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BEFORE THE 

SUBCOMMITTEE ON COMMERCE, TRADE, 

AND CONSUMER PROTECTION 

OF THE 

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

SEPTEMBER 26, 2006 

Serial No. 109-144 

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COMMITTEE ON ENERGY AND COMMERCE 

JOE BARTON, Texas, Chairman 

RALPH M. HALL, Texas 

MICHAEL BILIRAKIS, Florida 

 Vice Chairman 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

PAUL E. GILLMOR, Ohio 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

CHARLIE NORWOOD, Georgia 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. “CHIP” PICKERING, Mississippi 

 Vice Chairman

VITO FOSSELLA, New York 

ROY BLUNT, Missouri

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

C.L. “BUTCH” OTTER, Idaho 

SUE MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

JOHN D. DINGELL, Michigan 

 Ranking Member 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

SHERROD BROWN, Ohio 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

TED STRICKLAND, Ohio 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JIM DAVIS, Florida 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

BUD ALBRIGHT, Staff Director 

DAVID CAVICKE, General Counsel

REID P. F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION 

CLIFF STEARNS, Florida, Chairman 

FRED UPTON, Michigan 

NATHAN DEAL, Georgia 

BARBARA CUBIN, Wyoming 

GEORGE RADANOVICH, California 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

C.L. “BUTCH” OTTER, Idaho 

SUE MYRICK, North Carolina 

TIM MURPHY, Pennsylvania 

MARSHA BLACKBURN, Tennessee 

JOE BARTON, Texas 

 (EX OFFICIO)

JAN SCHAKOWSKY, Illinois 

 Ranking Member 

MIKE ROSS, Arkansas 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

SHERROD BROWN, Ohio 

BOBBY L. RUSH, Illinois 

GENE GREEN, Texas 

TED STRICKLAND, Ohio 

DIANA DEGETTE, Colorado 

JIM DAVIS, Florida 

CHARLES A. GONZALEZ, Texas 

TAMMY BALDWIN, Wisconsin 

JOHN D. DINGELL, Michigan 

 (EX OFFICIO) 

(II)
CONTENTS 

Page 

Testimony of: 

Aho, Bill, Chief Executive Officer, ClearPlay, Inc. .......................................................... 12 

Erb, Allan L., President, CleanFlicks Media, Inc............................................................... 17 

Feehery, John, Executive Vice President, External Affairs, Motion Picture Association 

of America...................................................................................................................... 21 

Bronk, Robin, Executive Director, The Creative Coalition................................................ 25 

Schultz, Jason, Staff Attorney, Electronic Frontier Foundation......................................... 28 

(III) 

(1) 

EDITING HOLLYWOOD’S EDITORS: 

CLEANING FLICKS FOR FAMILIES 

TUESDAY, SEPTEMBER 26, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON COMMERCE, TRADE,

AND CONSUMER PROTECTION, 

Washington, DC. 

The subcommittee met, pursuant to call, at 2:06 p.m., in Room 2322 

of the Rayburn House Office Building, Hon. Cliff Stearns (Chairman) 

presiding. 

 Members present: Representatives Radanovich, Bass, Murphy, 

Blackburn, Barton (ex officio), Schakowsky and Green. 

 Staff present: Chris Leahy, Policy Coordinator; Will Carty, 

Professional Staff Member; Shannon Weinberg, Counsel; Brian 

McCullough, Professional Staff Member; Jonathon Cordone, Minority 

Counsel; Jonathan Brater, Minority Staff Assistant; and Billy Harvard, 

Legislative Clerk. 

 MR. STEARNS. Good afternoon. The subcommittee will come to 

order. 

 Our hearing today, in very simple terms, is about control--the control 

of an artist, in this case, a filmmaker, over artistic expression and the 

control of parents over the content of that artistic impression for home 

viewing by their children and their families. 

 I believe there is no greater job than being a parent caring for your 

children and families as best you can. In a society that is absolutely 

saturated with media content on television, on the Internet, on the radio, 

the movies, empowering parents and giving them more control over what 

their children hear, see and read is becoming increasingly difficult, 

challenging, but again is exceedingly important. Year after year parental 

controls have become more and more complicated. Although I think the 

MPAA ratings system has done a pretty good job over the years, other 

industry ratings systems seem to get more and more confusing and a lot 

less rigorous at examining the content the consumer actually will be 

exposed to. 

