee has made changes to the Committee reported language to 
better enable the provision to achieve its purpose: to empower people 
to use technology to skip and mute material that they find 
objectionable in movies, without impacting established doctrines of 
copyright or trademark law or those whose business model depends upon 
advertising. This amendment to the law should be narrowly construed to 
affect its intended purpose only. The sponsors of the legislation have 
been careful to tailor narrowly the legislation to clearly allow 
specific, consumer-directed activity and not to open or decide 
collateral issues or to affect any other potential or actual disputes 
in the law.
  The substitute amendment we offer today makes clear that, under 
certain conditions, ``making imperceptible'' of limited portions of 
audio or video content of a motion picture--that is, skipping and 
muting limited portions of movies without adding any content--as well 
as the creation or provision of a computer program or other technology 
that enables such making imperceptible, does not violate existing 
copyright or trademark laws. That is true whether the movie is on 
prerecorded media, like a DVD, or is transmitted to the home, as 
through services like ``video-on-demand.''
  The core provision of the Family Movie Act lies in Section 2, which 
creates a new exemption at section 110(11) of the Copyright Act. This 
new exemption sets forth a number of conditions to ensure that it 
achieves its intended effect while remaining carefully circumscribed 
and avoiding any unintended consequences. The conditions that allow an 
exemption, which I will discuss in more detail in a moment, consist of 
the following:
  The making imperceptible must be ``by or at the direction of a member 
of a private household.'' This legislation contemplates that any 
altered performances of the motion picture would be made either 
directly by the viewer or at the direction of a viewer where the viewer 
is exercising substantial choice over the types of content they choose 
to skip or mute.
  The making imperceptible must occur ``during a performance in or 
transmitted to the household for private home viewing.'' Thus, this 
provision does not exempt an unauthorized ``public performance'' of an 
altered version.
  The making imperceptible must be ``from an authorized copy of a 
motion picture.'' Thus, skipping and muting from an unauthorized, or 
``bootleg'' copy of a motion picture would not be exempt.
  No ``fixed copy'' of the altered version of the motion picture may be 
created by the computer program or other technology that makes 
imperceptible portions of the audio or video content of the motion 
picture. This provision makes clear that services or technologies that 
make a fixed copy of the altered version are not afforded the benefit 
of this exemption.

  No changes, deletions or additions may be made by the computer 
program or other technology to commercial advertisements, or to network 
or station promotional announcements, that would otherwise be performed 
or displayed before, during, or after the performance of the motion 
picture. This requirement makes plain that devices or services that 
provide for automated ``ad-skipping'' do not fall within the scope of 
this exemption.

[[Page E1789]]

