The Family Movie Act of 2004
The Family Movie Act of 2004
Legislation
By: United States Congress
Date: June 16, 2004
Source: Library of Congress. "Family Entertainment and Copyright Act of 2004." 2004 〈http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.4586.RH:〉 (accessed June 120, 2006).
About the Author: The United States Congress is the law-making branch of the federal government.
INTRODUCTION
Although artistic creation is frequently its own reward, artists often create in the hope of profiting from their work. Writers, composers, and film makers invest their time and effort in the expectation that they will be rewarded if their creation is appreciated by others. In most developed nations, this reasonable expectation is guaranteed by copyright law. A copyright, literally the right to reproduce or copy a work, is guaranteed to the work's creator by the U.S. Constitution for a length of time, which varies depending on the type of work. The framers of the Constitution recognized that copyright law provides an incentive for creativity, since it guarantees ownership and control to a work's creator.
In contrast to U.S. law, other countries have weak or poorly enforced copyright laws. In such countries, name-brand merchandise is frequently copied and sold at extremely low prices; commercial software in particular is often sold for a few dollars a copy, giving software developers little incentive to enhance their products. China, the world's most populous nation, was forced to tighten its copyright laws in 2001 to gain admittance to the World Trade Organization. Copyright enforcement in China remains lax, however, and in 2005 was the world's largest supplier of illegally copied, or bootleg software; analysts estimated that ninety percent of the software in use in China at that time was unlawfully copied.
Copyright law specifically prohibits another party from duplicating and reselling a copyrighted product; consumers may not legally make copies of a DVD and resell them, and the motion picture industry aggressively prosecutes merchants who traffic in stolen movies. But copyright law is less clear regarding whether a consumer may make changes to a copyrighted work he has purchased. More specifically, does a consumer who has purchased a licensed copy of a movie or song have the right to alter it for his own enjoyment?
In 2001, a Los Angeles firm called ClearPlay announced a new type of filtering software. When installed on a home DVD player, the software allowed viewers to select specific types of content to filter; the software would then instruct the DVD player to skip past or mute the objectionable content. ClearPlay's technology was designed for parents who wanted to let their children view a wide variety of movies without being exposed to explicit language, violence, or sexuality.
ClearPlay's technology appeared to avoid the legal difficulties of some other solutions to this dilemma. CleanFlicks, a Utah-based firm, purchases licensed movies on DVD, edits the content and sells the edited versions; the Directors Guild of America has filed suit against the firm, which countersued. CleanFlicks argued that it purchases and owns an original copy of each edited DVD it produces, guaranteeing studios the same income they would normally receive. Hollywood producers argue that editing their movies violates their legal right to control the form of their product. In response to this David-and-Goliath battle between Hollywood and movie editors, Congress weighed in, passing the Family Movie Act of 2004, which was passed the following year as part of the Family Entertainment and Copyright Act of 2005.
PRIMARY SOURCE
Family Movie Act of 2004
108th CONGRESS
2d Session
H. R. 4586
[Report No. 108-670]
To provide that making limited portions of audio or video content of motion pictures imperceptible by or for the owner or other lawful possessor of an authorized copy of that motion picture for private home viewing, and the use of technology therefor, is not an infringement of copyright or of any right under the Trademark Act of 1946.
IN THE HOUSE OF REPRESENTATIVES
June 16, 2004
Mr. SMITH of Texas (for himself and Mr. FORBES) introduced the following bill; which was referred to the Committee on the Judiciary …
A BILL
To provide that making limited portions of audio or video content of motion pictures imperceptible by or for the owner or other lawful possessor of an authorized copy of that motion picture for private home viewing, and the use of technology therefor, is not an infringement of copyright or of any right under the Trademark Act of 1946.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the 'Family Movie Act of 200'
SEC. 2. EXEMPTION FROM COPYRIGHT INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO CONTENT OF MOTION PICTURES.
Section 110 of title 17, United States Code, is amended—
(1) in paragraph (9), by striking 'and' after the semicolon at the end;
(2) in paragraph (10), by striking the period at the end and inserting '; and'; and
(3) by inserting after paragraph (10) the following:
'(11)(A) the making of limited portions of audio or video content of a motion picture imperceptible by or for the owner or other lawful possessor of an authorized copy of that motion picture in the course of viewing of that work for private use in a household, by means of consumer equipment or services that are operated by an individual in that household and serve only such household; and
'(i) are operated by an individual in that household;
'(ii) serve only such household; and
'(iii) do not create a fixed copy of the altered version; and '(B) the use of technology to make such audio or video content imperceptible, that does not create a fixed copy of the altered version.'