 There is no better way to empower parents and provide them the 

control they deserve than by allowing them access to the technology and 

products that filter out sex, violence and other objectionable material 

they believe their kids can do without. In fact, I doubt there is a parent 
2

out there who wouldn’t welcome a little extra help protecting their 

children from this pervasive violence and sex in the media that touches 

their children almost every day. It is about time we provide parents a bit 

more involvement in the decision-making about what their children see 

in movies rather than surrendering that extremely important 

responsibility exclusively to others with different priorities. 

 I think the steps made in the Family Entertainment Copyright Act of 

2005 were in the right direction and gave parents more power and control 

to protect their children from objectionable content by, for example, 

allowing ClearPlay’s filtering technology. Today I would like to 

understand better why and how CleanFlick’s approach of editing a 

legally-purchased copy of a movie for violent and sexual content and 

selling it as a clearly labeled edited copy at a higher price would hurt or 

hinder Hollywood’s bottom line and artistic expression. These edited 

copies are viewed privately and they are purchased legally. It seems that 

these products simply allow parents to protect their children from 

inappropriate content without having to wear out the fast forward button 

on the DVD player or buy more-expensive filtering technology. 

 My focus today is also to address how and why these innovative 

approaches and technologies that help better protect children from 

violent and sexual content can hurt content producers’ bottom line and 

creativity other than giving American parents more control over their 

bottom-line responsibility when it comes to reviewing what is present in 

the movies they view with their children in their own home. The fact is 

that the released films are all available to view in their entirety without 

edit if one simply chooses to do so. 

 As I have said many times during a number of our hearings on fair 

use and content regulation, I believe technology can provide a solution 

that will satisfy the rights both financial and artistic of content producers 

like the filmmakers and studios as well as provide parents with the 

control they deserve over the content they purchase for family viewing in 

their own homes. In fact, by providing this control of content to family 

consumers, some have argued that you are opening up a whole new 

potential market for artistic work rather than waiting for something to 

start appearing in the wild of the Internet or on the black market. So I 

think pushing the market to find more novel ways to provide parents 

more control over what their children watch in movies is essential as 

media content, both the best and the worst, slowly finds its way into 

every facet of our lives and into the lives of our children. 

 I would like to say that we did invite the head of the Motion Picture 

Association, Mr. Dan Glickman, to be here and the Directors Guild of 

America to be with us today but unfortunately they declined, and I called 

Mr. Glickman personally. Therefore, I would like to especially thank all 
3

of you for joining us today and particularly the person representing the 

Motion Picture Association, Mr. Feehery, for his kindness in coming and 

standing in for Mr. Glickman. 

 So this is an important issue and I appreciate all of you being here 

and I look forward to the testimony of our distinguished panel. 

 With that, I recognize the Ranking Member, Ms. Schakowsky. 

 [The prepared statement of Hon. Cliff Stearns follows:] 

PREPARED STATEMENT OF THE HON. CLIFF STEARNS, CHAIRMAN, SUBCOMMITTEE ON 

COMMERCE, TRADE, AND CONSUMER PROTECTION

 Good afternoon. Our hearing today, in very simple terms, is about control – the 

control of an artist, in this case a filmmaker, over artistic expression, and the control of 

parents over the content of that artistic expression for home viewing by their children and 

families. I believe there is no greater job than being a parent and caring for your children 

and families as best as you can. In a society that is absolutely saturated with media 

content – on television, on the Internet, on the radio, and in the movies – empowering 

parents and giving them more control over what their children hear, see, and read is 

becoming increasingly challenging but exceedingly important. Year after year, parental 

controls have become more and more complicated. Although I think the MPAA ratings 

system has done a pretty good job over the years, other industry content ratings systems 

seem to get more and more confusing and a lot less rigorous at examining the content the 

consumer actually will be exposed to. There is no better way to empower parents and 

providing them the control they deserve than by allowing them access to the technology 

and products that filter out sex, violence, and other objectionable material they believe 

their kids can do without. In fact, I doubt there is a parent out there who wouldn’t 

welcome a little extra of help protecting their children from the pervasive violence and 

sex in the media that touches their children every day. And let’s be honest, it’s about 

time we provide parents a bit more involvement in the decision making about what their 

children see in movies rather than surrendering that extremely important responsibility 

exclusively to others with different priorities. 