  The ``making imperceptible'' of content does not include the addition 
of audio or video content over or in place of other content, such as 
placing a modified image of a person, a product, or an advertisement in 
place of another, or adding content of any kind.
  The portion of the substitute amendment containing the Family Movie 
Act reflects a number of clarifying changes from the version of the 
bill reported by the Judiciary Committee.
  The substitute amendment makes clear that the ``making 
imperceptible'' of limited portions of audio or video content of a 
motion picture must be done by or at the direction of a member of a 
private household. While this limitation does not require that the 
individual member of the private household exercise ultimate decision-
making over each and every scene or element of dialog in the motion 
picture that is to be made imperceptible, it does require that the 
making imperceptible be made at the direction of that individual in 
response to the individualized preferences expressed by that 
individual. The substitute amendment envisions that the test of ``at 
the direction of an individual'' is satisfied when an individual 
selects preferences from among options that are offered by the 
technology.
  The Committee has used as an example the model of ClearPlay, which 
appeared before the Subcommittee during hearings on this legislation. 
ClearPlay provides filter files that allow a viewer to express his or 
her preferences in a number of different categories, including 
language, violence, drug content, sexual content, and several others. 
The version of the movie that the viewer sees depends upon the 
preferences expressed by that viewer. It is the Committee's view that 
the current version of ClearPlay falls under the liability limitation 
of the Family Movie Act.
  This limitation would not allow a program distributor, such as a 
provider of video-on-demand services, a cable or satellite channel, or 
a broadcaster, to make imperceptible limited portions of a movie in 
order to provide an altered version of that movie to all of its 
customers, which would likely violate a number of the copyright owner's 
exclusive rights, or to make a determination of scenes to be skipped or 
dialog to be muted and to offer to its viewers no more of a choice than 
to view an original or an altered version of that film. Some element of 
individualized preferences and control must be present such that the 
viewer exercises substantial choice over the types of content they 
choose to skip or mute.
  It is also important to emphasize that the new section 110(11) 
exemption is targeted narrowly and specifically at the act of ``making 
imperceptible'' limited portions of audio or video content of a motion 
picture during a performance that occurs in, or that is transmitted to, 
a private household for private home viewing. This section would not 
exempt from liability an otherwise infringing performance, or a 
transmission of a performance, during which limited portions of audio 
or video content of the motion picture are made imperceptible. In other 
words, where a performance in a household or a transmission of a 
performance to a household is done lawfully, the making imperceptible 
limited portions of audio or video content of the motion picture during 
that performance, consistent with the requirements of this new section, 
will not result in infringement liability. Similarly, an infringing 
performance in a household, or an infringing transmission of a 
performance to a household, are not rendered non-infringing by section 
110(11) by virtue of the fact that limited portions of audio or video 
content of the motion picture being performed are made imperceptible 
during such performance or transmission in a manner consistent with 
that section.
  The substitute amendment also provides additional guidance, if not an 
exact definition, of what the term ``making imperceptible'' means. The 
substitute provides that the term ``making imperceptible'' does not 
include the addition of audio or video content that is performed or 
displayed over or in place of existing content in a motion picture. 
This is intended to make clear in the text of the statute what has been 
expressed throughout the consideration of this legislation, which is 
that the Family Movie Act does not allow for the addition of content of 
any kind, including the making imperceptible of audio or video content 
by replacing it or by superimposing other content over it. In other 
words, for purposes of section 110(11), ``making imperceptible'' refers 
solely to skipping scenes and portions of scenes or muting audio 
content from the original, commercially available version of the motion 
picture. No other modifications of the content are addressed or 
immunized by this legislation.
  The Committee is aware that some copy protection technologies rely on 
matter placed into the audio or video signal. We would point out that 
the phrase ``limited portions of audio or video content of a motion 
picture'' means what it would naturally seem to mean (i.e., the actual 
content of the motion picture) and does not refer to any component of a 
copy protection scheme or technology. It is not our intention that this 
provision allow the skipping of technologies or other copy-protection-
related matter for the purpose of defeating copy protection. Rather, it 
is expected that skipping and muting of content in the actual motion 
picture will be skipped or muted at the direction of the viewer based 
on that viewer's desire to avoid seeing or hearing the action or sound 
in the motion picture. Skipping or muting done for the purpose of or 
having the effect of avoiding copy protection technologies would be an 
abuse of the safe harbor outlined in this legislation and may violate 
section 1201.
  Violating the Digital Millennium Copyright Act, and particularly its 
anti-circumvention provisions, is not necessary to enable technology of 
the kind contemplated under the Family Movie Act. Although the 
amendment to section 110 provides that it is not an infringement of 
copyright to engage in the conduct that is the subject of the 
Family Movie Act, the Act does not provide any exemption from the anti-
circumvention provisions of section 1201 of title 17, or from any other 
provision of chapter 12 of title 17. It would not be a defense to a 
claim of violation of section 1201 that the circumvention is for the 
purpose of engaging in the conduct covered by this new exemption in 
section 110(11), just as it is not a defense under section 1201 that 
the circumvention is for the purpose of engaging in any other non-
infringing conduct.

