RESPONSES OF MARYBETH PETERS TO POST-HEARING QUESTIONS

FROM REP. HOWARD BERMAN

1. You state that you would prefer not to address the merits of the litigation in Colorado, and have no desire to be drawn into it. Further, you admit to a sketchy understanding of the workings of the products that are the subject of the litigation. Unfortunately, some litigant is almost sure to argue to the court that your testimony represents a definitive opinion on the appropriate outcome of the Colorado litigation. Do you think you know enough about the facts of the case, the ClearPlay technology, and the other technologies involved to definitively state whether the Colorado court should find them infringing or non-infringing?

Answer: I do not pretend to know everything there is to know about the ClearPlay technology, or even to know what is in the record of the Colorado litigation; therefore, I have no views on how the court should rule on the facts of that particular lawsuit. In my testimony, I stated that the conduct that is described in the proposed Family Movie Act is not infringing under current law. If ClearPlay's technology does something other than that which is described in the legislation, then the court might well conclude that it is an infringer.

2. In your written testimony, you describe as "fairly benign" the filtering technology we have been discussing, and state your "conclusion that on balance, the conduct that is addressed by the Family Movie Act should not be prohibited." However, the filtering technology covered by the bill may skip everything but the violence in Gangs of New York, or may cut all references to the Holocaust from a World War II documentary. Do you believe such filtering technology is “fairly benign” when put to these uses? If not, why do you believe that, on balance, such filtering technology should be legal?

Answer: When I characterized the technology involved in one the this legislation as "fairly benign," I probably should have referred to the particular application of that technology that the legislation is intended to address, rather than to the technology itself. I do not believe that all of the uses permitted by the bill would be benign, and I certainly do not believe that the conduct you have described is benign. Certainly a technology that permits deletion of portions of a motion picture could be used in ways that no reasonable person could condone. That is one of the reasons why I oppose the legislation. However, I am not persuaded that use of such technology in such a fashion is unlawful under current law, and I would hesitate to say that it should be unlawful, since I do not believe the law should ordinarily discriminate among applications of technology based on the message that the person using the technology wishes to convey.

3. You say one reason you are comfortable with the conclusion that movie filtering technology should be legal is because “it is difficult to imagine any economic harm to the copyright owner." I don't have the same difficulty. If there is a market for movie filters, that means consumers are willing to pay something above and beyond the cost of a DVD for a sanitized version of the movie. Isn't the copyright holder, who has the exclusive right to reproduce and distribute sanitized versions, suffering economic harm when a filtering company captures that additional revenue?

Answer: Not unless that revenue is revenue that the copyright holder would have a reasonable expectation of capturing, and it does not appear that the motion picture studios currently have any intention to exploit the market for “sanitized" versions of their motion pictures. If motion picture studios do begin to offer such versions, then the case could well be made that the offering of filtering products is causing economic harm to the copyright owners. That is one of the reasons why I believe that if the Family Movie Act is enacted, it should include a sunset provision so that Congress can reevaluate the need for the legislation in a few years. One of the factors that Congress should evaluate at the time would be whether motion picture studios have begun to offer or license such versions of their motion pictures. Also, keep in mind that my interpretation of both current law and the bill preserves the copyright owner's exclusive rights over fixed copies of altered works, and the distribution of such copies may be a more convenient and successful business model for the consumer to obtain and enjoy such versions than the marketing of filtering software.

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

Mr. Chairman,

I must express my opposition to the legislation before us today. Perhaps 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 these concerns, but nothing can address my concerns about its basic premise.

While I believe 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 20, 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 am 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 20 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 20 hearing, are getting farther apart as the prospects for legislation improve.

Since neither ClearPlay nor any of its competitors has 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, 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 to 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.

The sanitization of movies allowed by this legislation may result in the cutting of critically important scenes. For instance, 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.

Further, 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. Anti-tobacco groups could offer a filter that strips all movies of scenes depicting tobacco use. Racists might strip Jungle Fever of scenes showing interracial romance between Wesley Snipes and Annabella Sciorra [SKEE-ORA], perhaps leaving only those scenes depicting interracial conflict. Holocaust revisionists could strip World War II documentaries of concentration camp footage. Fahrenheit 911 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 far-fetched: 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 that 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 two days' reflection. Thus, I hope the Subcommittee will not rush to legislate in this area, and instead will allow the marketplace to address the legitimate concerns of parents.

I yield back the balance of my time.

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY

At the outset, I am embarrassed we are even considering this bill. The Republicans know full well that the directors and ClearPlay are engaged in settlement negotiations to resolve a lawsuit over copyrights; they are using this bill and this second hearing to pressure the directors and help the other side.

In my tenure in Congress, this is only the second time I can remember having a one-sided hearing involving on-going settlement talks; not surprisingly, the first was a few weeks ago on the same issue. Our hearings should be reserved for public policy debates, not for strong-arming private litigants.

It is more troubling considering that we are here to continue the Republican assault on the First Amendment and media content. In the past few months, we've seen Republican overreaction to a televised Superbowl stunt and to radio broadcasts. Now the self-proclaimed moral majority is turning to movies.

Censoring filmmakers would diminish the nature of this medium. Let us not forget that Schindler's List was on broadcast television completely uncut. The movie studio and the broadcasters knew the film could not convey its feeling and authenticity if it was edited. Despite this, the movie has been edited by censors to diminish the atrocities of the Nazi party. Traffic, an acclaimed anti-drug movie, has been edited in a way that makes drug use appear glamorous.

This is not to say that movie fans should be forced to watch the latest Quentin Tarantino movie. People looking for family-friendly fare have countless choices. Parents are inundated with commercials for the latest children's movies. Hollywood has its own ratings system that tells parents which movies are suitable for children and, over the past several years, has increased its output of G- and PG-rated films. Newspaper reviewers make specific mention of family-friendly films. Finally, organizations like Focus on the Family provide information on movies for parents who seek it. In short, there are options.

At the hearing on this bill, we heard our colleagues Rep. Randy Forbes (R-VA) and Rep. John Carter (R-TX) say the government has no business in this issue. The last time I checked, Congress was a part of the government. Having said that, there is a simple solution to this problem. It is a market-based solution that conservatives should like. If a family finds a particular DVD offensive, it should not buy it.

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