I think the steps made in the Family Entertainment Copyright Act of 2005 were in 

the right direction and give parents more power and control to protect their children from 

objectionable content by, for example, allowing ClearPlay’s filtering technology. Today, 

I’d like to understand better why and how Clean Flick’s approach of editing a legallypurchased copy of a movie for violent and sexual content and selling it as an clearlylabeled edited copy at a higher price hurts Hollywood’s bottom line and artistic 

expression. These edited copies are viewed privately and purchased legally. It seems 

that these products simply allow parents to protect their children from inappropriate 

content without having to wear out the fast forward button on the DVD player or buy 

more expensive filtering technology. 

My focus today is also to address how and why these innovative approaches and 

technologies that help better protect children from violent and sexual content can hurt 

content producers’ bottom line and creativity, other than giving America’s parents more 

control over their bottom-line responsibility when it comes to reviewing what is 

presented in the movies they view with their children at home. The fact is that the 

released films are all available to view in their entirety without edits, if one chooses. As I 

have said many times during a number of our hearings on fair-use and content regulation, 

I believe technology can provide a solution that will satisfy the rights, both financial and 

artistic, of content producers -- like the filmmakers and studios, as well as provide parents 

with the control they deserve over the content they purchase for family viewing in their 
4

homes. In fact, by providing this control of content to family consumers, some have 

argued that you are opening up a whole new potential market for artistic work, rather than 

waiting for something similar to start appearing in the wild of the Internet or on the black 

market. I think pushing the market to find more novel ways to provide parents more 

control over what their children watch in movies is essential as media content, both the 

best and the worst, slowly finds its way into every facet of our lives and into the lives of 

our children. 

I would like to say that we did invite the head of the Motion Picture Association of 

America, Mr. Dan Glickman, and the Directors Guild of America to be with us today, but 

unfortunately each declined our invitation. Therefore, I would like to especially thank all 

of you for joining us today, including Mr. Feehery – who is standing in for Mr. 

Glickman. This is a very important issue and I look forward to the testimony of this 

distinguished panel. 

Thank you. 

 MS. SCHAKOWSKY. Thank you, Mr. Chairman. By exploring 

movie-editing technology, our subcommittee is once again grappling 

with digital content and fair use. I must say I am a bit perplexed as to 

why we are holding today’s hearing. Many of the issues that we will be 

discussing have already been addressed by the courts and Congress last 

year. We have given families tools to help filter out inappropriate movie 

content and the courts have ruled on what they felt fell outside the 

bounds of fair use. I certainly hope that today’s hearing is not just 

election-year politics. 

 With that said, the ever-expanding flow of artistic material through a 

variety of media, from hand-held DVD players to iPods, has been a 

mixed blessing. While those developments have meant that families 

have more opportunities to enjoy movies, there are also increased risks 

that children may be seeing and hearing more than we think they should. 

 I think we can all agree that parents should be the first line of 

defense and are the best equipped to decide what movies their children 

should be allowed to watch. I am sure that many parents and 

grandparents think long and hard about what is appropriate content to 

which their children and grandchildren should be exposed. I know that I 

do. 

 Many families, in their fight to protect their children from what they 

deem inappropriate, have been using advances in technology to limit the 

content that comes across their television screens. While I am a strong 

proponent of consumers’ right to fair use of products that they have 

purchased, I believe that some companies have been trying to stretch the 

application of fair-use principle too far. 

 For instance, it cannot be argued, in my view, that re-editing and 

reselling a copyrighted movie, creating a derivative work without the 

express permission of the copyright holder, is within the boundaries of 

fair use. The U.S. District Court of Colorado, in its decision against 
5

CleanFlicks on July 6, 2006, said that this is a clear case of copyright 

infringement. I agree. 

