[Congressional Record Volume 150, Number 136 (Wednesday, November 24, 2004)]
[Senate]
[Pages S11852-S11854]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2004
Mr. CORNYN. Mr. President, would the chairman yield for a
question?
Mr. HATCH. I would be happy to yield for a question from the
distinguished Senator from Texas.
Mr. CORNYN. As the chairman knows, he and I and our other co-sponsors
have worked throughout this Congress on the provisions of the Family
Entertainment and Copyright Act of 2004 that we have introduced today.
I just want to confirm what I believe to be our mutual understanding
about the effect of certain provisions of the Family Movie Act. Title
II of the Family Entertainment and Copyright Act of 2004 that we
introduced today modifies slightly the Family Movie Act provisions of
H.R. 4077 as passed by the House of Representatives. That bill created
a new exemption in section 110(11) of the Copyright Act for skipping
and muting audio and video content in motion pictures during
performances that take place in the course of a private viewing in a
household from an authorized copy of the motion picture. The House-
passed version specifically excluded from the scope of the new
copyright exemption computer programs or technologies that make
changes, deletions, or additions to commercial advertisements or to
network or station promotional announcements that would otherwise be
displayed before, during, or after the performance of the motion
picture.
My understanding is that this provision reflected a ``belt and
suspenders'' approach that was adopted to quiet the concerns of some
Members in the House who were concerned that a court might misread the
statute to apply to ``ad-skipping'' cases. Some Senators, however,
expressed concern that the inclusion of such explicit language could
create unwanted inferences as to the ``ad-skipping'' issues at the
heart of the recent litigation. Those issues remain unsettled, and it
was never the intent of this legislation to resolve or affect those
issues. In the meantime, the Copyright Office has confirmed that such a
provision is unnecessary to achieve the intent of the bill, which is to
avoid application of this new exemption in potential future cases
involving ``ad-skipping'' devices; therefore, the Senate amendment we
offer removes the unnecessary exclusionary language.
Would the chairman confirm for the Senators present his understanding
of the intent and effect, or perhaps stated more appropriately, the
lack of any effect, of the Senate amendment on the scope of this bill?
Mr. HATCH. My cosponsor, Senator Cornyn, raises an important point.
While we removed the ``ad-skipping'' language from the statute to avoid
this unnecessary controversy, you are absolutely correct that this does
not in any way change the scope of the bill. The bill protects the
``making imperceptible . . . limited portions of audio or video content
of a motion picture . . .'' An advertisement, under the Copyright Act,
is itself a ``motion picture,'' and thus a product or service that
enables the skipping of an entire advertisement, in any media, would be
beyond the scope of the exemption. Moreover, the phrase ``limited
portions'' is intended to refer to portions that are both
quantitatively and qualitatively insubstantial in relation to the work
as a whole. Where any substantial part of a complete work, such as a
commercial advertisement, is made imperceptible, the new section
110(11) exemption would not apply.
The limited scope of this exemption does not, however, imply or show
that such a product would be infringing. This legislation does not in
any way deal with that issue. It means simply that such a product is
not immunized from liability by this exemption.
Mr. CORNYN. I thank the chairman. I am pleased that we share a common
understanding. If the chairman would yield for one more question about
the Family Movie Act?
Mr. HATCH. Certainly.
Mr. CORNYN. This bill also differs from the House-passed version
because it adds two ``savings clauses.'' As I understand it, the
``copyright'' savings clause makes clear that there should be no
``spillover effect'' from the passage of this law: that is, nothing
shall be construed to have any effect on rights, defenses, or
limitations on rights granted under title 17, other than those
explicitly provided for in the new section 110(11) exemption. The
second, relating to trademark, clarifies that no inference can be drawn
that a person or company who fails to qualify for the exemption from
trademark infringement found in this provision is therefore liable for
trademark infringement. Is that the chairman's understanding as well?
Mr. HATCH. Yes it is. Let me ask that a copy of the section-by-
section analysis of the Family Movie Act as amended by the Senate be
included in the Record. This section-by-section analysis contains a
more complete analysis of the bill as proposed today in the Senate,
including the limited changes made by the bill Senators Leahy, Cornyn,
Biden, and I offer today.
The analysis follows.
Section-by-Section Analysis of the Family Movie Act of 2004, Amended
and Passed by the Senate
Overview
Title II of the Family Entertainment and Copyright Act of
2004 incorporates the House-passed provision of the Family
Movie Act of 2004, with limited changes as reflected in this
section-by-section analysis. As discussed herein, these
changes are not intended to and do not affect the scope,
effect or application of the bill.
The purpose of the Family Movie Act is to empower private
individuals to use technology to skip and mute material that
they find objectionable in movies, without impacting
established doctrines of copyright or
[[Page S11853]]
trademark law or those whose business models depend upon
advertising. This amendment to the law should be narrowly
construed to effect 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 bill as proposed in the Senate 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 pay-per-view and ``video-on-demand'' services.
Subsection (a): Short Title
Subsection (a) sets forth the short title of the bill as
the Family Movie Act of 2004.
