[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 14373-14374]
[From the U.S. Government Publishing Office, www.gpo.gov]




               COLLOQUY ON CAMCORDER PROVISION OF S. 1932

  Mr. HATCH. Mr. President, Section 3 of the ART Act establishes a new 
provision of Title 18 entitled, ``Unauthorized Recording of Motion 
Pictures in a Motion Picture Exhibition Facility.'' I ask Senator 
Cornyn, what is the purpose of this provision?
  Mr. CORNYN. Section 3 addresses a serious piracy issue facing the 
movie business: the use of camcorders in a motion picture theater. Sad 
to say, there are people who go to the movie theater, generally during 
pre-opening ``screenings'' or during the first weekend of theatrical 
release, and using sophisticated digital equipment, record the movie. 
They're not trying to save $8.00 so they can see the movie again. 
Instead, they sell the camcorded version to a local production factory 
or to an overseas producer, where it is converted into DVDs or similar 
products and sold on the street for a few dollars per copy. This misuse 
of camcorders is a significant factor in the estimated $3.5 billion per 
year of losses the movie industry suffers because of hard goods piracy. 
Even worse, these camcorded versions are posted on the Internet through 
``P2P'' networks such as KaZaa, Grockster and Morpheus--and made 
available for millions to download. The goal of our bill is to provide 
a potent weapon in the arsenal of prosecutors to stem the piracy of 
commercially valuable motion pictures at its source.
  Mr. HATCH. I have heard it said that this bill could be used against 
a salesperson or a customer at stores such as Best Buy or Circuit City 
if he or she were to point a video camera at a television screen 
showing a movie. Is this cause for concern?
  Mr. CORNYN. Absolutely not. The offense is only applicable to 
transmitting or copying a movie in a motion picture exhibition 
facility, which has to be a movie theater or similar venue ``that is 
being used primarily for the exhibition of a copyrighted motion 
picture.'' In the example of Best Buy--the store is being used 
primarily to sell electronic equipment, not to exhibit motion pictures. 
For the same reason, the statute would not cover a university student 
who records a short segment of a film being shown in film class, as the 
venue is being used primarily as a classroom, and not as a movie 
theater.
  Mr. HATCH. Does the Senator from California agree with our colleague 
from Texas?
  Mrs. FEINSTEIN. Absolutely, on all points.
  Mr. HATCH. I have also heard some say that this statute could be used 
to prosecute someone for camcording a DVD at his home. Is this a fair 
concern?
  Mrs. FEINSTEIN. No, it is not. The definition of a motion picture 
exhibition facility includes the concept that the exhibition has to be 
``open to the public or is made to an assembled group of viewers 
outside of a normal circle of a family and its social acquaintances.'' 
This definition makes clear that someone recording from a television in 
his home does not meet that definition. It is important to emphasize 
that the clause ``open to the public'' applies specifically to the 
exhibition, not to the facility. An exhibition in a place open to the 
public that is itself not made to the public is not the subject of this 
bill. Thus, for example, a university film lab may be ``open to the 
public.'' However, a student who is watching a film in that lab for his 
or her own study or research would not be engaging in an exhibition 
that is ``open to the public.'' Thus, if that student copied an excerpt 
from such an exhibition, he or she would not be subject to liability 
under the bill.
  Mr. HATCH. Do the users of hearing aids, cell phones or similar 
devices have anything to fear from this statute?
  Mrs. FEINSTEIN. Of course not. The statute covers only a person who 
``knowingly uses or attempts to use an audiovisual recording device to 
transmit or make a copy of a motion picture

[[Page 14374]]

or other audiovisual work protected under Title 17, or any part 
thereof. . . .'' In other words, the defendant would have to be making, 
or attempting to make, a copy that is itself an audiovisual work, or 
make, or attempt to make, a transmission embodying an audiovisual work, 
as that term is defined in Section 101 of Title 17. As such, the Act 
would not reach the conduct of a person who uses a hearing aid, a still 
camera, or a picture phone to capture an image or mere sound from the 
movie.
  Mr. HATCH. It appears that there is no fair use exception to this 
provision. Is that correct?
  Mrs. FEINSTEIN. This is a criminal provision under Title 18, not a 
copyright provision under Title 17. Accordingly, there is no fair use 
exception included. However, Federal prosecutors should use their 
discretion not to bring criminal prosecutions against activities within 
movie theaters that would constitute fair use under the copyright laws. 
The object of this legislation is to prevent the copying and 
distribution of motion pictures in a manner that causes serious 
commercial harm. This legislation is not intended to chill legitimate 
free speech.
  Mr. HATCH. Does the Senator from Texas agree?
  Mr. CORNYN. Yes, on all points.

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