 The passage last April of Public Law 109-9, the Family 

Entertainment and Copyright Act, provided a safe harbor for ClearPlay, 

legislatively determining that its technology fell within fair-use rights at 

a time when the issue was being litigated. While I think it would have 

been better for Congress to let the courts decide, it does now seem that 

ClearPlay comes closer to striking a better balance than CleanFlicks 

does. ClearPlay devices do not create a fixed or derivative copy of a 

protected work. Its filtering technology functions like advanced fast 

forward and mute buttons while leaving the original material intact. It 

gives consumers a greater amount of control by allowing families to set 

their own preferences as to which parts of a movie are shown. If they 

don’t want sex and violence, they can program that request into 

ClearPlay’s control. If they choose not to hear certain words, they can 

request that as well, and as children age if families decide to allow more 

of the content to be played, since the movie is still in its original form, 

they can change their settings. ClearPlay’s technology is not perfect. 

While it may catch some material a family objects to, some may slip 

through the filter. That is why family involvement is still needed. And, 

in the attempt to shelter children from objectionable material, the 

storyline, the mood and the artistic vision of the original product may be 

lost. 

 Although it is easy to get caught up in what technology can do for 

families, I think it is also important to remember that movies are rated for 

generally accepted age-appropriateness. When movies are made, the 

director decides whether he wants to appeal to all and make a G-rated 

movie or if he wants to make a movie that receives a more restricted 

rating. More than technology and a for-profit company, if parents are 

concerned about what children are seeing, they can start by checking out 

the rating. 

 I look forward to hearing from witnesses today. Perhaps you can 

help me understand the need for today’s hearing. Thank you. 

 [The prepared statement of Hon. Jan Schakowsky follows:] 

PREPARED STATEMENT OF THE HON. JAN SCHAKOWSKY, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF ILLINOIS

Thank you, Mr. Chairman. By exploring movie-editing technology, our 

subcommittee is once again grappling with digital content and fair use. I must say that I 

am a bit perplexed as to why we are holding today’s hearing. Many of the issues that we 

will be discussing have already been addressed by the courts and Congress last year. We 

have given families tools to help filter out inappropriate movie content and the courts 

have ruled on what they felt fell outside the bounds of fair use. I certainly hope that 

today’s hearing is not just election year politics. 
6

With that said, the ever-expanding flow of artistic material through a variety of 

media – from hand-held DVD players to i-pods – has been a mixed blessing. While those 

developments have meant that families have more opportunities to enjoy movies, there 

are also increased risks that children may be seeing and hearing more than we think they 

should. 

I think we can all agree that parents should be the first line of defense and are the 

best equipped to decide what movies their children should be allowed to watch. I am 

sure that many parents and grandparents think long and hard about what is appropriate 

content to which their children and grandchildren should be exposed. 

Many families, in their fight to protect their children from what they deem 

inappropriate, have been using advances in technology to limit the content that comes 

across their television screens. While I am a strong proponent of consumers’ right to fair 

use of products they have purchased, I believe that some companies have been trying to 

stretch the application of the fair use principle too far. 

For instance, it cannot be argued that re-editing and reselling a copyrighted movie, 

creating a derivative work without the express permission of the copyright holder, is 

within the boundaries of fair use. The U.S. District Court of Colorado, in its decision 

against Clean Flicks on July 6, 2006, said that this is a clear case of copyright 

infringement. I agree. 

The passage last April of Public Law 109-9, the Family Entertainment and 

Copyright Act, provided a safe harbor for ClearPlay, legislatively determining that its 

technology fell within fair use rights at a time when the issue was being litigated. While I 

think it would have been better for Congress to let the courts decide, it does seem that 

ClearPlay comes closer to striking a better balance than Clean Flicks does. ClearPlay 

devices do not create a fixed – or derivative – copy of a protected work. Its filtering 

technology functions like advanced fast forward and mute buttons while leaving the 

original material intact. It gives consumers a greater amount of control by allowing 

families to set their own preferences as to which parts of a movie are shown. If they do 

not want sex and violence, they can program that request into ClearPlay’s control. If they 

choose not to hear certain words, they can request that as well. And, as children age, if 

families decide to allow more of the content to be played, since the movie is still in its 

original form, they can change their settings. 