Subsection (b): Exemption From Copyright and Trademark
Infringement for Skipping of Audio or Video Content of
Motion Pictures
Subsection (b) is the Family Movie Act's core provision and
creates a new exemption at section 110(11) of the Copyright
Act for the ``making imperceptible'' of limited portions of
audio or video content of a motion picture during a
performance in a private household. 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 are discussed in more detail below,
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.
The ``making imperceptible'' of limited portions of a
motion picture 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.
These limitations, and other operative provisions of this
new section 110(11) exemption, merit further elaboration as
to their purposes and effects.
The bill 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 test of ``at the direction of an individual'' would be
satisfied when an individual selects preferences from among
options that are offered by the technology.
An example is the C1earPlay model. C1earPlay provides so-
called ``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.
Such a model would fall under the liability limitation of the
Family Movie Act.
This limitation, however, 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 could 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 bill also provides additional guidance, if not an exact
definition, of what the term ``making imperceptible'' means.
The bill provides specifically 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 enable 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 House sponsor of this legislation noted in his
explanation of his bill, and the Senate is also aware, that
some copy protection technologies rely on matter placed into
the audio or video signal. 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. This provision does not
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 of title 17.
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.
There are a number of companies currently providing the
type of products and services covered by this Act. The Family
Movie Act is intended to facilitate the offering of such
products and services, and it certainly creates no impediment
to the technology employed by those companies. Indeed, it is
important to underscore the fact that the support for such
technology and consumer offerings that is reflected in this
legislation is driven in some measure by the desire for
copyright law to be respected and to ensure that technology
is deployed in a way that supports the continued creation and
protection of entertainment and information products that
rely on copyright protection. This legislation reflects the
firm expectation that those rights and the interests of
viewers in their homes can work together in the context
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 House-passed bill included an explicit exclusion to the
new section 110(11) exemption in cases involving the making
imperceptible of commercial advertisements or network or
station promotional announcements. This provision was added
on the House floor to respond to concerns expressed by
Members during the House Judiciary Committee markup that the
bill might be
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read somehow to exempt from copyright infringement liability
devices that allow for skipping of advertisements in the
playback of recorded television (so called ``ad-skipping''
devices). Such a reading is not consistent with the language
of the bill or its intent.
The phrase ``limited portions of audio or video content of
a motion picture'' applies only to the skipping and muting of
scenes or dialog that are part of the motion picture itself,
and not to the skipping of commercial advertisements, which
are themselves considered motions pictures under the
Copyright Act. It also should be noted that the phrase
``limited portions'' is intended to refer to portions that
are both quantitatively and qualitatively insubstantial in
relation to the work as a whole. Where any substantial part
of a complete work (including a commercial advertisement) is
made imperceptible, the section 110(11) exemption would not
apply.
The House-passed bill adopted a ``belt and suspenders''
approach to this question by adding exclusionary language in
the statute itself. Ultimately that provision raised concerns
in the Senate that such exclusionary language would result in
an inference that the bill somehow expresses an opinion, or
even decides, the unresolved legal questions underlying
recent litigation related to these so-called ``ad-
skipping'' devices. In the meantime, the Copyright Office
also made clear that such exclusionary language is not
necessary. In other words, the exclusionary language
created unnecessary controversy without adding any needed
clarity to the statute.
Thus, the Senate amendment omits the exclusionary language
while leaving the scope and application of the bill exactly
as it was when it passed the House. The legislation does not
provide a defense in cases involving so-called ``ad-
skipping'' devices, and it also does not affect the legal
issues underlying such litigation, one way or another.
Consistent with the intent of the legislation to fix a narrow
and specific copyright issue, this bill seeks very clearly to
avoid unnecessarily interfering with current business models,
especially with respect to advertising, promotional
announcements, and the like. Simply put, the bill as amended
in the Senate is narrowly targeted to the use of technologies
and services that filter out content in movies that a viewer
finds objectionable, and it in no way relates to or affects
the legality of so-called ``ad-skipping'' technologies.
There are a variety of services currently in litigation
that distribute actual copies of altered movies. This type of
activity is not covered by the section 110(11) exemption
created by the Family Movie Act. There is a basic distinction
between a viewer 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. The section 110(11)
exemption only applies to viewer directed changes to the
viewing experience, and not the making or distribution of
actual altered copies of the motion picture.
Related to this point, during consideration of this
legislation in the House there were 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. 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.
Subsection (b) also provides a savings clause to make clear
that the newly-created copyright exemption is not to be
construed to have any effect on rights, defenses, or
limitations on rights granted under title 17, other than
those explicitly provided for in the new section 110(11)
exemption.
Subsection (c): Exemption From Trademark Infringement
Subsection (c) 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.
In short, this subsection 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. As amended by the Senate, the bill
also makes clear that failure by a manufacturer, licensee, or
licensor of technology to qualify for the exemption created
by this subsection is not, by itself, enough to establish
trademark infringement. Failure to qualify for the safe
harbor from trademark liability merely means that the
manufacturer, licensee, or other licensor of technology
cannot assert an affirmative defense based on this exemption
in a case where trademark infringement or some other
violation of the Trademark Act is established.
Subsection (d): Definition
Subsection (d) provides definitional clarification
regarding short-hand references throughout this section to
the ``Trademark Act of 1946.''
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