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motion picture house, hundreds of thousands of pieces of paper would be involved.
After having spent a great deal of time considering this issue, I believe the objectives of H.R. 3158 can be accomplished by any one of three options:
(1) the motion picture industry through each of its representative companies could issue a blanket license for nominal consideration to each facility that meets the definition and conditions
set out in H.R. 3158 a proposal that Senator Roth and I suggested to the industry by letter dated March 29, (a copy of which is included with this statement); (2) the motion picture industry and the health care industry would enter into a binding agreement concerning video viewing the parties were close to reaching such an agreement during our negotiations; or (3) H.R. 3158 could be enacted by Congress. As I mentioned earlier, the motion picture industry has suggested a possible fourth option -- a "gift." This option could be acceptable if there were some way that the "gift" would be legally binding in the industry
and afford nursing home operators the protections that they deserve.
One personal observation I believe is in order.
involved in this issue have devoted an extraordinary effort to resolve this issue. To all of these individuals, I would like to express my
The Motion Picture Association of America has spent a great deal
of time and energy on this issue.
They have faced the difficult task
of trying to get eight large companies to agree on a single issue.
we all know, this is a monumental task.
The American Health Care
Association, the American Association of Homes for the Aging and the National Association of Activity Professionals have all worked hard,
through hours of long meetings and discussions, even in the wee hours before this hearing, to come to some solution. Senator Roth's staff
person, Frank Polk and my staff person, Shelly Hettleman, have worked hard to bring both sides together. I would also like to thank Mike
Remington, subcommittee counsel, for his attention and assistance in
I would appreciate it if the subcommittee would carefully consider my remarks and those of all parties that will follow. opinion, all parties have, in good faith, been attempting to arrive at a reasonable solution. Because of your action in scheduling this hearing, we have made substantial progress toward a settlement of this
Mr. KASTENMEIER. Certainly we had hoped, given the disposition of the parties, that something could be amicably achieved in terms of a resolution of this question, although I think both of you raise substantial concerns.
You suggest a possibility of issuing a blanket license, or alternatively, an agreement, or enactment of a bill. Or I suppose, a fourth possibility would be litigation; litigate it and see what the language actually means. That probably would be time-consuming and I think neither the studios nor the people who reside in nursing homes would like to wait on litigation for a response to this question.
One of the problems is that the individual studios who have been in touch with you have said, of course, we can't get together. Sure, I suppose our communications to you in terms of how this might be resolved with respect to this particular studio are different than another one, but we can't really get together because it would be, we think, a possibility of violating the antitrust laws.
Do you accept that as a valid explanation?
Mr. CARDIN. No. I know they're concerned about that, but I believe when they are responding to a request from Congress, they are permitted to work together toward a legislative solution, or to work in response to a request from Congress. I know they have expressed this antitrust concern. I am aware that once before this committee has requested from the Attorney General a business review exception to allow industries to meet together in order to respond to a congressional inquiry. So I am hopeful we can find some more comfort for the industry.
I don't perceive it as a problem, but I know they perceive it as a problem. They have expressed that to me on several occasions. We have been working under the disadvantage of getting individual letters from the various motion picture companies and they have differed. One of the matters we must have is uniformity in definition.
Mr. KASTENMEIER. If this committee or other appropriate congressional authority should ask the Justice Department to waive the possible application of antitrust rules with respect these companies and for this purpose, would you have any objection, either you or Senator Roth?
Mr. ROTH. No. Let me say that is a procedure that is used from time to time. It would be fine insofar as I'm concerned.
I have to agree with Congressman Cardin. I really don't see an antitrust problem here. I think there is ample precedent in dealing with the Congress on this.
But let me make this observation, if I might, Mr. Chairman. Even if they didn't want to do it jointly, there has been the opportunity afforded them to enter into agreements separately that would not raise antitrust implications. But, in any event, I don't see that as a real problem. I sometimes think it's used as a "red herring.” But whatever approach the chairman wants to use, including going to the Justice Department, would be satisfactory to me.
Mr. KASTENMEIER. I think the elements you describe as being of concern are reasonable elements. I'm wondering, in terms of an
agreement, if this were an agreement by the parties, what would the motion picture companies receive in consideration?
