Lapas attēli
PDF
ePub

FAMILY MOVIE ACT OF 2004

THURSDAY, JUNE 17, 2004

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY,
COMMITTEE ON THE JUDICIARY,
Washington, DC.

The Subcommittee met, pursuant to call, at 10:07 a.m., in Room 2141, Rayburn House Office Building, Hon. Lamar Smith (Chair of the Subcommittee) presiding.

Mr. SMITH. The Subcommittee on Courts. the Internet, and Intellectual Property will come to order.

I will recognize myself for an opening statement, and the recognize other Members who wish to give opening statements as well. Let me say to you all the I don't know quite how to explain why only one room in the Rayburn Building has had their air conditioning system broken, but apparently we do not have air conditioning in this room, and of course, anybody who wants to, can feel free to take off their jacket if it makes them more comfortable. Like I say, to me, I thought it was a unified air conditioning system, and why one room is lacking, I do not know.

Let me recognize myself for an opening statement.

Today we will hear testimony on legislation that is of vital importance to families across America. It helps ensure that mothers and fathers can provide a wholesome home environment for their children. A generation ago there was not nearly the amount of sex, violence and profanity on television and in movies that there is today. But I still remember how my own parents dealt with it. They had a small box with a switch on it, that they manually clicked to mute the television's audio if they felt it was inappropriate, or they would get up and turn the television off for a moment or two.

These days I don't think anyone would even consider buying a DVD player that doesn't come with a remote control that can be used for the same purpose. Yet, there are some who would deny parents the right to protect their children from sex, violence and offensive language on television.

Raising children may be the toughest job in the world. Parents need all the help they can get, and they should be able to determine what their children see on the screen. Yes, we parents might mute dialogue that others deem crucial, or we might fast forward over scenes that others consider essential, but that's irrelevant. Parents should be able to mute of skip over anything they want if they feel it's in the interest of their children. And as a practical

matter, parents cannot monitor their children's viewing habits all the time. They need an assist.

Companies developing electronic tools to help parents are spending money paying lawyers rather than providing services to families.

It is time for this Committee to act and let parents decide what their children watch. Remote control technology is not some form of evil. If you look at a DVD or a VCR before and after technology has been used to mute or fast forward over offensive material, there would be absolutely no difference in the product. It has been spliced, diced, mutilated or altered. The director's work is still intact. No unauthorized copies have been distributed. No copyright has been violated.

I want to emphasize that the legislation allows the use of technology only for private home viewing. There is no sale of DVD or VCR tapes. No commercialization is involved. Surely a parent can decide in the privacy of their own home what their child can watch on television.

I am pleased to see that the Register of Copyrights agrees that what some companies are doing today is legal under existing law. While she may feel that this makes additional legislation unnecessary, I believe that the financial burden of the ongoing litigation that has been imposed on companies like ClearPlay, that are operating legally, does make legislation necessary. Moreover, there is no certainty that all courts will agree, so the only way to protect the right of parents is in fact to pass legislation.

Let me also point that this issue has been simmering for 18 months since the first lawsuits were filed. I had hoped that the parties would reach a negotiated solution, but none has been forthcoming yet.

Yesterday I introduced H.R. 4586 to resolve this issue by ensuring that parents who skip over mute-skip over or mute content do not face liability under existing copyright or trademark law. Apparently legislation is necessary to end the unnecessary litigation. The Chairman of the Judiciary Committee and I are prepared to move this legislation on a stand-alone basis, whereby attaching it to another legislative vehicle to protect the right of parents to shield their children from violence, sex and profanity.

That concludes my opening statement, and the gentleman from California, Mr. Berman, the Ranking Member is recognized for his. Mr. BERMAN. Thank you, Mr. Chairman. Before I give my opening statement, I just want to point out the irony of proposing legislation that the Register of Copyrights says will legalize that which is already legal in order to save one company some litigation expense, and the parallel of that. Perhaps we can just do away with the judicial system, leave the court clerks so that the lawsuits can be filed, and Congress decides how we think the litigation should come out, and then propose and pass legislation to produce that outcome.

