motion picture is played in the privacy of the viewer's home, a quintessential private performance.6 Not surprisingly, the motion picture studios have not asserted claims of infringement of the reproduction, distribution and public performance rights. Rather, they have alleged infringement of the right to prepare derivative works. The analysis of that claim is a little more complex, but ultimately the result is the same: I believe that the arguments that such products infringe the derivative work right are weak. The fundamental flaw in the claim of infringement of the derivative work right is that the only possible manifestation of a derivative work is in the private performance itself. It is true that the home viewer who uses one of these products to remove some of the movie's audio and/or visual content is seeing an altered version of the film. Such a version might appear to be an adaptation, or, in copyright parlance, a "derivative work." But that is not my reading of the law. Section 106(2) of the Copyright Act gives the copyright owner the exclusive right to "prepare derivative works based upon the copyrighted work." The question is, can you have a derivative work when no copy (or "fixation") of the derivative work exists? Is an altered private performance of a motion picture a derivative work when it leaves the copy of the motion picture intact and does not create a copy of the altered version? A review of the legislative history of the 1976 Copyright Act might lead one to the conclusion that the derivative work right can be infringed simply by causing an altered performance of a work. The reports of both the House and Senate Judiciary Committees on the 1976 Act state: Preparation of derivative works. The exclusive right to prepare derivative works, specified separately in clause (2) of section 106, overlaps the exclusive right of reproduction to some extent. It is broader than that right, however, in the sense that reproduction requires fixation in copies or phonorecords, whereas the preparation of a derivative work, such as a ballet, pantomime, or improvised performance, may be an infringement even though nothing is ever fixed in tangible form. H.R. Rep. No. 94-1476, at 64 (1976); S. Rep. No. 94-473, at 58 (1976). I believe that when the House and Senate Reports spoke of derivative works, such as ballets, pantomimes, and improvisations, that are not fixed in tangible form, they were referring to public performances of works in altered form. There are strong policy reasons for recognizing a derivative work right when a work is performed publicly in an altered form, even if the alteration never exists apart from the performance. Certain types of works, such as the works mentioned in the legislative history, are exploited primarily by means of public performance rather than by sale of copies, and to require fixation of the derivative work in order to have infringement of the derivative work right could defeat the very purpose of recognizing a derivative work right. However, while it may have been the intent of Congress not to make infringement of the derivative work right turn on whether the derivative work has been fixed, I do not find that intent expressed in the language of the statute. The exclusive right is a right to "prepare derivative works based upon the copyrighted work." The question then becomes, what is a derivative work? Must a derivative work be fixed in a tangible medium of expression? Certainly in order to qualify for copyright protection, a derivative work-like any work-must be fixed in a tangible medium of expression. 17 U.S.C. § 102(a). But is there a fixation requirement for infringement of the derivative work right? Although one might expect the extensive list of definitions in § 101 of the Copyright Act to include a definition of as fundamental a term as "work," no such definition is exists. However, § 101 does tell us when a work is "created:" A work is "created" when it is fixed in a copy or phonorecord for the first time where; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. If a work is created when it is fixed in a copy or phonorecord for the first time, it is difficult to imagine that the work exists prior to that time. Thus, the Copyright 6 Of course, it is possible to use the filtering products to alter a performance of the motion picture in a public setting, resulting in an infringing public performance. But as I understand it, that is not the typical use, nor are the products that are the subject of this legislation marketed for such use. Moreover, if there were a public performance, it would be an act of infringement not because the performance was altered, but simply because the motion picture was performed in public without the authorization of the copyright owner. Act seems to have the functional equivalent of a partial definition of a work; while it may not tell us everything that we need to know in order to recognize a “work," it does tell us that a work must be fixed in a copy or phonorecord. And if it is a work in progress, then at any point in time, the "work" consists of that which has already been fixed. Because a plain reading of the statute leads to the conclusion that in order to have an infringement of the derivative work right, the derivative work must be fixed, I find it difficult to conclude that there is an infringement of the derivative work right when software instructs a DVD player to mute certain sounds or skip past certain images in a motion picture being played on the DVD. The putative derivative work is never fixed. Moreover, if, as I understand to be the case, the software itself consists of instructions to mute the soundtrack at a point a certain number of minutes and seconds into the performance of the movie, or to skip past the part of the movie that begins at a point a certain number of minutes and seconds into the performance of the movie and ends certain number of seconds later, I find it difficult to characterize that software as a derivative work, since none of the underlying work is actually incorporated into the software. There are other products in the marketplace that serve a similar function, but which are infringing and should not be permitted. For example, I understand that some products on the market consist of videotapes of motion pictures that have had allegedly offensive scenes physically removed from the videotape. In such cases, there is and ought to be a violation of the derivative work right: permanent copies of edited versions of the copyrighted motion pictures are made and distributed. They can also be redistributed, competing in the marketplace with