ClearPlay’s technology is not perfect. While it may catch some material a family 

objects to, some may slip through the filter. That’s why family involvement is still 

needed. And, in the attempt to shelter children from objectionable material, the storyline, 

the mood, and the artistic vision of the original product may be lost. 

Although it is easy to get caught up in what technology can do for families, I think it 

is also important to remember that movies are rated for generally-accepted ageappropriateness. When movies are made, the director decides whether he wants to appeal 

to all and make a G-rated movie – or if he wants to make a movie that receives a more 

restrictive rating. More than technology and a for-profit company, if parents are 

concerned about what children are seeing, they can start by checking out the rating. 

I look forward to hearing from today’s witnesses. Perhaps you can help me 

understand the need for today’s hearing. Thank you. 

 MR. STEARNS. I thank the gentlelady. The distinguished chairman 

of the full committee, Mr. Barton from Texas. 

 CHAIRMAN BARTON. Thank you, Mr. Chairman. 

 The debate about consumers’ and copyright holders’ rights has been 

an important one for at least the last 200 years since the Constitutional 

Convention adopted the U.S. Constitution. The decision to grant 
7

exclusive rights of creative works to their creators has been a great 

strength of our economy and of our country. The discussion about those 

rights and their limits started many years ago and continues today in this 

Congress and this subcommittee. 

 Today we are here to talk about Hollywood, artistic expression, fairuse rights and so-called edited movie industries. This hearing comes at a 

good time, I believe. Last year, the Family Entertainment and Copyright 

Act became a public law. Earlier this past summer a court decision was 

handed down that dealt with that law. We are here today to learn more 

about those developments and what they mean for consumers, for parents 

and for families. 

 Let us say that I buy a DVD. I believe that I can take it home and 

make an edited version of my own to watch with my family. Now, if I 

don’t have the technical ability to make the edited vision, I believe that I 

should be able to ask someone to do it for me. Can I pay that someone 

$5 or $10 or a similar amount for doing so? If so, can my neighbor buy, 

and I emphasize the word “buy,” an authorized copy and then sell me an 

edited version of that authorized copy? That is really what we are here to 

talk about. 

 I am very sympathetic to the movie industry’s sense of creative 

ownership and with their fear of losing control over their work. That 

said, in this area of TiVo and YouTube, in which consumers increasingly 

produce, manipulate and consume culture on their own digitized terms, 

an audience no longer passively consumes culture. The audience has a 

mind of its own, and often ignores the creator’s intentions. Fast 

forwarding a movie or skipping songs on a CD is the reality of the digital 

world and it is a reality that consumers like and have come to expect. 

 Many of these consumers are fed up with what they view as 

gratuitous sex, drug use and violence in the movies. Two of our 

witnesses today have set out to serve these consumers by developing 

creative, technologically advanced ways to clean up these movies. I 

believe that we need to be careful that the copyright owners and creative 

artists of our country are not harmed in that process but I also understand 

that it would serve the potential audience in a larger manner if we could 

find a common ground that everybody could agree upon. I am anxious to 

hear about what options parents and others have in this growing market. 

It is a puzzlement to me that the movie industry itself doesn’t offer edited 

versions of their movies like those that are played on the television or on 

airlines. It would seem that that would expand their pie and give them 

more dollars with which to make more movies. 

 I am also interested to learn from the movie perspective how this 

niche market that CleanFlicks and ClearPlay have developed has affected 

the industry. Has it widened the pool of possible potential customers for 
8

the movies that are made in America? Many who previously weren’t 

buying or renting movies might have become customers for these edited, 

cleaned-up versions. Why then have many of the industry attempted and 

indeed succeeded as this court case last summer points out in prohibiting 

some of these businesses from doing what they want to do? From a 

business standpoint, this strategy of limiting the market to me doesn’t 

seem to make much sense. It only limits their sales. 

 Having said that, a copyright is a time-honored and essential 

concept. We must protect creators’ rights and private property rights. I 

understand that. I would hope that in doing that though we don’t curtail 

those consumers particularly when the consumers who wish a cleaner 

version are willing to pay their hard-earned dollars if they can get the 

basic movie content, just get it without all the gratuitous sex, violence 

and drugs. 

 This is an important hearing, Mr. Chairman. I want to thank you for 

holding it. I look forward to hearing from our witnesses, and I am sure 

we will have a spirited discussion in the question-and-answer period. 