I'm opposed to the legislation before us today. Maybe this hearing will convert me, but I doubt it. I have too many concerns about the nature and implications of this bill. Clever redrafting might address some of those concerns, but nothing can address my concerns about its basic premise.

While I believe that parents should be able to protect their children from exposure to media they find offensive, I don't believe the legislation before us today will advance this goal. In some ways it may have the opposite effect. This legislation sends the wrong message to parents, namely that technology can fulfill parental responsibilities. In our modern world parents cannot control what their kids see and hear every minute of the day. Parents must, as Professor Heins testified on May 20th at our earlier hearing on this subject, parents must equip their children for exposure to offensive media, not just turn on the TV or movie filter and leave the room. Technology should not become an excuse for avoiding the hard work of parenting.

To be clear, I don't oppose the ClearPlay technology itself. Rather, I'm opposed to legislation that benefits one particular business over its competitors and abrogates the rights of copyright owners and trademark holders in the process. The marketplace is the proper forum for resolving this business dispute, not Congress. Congress should focus on encouraging the relevant copyright owners and trademark holders to work out a licensing deal for ClearPlay technology, not roil the waters with legislation that verges on a bill of attainder.

Unfortunately, the legislative activity on this issue appears to have already hampered the industry negotiations. I understand that following the May 20th hearing, ClearPlay presented new demands that represented a significant departure from its previous position in the negotiations. In other words, the positions of the parties, which had been fairly close before the May 20th hearing, are getting farther apart as the prospects for legislation improve. Since neither ClearPlay nor any of its competitors have been found liable for copyright or trademark infringement, this legislation addresses a hypothetical problem. While a Federal District Court has before it a case raising these issues-a case I might add initiated by one of the technology companies, not by one of the copyright holders-it has not yet issued even a preliminary ruling. Furthermore, the Register of Copyright will apparently testify that ClearPlay is likely to succeed. In other words, there is no problem for Congress to correct. While legislation addressing hypothetical problems, like the law protecting fast food restaurants against obesity liability, is all the rage these days. It is not a trend with which I agree.

Most importantly, Congress should not give companies the right to alter, distort and mutilate creative works, or sell otherwise infringing products that do functionally the same thing. Such legislation is an affront to the artistic freedom of creators and violates fundamental copyright and trademark principles. Where the underlying issue, the distinction of proponents of this bill, is this technology doesn't alter or mutilate the fixed product, it just filters out the material that the manufacturer of the technology wants to filter out, that that's a distinction which-that should fundamentally make a difference, doesn't make real sense to me.

The sanitization of movies allowed by this legislation may result in the cutting of critically important scenes. The legislation legalizes the decision of a ClearPlay competitor to edit the nude scenes from Schindler's List, scenes critical to conveying the debasement

and dehumanization suffered by concentration camp prisoners. A close reading of the bill reveals that it will also legalize editing that makes movies more offensive, more violent and more sexual.

Just as the legislation allows nudity to be edited out, it allows everything but nudity to be edited out. For instance, the legislation allows some enterprising pornographer to offer a filter that edits the movie Caligula down to its few highly pornographic scenes and endlessly loops these scenes in slow motion. The legislation would also appear to legalize filters that make imperceptible the clothes of all actors in a movie. Do the bill sponsors really want to legalize all-nude versions of Oklahoma and Superman? The types of edits legalized by this bill are limited only by editorial imagination. Antitobacco groups could offer a filter that strips all movies of scenes depicting tobacco use. Racists might strip Jungle Fever of scenes showing interracial romance, perhaps leaving only those scenes depicting interracial conflict. Holocaust revisionists could strip World War II documentaries of concentration camp footage. Fahrenheit 9/ 11 could be filtered free of scenes linking the houses of Bush and Fahd.

