SUBSCRIBE NOW!

Vol. 22 No. 7 — Jul/Aug 2005

Almost every legal and policy debate about copyright seems to be centered on technology and piracy. In last month’s issue, I noted that the copyright community—both own­ers and users—has been holding its collective breath while refining lobbying strategies in anticipation of the Supreme Court’s decision about the legality of P2P networks. But other developments in Congress and the courts have already defined the copyright-technology matrix that is sending shivers down the spines of Hollywood producers and directors while renewing their resolve to battle how we access and use copyrighted works.

Last April, Congress passed the Family Entertainment and Copyright Act of 2005 (S.167), an amalgam of three bills from previous Congresses. Title I of the bill sets out criminal penalties for re­cording motion pictures in a movie theater, and Title III reauthorizes the National Film Preservation Board. Title II, the Family Movie Act of 2005, however, establishes new standards for exempting content-altering technologies from infringement.

The Threat of New Technology

The act arose in response to the case of Huntsman v. Soderbergh, which was filed in 2002 and is apparently still pending before the U.S. District Court for Colorado. The case involves technology companies that manufacture and market filtering technologies for consumers to eliminate objectionable content (violence, profanity, and nudity) from DVDs viewed at home. These technological devices, such as ClearPlay, alter what viewers see when they play a disc on a DVD player or DVD-ROM drive. Each software program corresponds to a specific DVD that has been reviewed by ClearPlay, and the filter instructs the player which film frames to mute or skip over without altering the content of the DVD.

The movie studios say these technologies violate their exclusive right to create derivative works. Directors claim the devices violate their moral rights to control the artistic integrity of their works—a concept more prevalent in European law than in the U.S. and one that remains contentious for reciprocal copyright protections.

The new act effectively makes the Colorado case moot. It states that neither individuals nor software manufacturers are liable for copyright infringement if no permanent copy of the filtered movie is created. Similarly, the technology companies cannot be held liable for violating any moral rights as long as they clearly indicate before each viewing that the movie has been altered.

Fallout for the Technology Sector

This legislative defeat for the movie studios probably won’t be too damaging to their bottom line—unless viewers start making and sharing permanent copies of “sanitized” films. But copyright owners—despite the billions of dollars they contribute to the national economy—may face increasing difficulty in convincing Congress to restrain development of another giant national economic engine—the technology sector.

Such congressional support could be crucial if the movie industry has any hope of mitigating the effects of the May decision by the Court of Appeal for the D.C. Circuit in American Library Association v. FCC, the flagship broadcast case. Since 2002, the libraries and the motion picture industry had been at odds over an FCC rule that would have required digital television receivers and other devices manufactured after July 1, 2005, to include technology that recognizes a code embedded by broadcasters. This code would prevent viewers from redistributing (not “re-viewing”) a TV program after its conclusion. The movie studios argued that the rule preserved consumers’ ability to watch and record broadcasts in the sprit of the Sony Betamax standard, while libraries argued that it would impinge on fair use, making it all but impossible to use HDTV materials in distance learning.

Just 2 months before the rule was to become effective, the D.C. Circuit Court determined that the FCC had exceeded its authority in its efforts to regulate the use of consumer electronics products after broadcasts had ended. In other words, because it didn’t deal with Betamaxes or VCRs, the FCC can’t address computers and digital recorders.

The court avoided pronouncements about copyright and fair use. Still, the decision is a blow to the movie and broadcast industries; it threatens their ability to control how their copyrighted materials are used.

There’s no sign that the policy debates and lobbying campaigns over copyright and technology are ending. You have to wonder whether Congress and the courts don’t sometimes want to quote that once-famous southern Californian Rodney King and ask, “Can’t we just all get along?”