legitimate copies and perhaps ending up in the hands of recipients who aren't even aware that they are edited versions. But it is not the intent of the proposed Family Movie Act to make those products lawful. IS THERE A NEED FOR LEGISLATION? Because I believe that under existing law, the conduct that is addressed by this legislation is already lawful, and because I believe it is likely that the district court in Colorado will come to the same conclusion, I do not believe there is any reason to enact legislation that would make lawful that which already is lawful. I could understand the possible need for legislation if there were substantial doubt as to the outcome of the litigation, or if there was a pressing need to settle the issue once and for all by Congressional action due to an urgent need to permit conduct which people could not engage in unless the legislation were enacted. But no injunction has been entered. The defendants are still producing their products. Indeed, I understand that recently a major consumer electronics equipment manufacturer has begun to distribute a DVD player that has such software preloaded— compelling evidence that the pending litigation has not had a chilling effect. And, given my ambivalence about the desirability of permitting the conduct at issue here, cannot endorse the notion that there is a pressing need to resolve the issue here and now. In fact, the issues raised at this hearing persuade me that we need to reexamine the derivative work right in order to determine whether the approach taken in 1976 still works in the 21st Century, when technological changes may well be making fixation an obsolete concept for purposes of determining when the derivative work right has been violated. While the technology that we have been discussing today is fairly benign, it is not difficult to imagine technologies that, without creating a fixation of a new derivative work, result in performances that do not simply edit out limited portions of the work that many viewers would find offensive, but either add new material or result in a rendition of the copyrighted work that so changes the character or message of that work that it constitutes an assault on the integrity of the work. The marketing and use of such technologies should not be tolerated, and I strongly believe that any legislation that affirmatively permits the use and marketing of the technologies we are discussing today should also expressly prohibit the use and marketing of technologies that result in performances of those more harmful alterations of a work. Rather than enact narrow legislation that would create a safe harbor for the technologies that simply mute and skip content, a safe harbor that—as I have already explained-we do not urgently need, I believe we should take a little more time and give a little more thought to the extent to which the derivative work right should require fixation as a prerequisite for infringement. As I have already noted, Congress's original, but apparently unrealized, intent was that there need not be a fixation of the work in order to infringe the derivative work right. We should take a fresh look at that judgment and ask under what circumstances, if any, fixation should be a requirement. For example, I believe that fixation should not be required in order to infringe the derivative work right in cases where there is a derivative public performance-e.g., of a play, or a ballet, the types of performances that were addressed in that part of the legislative history that stated that there "may be an infringement even though nothing is ever fixed in tangible form." Whether fixation should be a requirement in order to infringe the derivative work right where there is a only private performance may require a more nuanced approach, looking at the nature of the alteration from the original work. The result of such a study might be an amendment could be in the form of a new definition of "to prepare derivative works based upon the copyrighted work" to be added to section 101. Assuming that you do decide to enact legislation now, I will now turn to the specific legislative text that has been proposed. THE FAMILY MOVIE ACT The Family Movie Act would amend section 110 of the Copyright Act to provide that it is not an infringement of copyright for the owner or lawful possessor of an authorized copy of a motion picture to make limited portions of audio or video content of the motion picture imperceptible in the course of private home viewing of the motion picture. It further provides that the use of technology to make such audio or video content imperceptible is not an infringement. In order to qualify for the exemption, no fixed copy of the altered (i.e., edited) version of the motion picture may be made. "Private home viewing" would be defined as viewing for private use in a household, by means of consumer equipment or services that are operated by an individual in that household and that serves only that household. This definition is adapted from the definition of "private home viewing" found in section 119 of the copyright law, the statutory license for secondary transmissions of television broadcast signals by satellite carriers. The legislation would codify what I believe is existing law: A consumer would be permitted to use technology, such as the software that we have been discussing, that automatically mutes parts of the soundtrack of a motion picture or fast-forwards past a part of the audiovisual content of the motion picture when the consumer is playing a lawfully acquired copy of the motion picture in the privacy of his or her own home. Not only would the consumer's use of that technology be noninfringing, but the manufacture and sale of that technology would also be noninfringing, to the extent that it enables the muting or fast-forwarding. The legislation would also provide that it is not a violation of the Lanham Act to engage in such conduct, but that to qualify for this immunity the manufacturer of the technology must provide a clear and conspicuous notice that the performance of the motion picture is altered from the performance intended by the director or copyright holder. Mr. Chairman, as I have already stated, I do not believe that this legislation is necessary or desirable at this time. But if the subcommittee disagrees, then I believe that the language that you have drafted is a reasonable means of accomplishing your goals. Mr. SMITH. Thank you, Ms. Peters. STATEMENT OF AMITAI ETZIONI, FOUNDER AND DIRECTOR, THE INSTITUTE FOR COMMUNITARIAN POLICY STUDIES, GEORGE WASHINGTON UNIVERSITY Mr. ETZIONI. Mr. Chairman, Members