 With that, I yield back. 

 [The prepared statement of Hon. Joe Barton follows:] 

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY 

AND COMMERCE

Good afternoon. Thank you, Chairman Stearns, for holding this hearing. The 

debate about consumers’ and copyright holders’ rights has been an important one in our 

country at least since 1787 when the Constitutional Convention adopted The U.S. 

Constitution. The decision to grant exclusive rights of creative works to their creators 

has been a great strength of our economy and our Nation. The discussion about those 

rights and their limits started those many years ago, and it continues today in this 

Congress and in this Committee. 

Today, we’re here to talk about Hollywood, artistic expression, fair use rights, and 

the so-called “edited movie” industry. And this hearing comes at a perfect time. Last 

year, the Family Entertainment and Copyright Act became a public law, and earlier this 

past summer a court decision was handed down that dealt with similar issues. We’re here 

today to learn more about what these developments mean for consumers, for parents and 

families. 

Let’s say I buy a DVD. I believe I can legally take it home and make an edited 

version of my own to watch with my family. Now if I don’t have the technical ability to 

do this, I believe I should be able to ask my tech-savvy neighbor to do it for me. Can I 

pay him $5 or $10 dollars for doing it? If so, can my neighbor buy an authorized copy 

for $15 and then sell me an edited version for $20? This is what is at the heart of the 

issue. 

I am very sympathetic with the movie industry’s sense of creative ownership and 

with their fear of losing control over their work. That said, in this era of TiVo and 

YouTube—in which consumers increasingly produce, manipulate and consume culture 

on their own terms—an audience no longer passively consumes culture. The audience 

has a mind of its own, and often ignores the creator’s intentions. Fast forwarding a movie 

or skipping songs on a CD is the reality of digital entertainment and the reality consumers 

have come to expect. 
9

Many of those consumers have become fed up with what they view as gratuitous 

sex, drug use, and violence in the movies. Two of our witnesses today set out to serve 

those consumers by developing ways to clean up the movies. We need to be careful that 

copyright owners are not harmed in this process, and I understand that different 

companies have taken different approaches in trying to serve their potential customers. I 

am anxious to hear about what options parents and others have in this growing market. 

For instance, why doesn’t the movie industry offer edited versions of their movies, like 

those played on TV and on commercial airlines? 

Furthermore, I am very interested to hear how this niche market has affected the 

wider industry. It seems to me that this would only broaden the possible pool of 

customers. Many who previously weren’t buying or renting movies have become 

customers for the movie makers. Why then have many in the industry attempted—and 

indeed succeeded in some case—to prohibit these small businesses from doing what they 

do? From a business standpoint, this strategy doesn’t seem to be furthering sales. 

As I said, copyright is a time-honored and essential concept. We must protect 

creators’ rights. I would hope that in doing that we don’t curtail those of consumers, 

particularly when those consumers are parents trying to the right thing for their children. 

Thank you, Mr. Chairman. I am glad you have continued the Committee’s 

involvement on these important issues, and I look forward to hearing from our witnesses. 

I yield back the balance of my time. 

 MR. STEARNS. I thank the gentleman. The gentleman from Texas, 

Mr. Green. 

 MR. GREEN. Thank you, Mr. Chairman. I would like to thank you 

and our Ranking Member, Ms. Schakowsky, for holding the hearing. 

 Congress addressed this issue in 2005 when they passed the Family 

Entertainment and Copyright Act. That law made it clear that companies 

such as ClearPlay can offer devices that can take an unedited DVD and 

using the technology in the player provide a scalable edit of that movie to 

remove the violence, foul language and sexual content. However, that 

law failed to address whether or not making edits or DVDs for content 

and redistributing them is permissible. A recent court ruling said that 

doing so is an infringement on the copyrights held by the directors and 

production companies. I support the spirit of our copyright law, and it 

was designed to foster creativity and allow flexibility, and our judicial 

system determined what constitutes fair use and what doesn’t. These 

issues are for our judiciary to decide on a case-by-case basis. 