Mr. Cardin. One of the motion picture companies has suggested that perhaps the consideration could be the donation made by the nursing home or its agent-it could be the health care association-to a charity designated by the motion picture company. It would be a nominal amount of money, but it would be true consideration and enforceable as far as an agreement is concerned.
Mr. KASTENMEIER. I want to commend you both, and those who have worked with you, for your obviously diligent work in this regard. You have contacted a number of studios, or they've been in touch with you, which is upward of some eight major studios that have expressed some form of willingness to enter into this or make this concession. Is that correct?
Mr. Roth. We haven't heard from all of them, Mr. Chairman. I think we have not heard from two of the major studies. We have had a number of responses with respect to the others, and we have included those letters as part of the record. In some cases they have indicated they would not sue and would permit video viewing, but for the reasons I set forth, as well as Congressman Cardin, we don't see that as satisfactory.
One or two, or maybe three, have indicated an interest in issuing some kind of a license.
Mr. KASTENMEIER. On their part-and, of course, I will ask them-there is some indication that most, if not all, copyrighted materials in cassette form would be thus available. However, I got the feeling that this did not necessarily include all, not 100 percent, of their portfolio or their catalog.
What limitations might there be in terms of what works they would release to nursing homes on this basis?
Mr. Roth. Well, Mr. Chairman, if all eight studios signed on--of course, it would be 100 percent as far as those companies were concerned. But there are undoubtedly a few others that have copyrights in addition, too, so there would be a certain number of videos that would not be covered. But I think if we could get agreement by the major studios, obviously that would be a giant step forward.
Mr. KASTENMEIER. I have one last question and then I'll yield to my colleagues.
In the event we go to legislation, we have to get into very careful analysis of the language. One question is the definition of where this display may occur, whether it's in a hospital, hospice, nursing home, retirement home, or other such group home. Then we get into question of who's included and who isn't.
A group home of young people, maybe they're disabled, they would qualify, but a group home of young people who were in a dormitory without a health problem would not be covered, for example?
Mr. CARDIN. There are two major additional requirements. One is that it must be health-related services that are provided, as you pointed out, and it must be the person's residence. So we are talk
about two standards. I think you're correct; it's not easy to draw a definition. We tried
narrowly that you run into a problem where you have some innovative type of a nursing facility that someone says is not under the strict definition. But it would need to be a place where health carerelated services are provided, and it must be the person's residence.
Mr. KASTENMEIER. For example, Boys Town would not be included?
Mr. CARDIN. No.
Mr. KASTENMEIER. And it does not matter whether this institution is a public institution, a private institution, or a church-related institution; they're all included?
Mr. CARDIN. That's correct.
Mr. Roth. I think it's important to reemphasize what we're seeking to do, which is really to provide fair and equal treatment. That means we have to define the word "home" in such a manner that it covers those who may not live in what we traditionally think of as a home, but is—as my letter from the residents of Bissell Hospital very eloquently points out-the senior citizen's home. So what we are seeking here is a solution to that particular problem. I do want to emphasize that really what we're seeking is fair and equal treatment.
Mr. KASTENMEIER. I understand.
Mr. MOORHEAD. Thank you, Mr. Chairman. Senator Roth, it's very good to have you here today.
Mr. Roth. Thank you.
Mr. MOORHEAD. And, Congressman Cardin, it's good to have you back here with us.
You certainly are working on a very commendable area, because I know how it is when people find themselves in homes of the sort that you're discussing. They don't have that much to look forward to and it's nice for them to have something.
I would say this, however, about the motion picture studios. They have been bit by antitrust proceedings on occasion. Their lawyers are a little bit gun shy from what has happened, so obviously they don't want to take any big risks. I think the idea of going to the Attorney General and getting him to sign off is a very good idea. I think I would be a little gun shy if I were them, too, as far as working together on this, unless there is such a release. So I hope that can be obtained.
Mr. Roth. Could I just make an observation? I agree with you, that we're not asking nor do we want to put anyone at risk with respect to antitrust. The one concern that I have in this whole area is that a year-and-a-half has gone by since this problem, at least as far as my office is concerned, first arose. I hope it's a matter that will be treated as expeditiously as possible.
As you pointed out, this is one of the few enjoyments that really is feasible for many of these people, so I think time is of the essence. I would hope, whether we go to the Attorney General, which is certainly satisfactory with me, or whatever, that we do seek a