of the Committee, I greatly appreciate the opportunity to testify, and I strongly favor this bill. My main problem is, Mr. Chairman, that most of what I was going to say you already said, so let me try not to repeat too much of your well taken points. I studied this matter for more than 40 years, not the new technology, but the need the protect our children from violent and vile material, first at Columbia University, then the year I served in the Carter White House, and most recently we prepared a special issue of the Chicago Kent Law Review to examine the first amendment issues, which allegedly are involved here, including the Heins argument that even minors at age 1 or 2 have full court first amendment rights, and nobody can protect them from any vile or violent material. Otherwise, their first amendment rights are, we are told, being abridged. The data is unmistakable, violence and one of the merits of this bill, it covers not just pornography but also violence. Violence causes enormous harm to children. Our culture is awash in video games, movies, music which encourages violence, and by any sort of scientific measure, it's made children more predisposed to violent acts themselves, to drug abuse, to misbehaving in school. I don't want to take all the time to make-to list 1100 studies which show the harm done to children, especially by violence. The argument that we cannot distinguish creative violence, which is essential to the story, from gratuitous violence, is completely unsustainable. Courts and other people have found very clear criteria to distinguish violence which adds nothing to the story, is just added to the movie so it will sell better in countries that don't speak English or for other gratuitous reason. The only word I would like to add the your opening statement is parents don't only have a right, they have a duty to shape the educational environment of their children. That's what parenting is all about. So the notion-especially about young children, age up to 12-that parents would-that they should leave them exposed to whatever the media puts in there, and that they're not allowed any help against it, I find undermining parents' ability to shape the educational environment of their children. I choose I have five sons. I choose the books they read, when they're young, when they once reach 12 or later, they make their own choices. I choose the school to send them to. I go to my board meetings of the school to participate in shaping what the school teaches them. And in the end, these are just minor forces countering the flood, which will not stop. So if we do not allow this technology to work, all we're going to do, we're going to leave all the other sources of media, video games and such, which reach our children, in place. And we're not allowed one of the few tools which allow parents to somewhat, help them somewhat in defending their children. The same fallacious arguments have been raised against other technologies. We were told when the V-chip was introduced, that it's going to be the end of the world. When ratings were introduced to the movies we were told that that's going to be end of creative skills. The evidence simply shows that no harm was done to the creative industry, but you slightly help parents to protect their children. I see no, nothing wrong if TiVo or anybody else would, as a next step, make it easier to acquire edited versions, exactly as defined, for use in the private home, and maybe one day the industry will get around to issue us age-appropriate products, to allow us to buy videotapes and DVDs which are marked, "These have been cleaned up for children 12 and younger," "Those are suitable for adolescents," and "Those are suitable for everybody else." Let me say in summary, I'm strongly in favor of the bill as drafted. Let me add as a footnote, if I may, as a Jew, I very much regret you drawing the Holocaust into this, Mr. Berman. [The prepared statement of Mr. Etzioni follows:] PREPARED STATEMENT OF AMITAI ETZIONI ON PROTECTING CHILDREN FROM SPEECH AMITAI ETZIONI✶ INTRODUCTION When freedom of speech comes into conflict with the protection of children, how should this conflict be resolved? What principles should guide such deliberations? Can one rely on parents and educators (and more generally on voluntary means) to protect children from harmful cultural materials (such as Internet pornography and violent movies) or is government intervention necessary? What difference does historical context make for the issue at hand? Are all minors to be treated the same? What is the scope of the First Amendment rights of children in the first place? These are the questions here explored. The approach here differs from two polar approaches that can be used to position it. According to a key civil libertarian position, materials that are said to harm children actually do not have such an effect, and even if such harm did exist, adults should not be reduced to reading only what is suitable for children. Hence, as long as speech qualifies as protected for adults, it should be allowed.' In short, the First Amendment should trump other considerations.? University Professor, George Washington University; Director of the Institute for Communitarian Policy Studies and editor of the quarterly journal The Responsive Community; author of MY BROTHER'S KEEPER: A MEMOIR AND A MESSAGE (2003); former president of the American Sociological Association and Senior White House Advisor duing the Carter Administration. I am indebted to Marjorie Heins and Nancy Willard for several corrective comments on a previous draft of this Article, and especially to Eugene Volokh for very encompassing and thorough criticisms. I am greatly indebted to Mackenzie Baris for extensive research assistance and editorial suggestions, as well as to Elizabeth Jarvis, Deirdre Mead, and Amanda Roberts. 1. See Combined Proposed Findings of Fact of the ACLU and ALA Plaintiffs, ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) (Nos. 96-963, 96-1458), available at http://archive.aclu.org/issues/cyber/trial/finding.htm. 2. Civil libertarians find very little speech they would agree to bar. For instance, they hold that using children to make child pornography is indeed a crime because children are abused, but once a tape is made, it should not be suppressed since the children were already harmed and suppressing the tape would create a precedent for limiting speech. Thus, when the Supreme Court upheld a New York state statute making the sale of child pornography illegal, the ACLU's Jack Novik denounced child pornography as "ugly, vicious stuff” that should be fought |