 While Congress can pass legislation in contrast to such a ruling, we 

should approach this issue with the consumer at the top of our priority 

list. I have a granddaughter, and if I don’t want her to watch movies that 

are overly violent or contain adult material, the easiest way for my 

family is to edit inappropriate content for my granddaughter that she 

might be exposed to. I buy it and I edit it for ourselves but we should not 

be able to market that edited version. 

 The issue today is whether or not we should allow a third party to 

acquire the original content, edit the content in that material that some 

may find objectionable and then resell it to consumers. Once again, the 
10

committee finds itself exploring the issue of what constitutes fair use and 

how that impacts consumers. I believe the better policy is when the 

consumers have more choices in the marketplace. However, we must be 

careful not to infringe on the copyright protections offered under Federal 

law. In listening to our Chairman’s statement, I find I agree with him 

that if I own a copy that had a given movie and I would market the full 

content version but I also want to make money from marketing maybe a 

family-friendly version, you know, but that still protects their content 

because they have that copyright. 

 I look forward to hearing what our witnesses have to say and I would 

like to thank the witnesses for being here today. Thank you, Mr. 

Chairman. 

 MR. STEARNS. I thank my colleague. We welcome the witnesses, 

the five of you, Mr. Bill Aho, Chief Executive Officer of ClearPlay; Mr. 

Allan Erb, President of CleanFlicks Media Incorporated; Mr. John 

Feehery, Executive Vice President, External Affairs, Motion Picture 

Association of America; Ms. Robin Bronk, Executive Director, The 

Creative Coalition; and Mr. Jason Schultz, Electronic Frontier 

Foundation. 

 I understand from staff, Mr. Aho, that you will have a small 

presentation before we start these opening statements. We are going to 

give you some extra time for this. Perhaps a compromise might be, you 

could read your statement and then make your presentation. 

 MR. AHO. That is--in the spirit of compromise, I will accept that. 

 MR. STEARNS. Okay. Just move the mic closer to you if you don’t 

mind. 

STATEMENTS OF BILL AHO, CHIEF EXECUTIVE OFFICER, 

CLEARPLAY, INC.; ALLAN L. ERB, PRESIDENT, 

CLEANFLICKS MEDIA, INC.; JOHN FEEHERY, 

EXECUTIVE VICE PRESIDENT, EXTERNAL AFFAIRS, 

MOTION PICTURE ASSOCIATION OF AMERICA; ROBIN 

BRONK, EXECUTIVE DIRECTOR, THE CREATIVE 

COALITION; AND JASON SCHULTZ, STAFF ATTORNEY, 

ELECTRONIC FRONTIER FOUNDATION 

MR. AHO. Thank you, Chairman Stearns, and members of the 

committee. My name is Bill Aho. I am the CEO of ClearPlay. ClearPlay 

makes technology that can be implemented into consumer electronic 

devices such as DVD players, televisions, cable set top boxes to help 

parents control media in their homes. Our movie product has been 

marketed under different brand names and it lets families filter out 

graphic violence, explicit sex, vulgar language from most popular 
11

Hollywood DVDs. Our technology can be licensed. It could be 

available not just on our brands but on multiple brands, I mean Sonys 

and Toshibas and whatever, in the same way you might think of being 

able to get Dolby or picture-in-picture. 

 Thank you for inviting me to testify today. I am happy to provide 

some perspective on the Family Movie Act of 2005 but also the state of 

parental controls and the media, and in my opening statement I would 

like to address just three things if we could, first, why the Family Movie 

Act was passed in its present form; second, what is the status of parental 

controls today; and third, what options might be available to Congress to 

help families protect themselves further against unwanted media. 

 To start with the Family Movie Act of 2005, it essentially clarified 

the copyright law to ensure that the right to filter content in movies in the 

home existed. It basically gave moms and dads a right to watch movies 

in their home without the bad stuff, but there were three provisions of the 

bill which ultimately made it palatable to Congress and to the broad 

range of constituencies that sometimes are needed to get things done. 

The first is that it does not allow for the decrypting, the creation or the 

copying of tangible edited works. There are no derivative works that are 

formed, and rather, the Act protects the right to use technology to make 

personal selections. It is like having a remote control with fast forward 

and mute in your home. Copyrighted works such as the DVD are never 

copied, modified or altered. The only thing affected is how you choose 

to view them. That was important I think to the committee. The second 

is, the Family Movie Act only covered home use and not public displays. 