SEC. 3. EXEMPTION FROM TRADEMARK INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO CONTENT OF MOTION PICTURES.
'Section 32 of the Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding at the end the following:
'(3)(A) Any person who engages in the conduct described in paragraph (11) of section 110 of title 17, United States Code, and who complies with the requirements set forth in that paragraph is not liable on account of such conduct for a violation of any right under this Act.
'(B) A manufacturer of technology that enables the making of limited portions of audio or video content of a motion picture imperceptible that is authorized under subparagraph (A) is not liable on account of such manufacture for a violation of any right under this Act. Such manufacturer shall ensure that the technology provides a clear and conspicuous notice that the performance of the motion picture is altered from the performance intended by the director or copyright holder of the motion picture.
'(C) Any manufacturer of technology described in sub-paragraph (B) who fails to comply with the requirements of subparagraph (B) with respect to a motion picture shall be liable in a civil action brought by the copyright owner of the motion picture that is modified by the technology in an amount not to exceed $1,000 for each such motion picture.'
SEC. 4. DEFINITION.
In this Act, the term 'Trademark Act of 1946' means the Act entitled 'An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes', approved July 5, 1945 (15 U.S.C. 1051 et seq.).
SIGNIFICANCE
The Family Movie Act was eventually combined with other legislation addressing movie copyright issues to form the Family Entertainment and Copyright Act of 2005, which President Bush signed into law. It provides an exemption to federal copyright for the sale and use of software that selectively filters portions of a copyrighted work; this exemption applied only in cases where no permanent copy of the edited version is created. As passed, the law appears to protect ClearPlay's filtering system and similar products, but not CleanFlicks and other firms that produce permanently altered copies of a movie.
The fundamental purpose of copyright law is to protect the commercial value of a created work; one simple test of reasonable use is whether that use will reduce sales or the artist's potential income from the copyrighted work. For example, purchasing one music CD and making copies for six friends clearly reduces the chance that those friends will buy their own copies, thus reducing the artist's income potential.
In the present case, editing companies operate a system that leads to additional sales of a copyrighted work and additional income for the copyright holder. While this fact does not address the underlying issue of altering and copying a protected work, it does provide some support for the firms' claims that their actions are noninfringing. Supporters of ClearPlay and other movie-filtering systems also argue that studios have always offered edited versions of their films for use on commercial airline flights; to object to someone else editing the same movie for a similar reason appears disingenuous.
In 2005, in an ironic twist to the case, actor and producer Mel Gibson sued CleanFlicks for editing three minutes from his blockbuster film, The Passion of the Christ. As of 2006, the cases against ClearPlay and CleanFlicks remained unresolved. At least one other producer of edited feature films left the business the previous year under mounting legal pressure from Hollywood studios.
FURTHER RESOURCES
Books
Moul, Charles, ed. A Concise Handbook of Movie Industry Economics. Cambridge, UK: Cambridge University Press, 2005.
Schechter, Roger, and John Thomas. Intellectual Property: The Law of Copyrights, Patents and Trademarks. St. Paul, MN: Thomson/West Group, 2003.
Van Tassel, Joan. Digital Rights Management: Protecting and Monetizing Content. Woburn, MA: Focal Press, 2006.
Periodicals
Edwards, Cliff, et al. "Daggers Drawn over DVDs." Business Week. (Oct 6, 2005):92-96.
Goodman, Ellen. "Screen Screams: Why Are the Super-Sanitizers Winning the Culture Wars?" The Oregonian. (August 7, 2005).
Pascopella, Angela. "Lights, Camera … Oh, Do You Have a License?" District Administration. 38 (2003): 15.
Web sites
Cinematical. "Gibson Sues CleanFlicks." June 9, 2006 〈http://www.cinematical.com/2005/11/21/gibson-sues-cleanflicks/〉 (accessed June 19, 2006).
Recording Industry Association of America. "Brief History on Copyright Laws." 〈http://www.riaa.com/issues/copyright/history.asp〉 (accessed June 20, 2006).
Washington Times. "Film Ratings for Violence Labeled as Meaningless." 2005 〈http://www.washingtontimes.com/national/20050503-122314-4473r.htm〉 (accessed June 19, 2006).