Since the bill also applies to television programming, a number of troubling consequences may result. Digital video recorder services like Tivo, which enable their subscribers to digitally record TV shows for time-shifting purposes, might offer filters geared to those programs. This is not farfetched. At least one DVR service has already tried to filter out all commercials. In the future they might offer filters that cleanse news stories of offensive content, for instance, by editing out comments critical of a beloved politician. In fact, under the bill, the DVR service could unilaterally engage these filters without the permission of the TV viewer, and thus might choose to filter out stories helpful to a corporate competitor or critical of a corporate parent.

I know these outcomes are opposite to the intent of the bill's sponsors, but they are the unavoidable outcomes nonetheless, and these are just a few of the problems that are apparent after just a couple of days of looking at this issue.

I hope the Subcommittee will not rush to legislate in this area and will allow the marketplace to address the legitimate concerns of parents.

I yield back, Mr. Chairman.

Mr. SMITH. Thank you, Mr. Berman. I actually like several of your ideas, particularly the one about editing criticism of popular politicians, but we can save that for another time.

Are there any other opening statements by Members? The gentleman from Florida is recognized for an opening statement.

Mr. KELLER. Thank you, Mr. Chairman. First and foremost, I want to thank all the witnesses for taking time out of your busy schedules to be here.

Just as Berman started to make sense, he trashed my Personal Responsibility in Food Consumption Act that banned lawsuits against fast food restaurants, which I may add passed the Congress by a two-thirds vote, and supported by 9 out of 10 of the American public. If ClearPlay technology had existed and had silenced Berman's remarks on that issue, he almost could have had my vote, I suspected.

But this is an interesting issue that puts me directly in the crosshairs of two competing interests from the area that I represent, Orlando, Florida, which is a very family-oriented youthful community that prides itself on the number one family vacation destination of the world, but is also home to companies such as Disney and Universal, which do have substantial movie-making interests, and so I feel a little bit like a fur sales at an animal rights convention on this issue. [Laughter.]

And in light of the fact that this issue puts me squarely in the cross-hairs of two very friendly groups to me, I appreciate the Chairman holding multiple hearings on this issue. I was just thinking this morning I don't have enough stress in my life, so it's good to keep dealing with this over and over.

I stand here today-and I had to get that full disclosure out of the way in the interest of straight talk-though as someone who is very open-minded on this issue, and appreciates very much the witnesses coming here. I certainly, on the one hand, understand directors and movie companies not wanting to have scenes which they believe are critical to them, edited out, that they may think change the focus of the movie. I also very much appreciate the technology used by companies like ClearPlay that takes movies and makes them all family friendly. I think it is am amazing technology. I think that the Nobel prize should go to people who give our community amazing technology that changes our lives like the George Foreman Grill and stadium seating in movie theaters and [Laughter.]

-technology that makes things family friendly.

So I really appreciate both sides of this issue and look forward to getting better educated on them, and thank the witnesses again for coming here today.

Mr. Chairman, I will yield back.

Mr. SMITH. Thank you, Mr. Keller.

Are there other Members who wish to make opening statements? The gentlewoman from California, Ms. Lofgren.

Ms. LOFGREN. Mr. Chairman, I won't make an extensive statement. I am looking forward to hearing as much of the testimony as I can, and I also wanted to mention how pleased I am to see Mr. Valenti, since he has announced his retirement, and I think it is enormously gracious of him to come by even though he is going on to brighter fields to share his views on this, certainly along with the other witnesses, but thank you very much, Jack.

Mr. VALENTI. Thank you, Ms. Lofgren.

Mr. SMITH. We will proceed, and I will introduce our first witness today who is the Honorable Marybeth Peters, the Register of Copyrights for the United States. Ms. Peters is the author of "The General Guide to the Copyright Act of 1976," and has lectured extensively on copyright law. She received her undergraduate degree from Rhode Island College and her law degree with honors from George Washington University Law Center.

Our next witness is Dr. Amitai Etzioni, who was named the first University Professor at the George Washington University, where he is the Director of the Institute of Communitarian Policy Studies. From 1987 to 1989 he served as the Thomas Henry Carroll Ford

« iepriekšējāTurpināt »