PIRACY DETERRENCE AND EDUCATION ACT OF 2004 -- (Extensions of Remarks - October 04, 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.
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 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.