  The Committee is aware of companies currently providing the type of 
products and services contemplated by this Act and found that the 
Family Movie Act created no impediment to the technology employed by 
those companies. Indeed, it is important to underscore the fact that 
our support for this technology and consumer offering is driven in some 
measure by our desire for copyright law to be respected and to ensure 
that this technology be deployed in a way that supports the continued 
creation and protection of entertainment and information products that 
rely on copyright protection. It is our firm expectation that those 
rights and the interests of viewers in their homes can work together in 
the context we have defined in this bill. Any suggestion that support 
for the exercise of viewer choice in modifying their viewing experience 
of copyrighted works requires violation of either the copyright in the 
work or of the copy protection schemes that provide protection for such 
work should be rejected as counter to legislative intent or 
technological necessity.
  The substitute amendment offered today also provides for an exclusion 
to the exemption in cases involving the making imperceptible of 
commercial advertisements or network or station promotional 
announcements. The Committee heard concerns during the Committee markup 
that the bill might be read to somehow exempt from copyright 
infringement liability devices that allow for skipping of 
advertisements in the playback of recorded television. This is neither 
the intent nor the effect of the bill. The phrase ``limited portions of 
audio or video content of a motion picture'' is intended to apply only 
to the skipping and muting of scenes or dialog of a motion picture and 
not to the skipping of advertisements. That intent is made clear in the 
language of the statute by our amendment today, which provides that the 
new section 110(11) exemption does not apply to the making 
imperceptible of commercial advertisements, or to network or station 
promotional announcements, that would otherwise be performed or 
displayed before, during or after the performance of the motion 
picture.
  The changes made by the substitute amendment are not to be taken to 
suggest that the Committee intends to express a view on the merits of, 
or the unresolved legal questions underlying, recent litigation related 
to so-called ``ad-skipping'' technologies. The Committee intends simply 
to make clear that this legislation is narrowly targeted to the use of 
technologies and services that filter out content in movies that a 
viewer finds objectionable and that it in no way relates to or affects 
the legality of so-called ``ad-skipping'' technologies.
  Because the committee's and the sponsors' intention has been to fix a 
narrow and specific copyright issue, we seek to avoid unnecessarily 
interfering with current business models, especially with respect to 
advertising, promotional announcements, and the like.
  The phrase ``commercial advertisements or . . . network or station 
promotional announcements'' is intended to cover what would naturally 
be perceived as commercials by most viewers, including traditional 
commercials that stand independent of the narrative flow of the content 
of the actual motion picture itself, or promotional announcements made 
in similar fashion, such as those commonly used to announce upcoming 
programming offered by the network or other entertainment provider.
  Let me offer a few final points with respect to Section 2. During the 
consideration of this legislation the Committee became aware of a 
variety of services that distributed actual copies of altered movies. 
This type of activity is clearly not covered by the Family Movie Act. 
There is a basic distinction between a viewer

[[Page E1790]]

choosing to alter what is visible or audible when viewing a film, the 
focus of this legislation, and a separate entity choosing to create and 
distribute a single, altered version to members of the public. It is 
the sponsor's intent that only viewer directed changes to the viewing 
experience be immunized, and not the making or distribution of actual 
altered copies of the motion picture.
  On a related point, the committee took notice of conflicting expert 
opinions on whether fixation is required to infringe the derivative 
work right under the Copyright Act, as well as whether evidence of 
Congressional intent in enacting the 1976 Copyright Act supports the 
notion that fixation should not be a prerequisite for the preparation 
of an infringing derivative work. The committee and the sponsors take 
no view of that disputed point of the law and leave that point to 
future developments in the courts or Congress. This legislation should 
not be construed to be predicated on or to take a position on whether 
fixation is necessary to violate the derivative work right, or whether 
the conduct that is immunized by this legislation would be infringing 
in the absence of this legislation.
  Section 3 of the Family Movie Act provides for a limited exemption 
from trademark infringement for those engaged in the conduct described 
in the new section 110(11) of the Copyright Act. The substitute 
amendment makes several clarifying changes from the version as reported 
by the Committee.
  In short, this section makes clear that a person engaging in the 
conduct described in section 110(11)--the ``making imperceptible of 
portions of audio or video content of a motion picture or the creation 
or provision of technology to enable such making available--is not 
subject to trademark infringement liability based on that conduct, 
provided that person's conduct complies with the requirements of 
section 110(11). This section provides a similar exemption for a 
manufacturer, licensee or licensor of technology that enables such 
making imperceptible, but such manufacturer, licensee or licensor is 
subject to the additional requirement that it ensure that the 
technology provides a clear and conspicuous notice at the beginning of 
each performance that the performance of the motion picture is altered 
from the performance intended by the director or the copyright holder.
  Of course, nothing in this section would immunize someone whose 
conduct, apart from the narrow conduct described by 110(11), rises to 
the level of a Lanham Act violation.
  For example, someone who provides technology to enable the making 
imperceptible limited portions of a motion picture consistent with 
section 110(11) could not be held liable on account of such conduct 
under the Trademark Act, but if in providing such technology the person 
also makes an infringing use of a protected mark or engages in other 
ancillary conduct that is infringing, such conduct would not be subject 
to the exemption provided here.
  Finally, regarding Section 10(G), the Committee intends that the 
government has the burden to prove beyond a reasonable doubt that the 
service provider is ineligible for a Section 512 safe harbor from 
monetary relief for performing the function in question. The Committee 
also intends that courts refer to the legislative history regarding and 
case law interpreting Section 512 as a guide to interpreting the 
substantive standards governing whether the service provider is 
ineligible for Section 512 protection.

                          ____________________