The third is that it was ensuring something that already was legal, at least 

according to the U.S. Register of Copyrights, who testified that in her 

opinion, what we did was legal. Nevertheless, recognizing that 

technology often moves faster than our ability to clarify our laws, we felt 

like it was very likely there could be an endless stream of litigation as 

long as there was somebody in Hollywood willing to challenge the 

parents’ right to do that. 

 As the legislation was being developed, broader provisions in the bill 

were at various times considered. One of these was protection of edited 

DVDs such as CleanFlicks. This approach, as you know, involves 

making copies or admittedly creating a derivative work and proponents 

of fair-use rights have argued that fair-use rights should be extended. 

Unlike software technology solutions, the register said in her opinion this 

was not currently legal. Content providers also tended to be more 

entrenched against this approach, and in general, congressional 

supporters of the Family Movie Act at that time were not interested in 

addressing this fair-use issue in the legislation. 
12

 Just a couple of minutes also on parental controls. The Family 

Movie Act has opened up a number of companies that are currently out 

licensing. Three companies are out actively licensing this technology. 

The adoption has not been rapid amongst the consumer electronics 

industry. There is I think sometimes a concern when they are told that 

sex sells and that the director’s cut which is even more explicit sells 

more copies on DVD. I think there is some skepticism frankly that the 

American people, you know, families want this despite all the research 

and not just ours but ABC News and Fox and USA Today and all the 

research points to about half the households would be interested in 

having something like this at some point. But adoption has been slow. 

 I am not sure frankly what steps Congress might take to help this 

technology move forward. It is--I am not generally a fan of regulation 

and I think that what we did with the V-chip probably did not help our 

industry because everybody points to the V-chip and says this doesn’t 

work, and so more parental controls aren’t necessarily better. It may be 

that as this committee or as Congress looks at this issue, there may be 

ways to simulate and nudge the industry. We would support those, and 

certainly we would be willing to help and assist in that movement. 

Thank you. 

 [The prepared statement of Bill Aho follows:] 

PREPARED STATEMENT OF BILL AHO, CHIEF EXECUTIVE OFFICER, CLEARPLAY INC. 

Good afternoon Chairman Stearns, Chairman Barton, members of the committee. 

My name is Bill Aho and I am the CEO of ClearPlay Inc. ClearPlay makes technology 

that can be implemented into consumer electronic devices, such as DVD players, 

televisions and cable set-top boxes, to help parents control media in their homes. Our 

movie product has been marketed under different brand names, and lets families filter out 

graphic violence, explicit sex and vulgar language from most popular DVD’s. 

Thank you for inviting me to testify today. I am happy to provide some perspective 

on the Family Movie Act of 2005 and the state of parental controls and the media. In my 

opening statement, I would like to address three questions: 

First, why was the Family Movie Act of 2005 passed in its current form? 

Second, what is the status of Parental Controls for American families? 

And third, what options are available to the government to help families protect 

themselves against unwanted content in the media? 

Let’s start with the Family Movie Act of 2005, which in effect clarified the 

copyright law to ensure the right to filter unwanted audio and video content from media 

in the home. Basically, it gives moms and dads the right to watch movies in their homes 

without the bad stuff. There were three provisions of this bill which ultimately made it 

palatable to Congress and to a broad range of constituencies: 

1. It does not allow for the decrypting, creation of or copying of tangible edited 

works. No derivative works are formed. Rather, the Act protects the right to 

use technology to make your personal selections, like having a remote control 

that fast forwards or mutes unwanted scenes. Copyrighted works, such as 

DVD, are never copied, modified or altered in any way. The only thing 

affected is how you choose to view them. 
13

2. The Family Movie Act only covered home use and not public broadcasting. 

3. It was ensuring protection for something that was already legal, at least in the 

opinion of the U.S. Registrar of Copyrights. However, as is often the case, 

technology moves faster than the law, and the lack of clarity in the Copyright 

Act of 1976 opened up the likelihood of an endless stream of litigation as 

Hollywood fought to suppress this and similar technologies. The Family Movie 

Act was an effort to simply clarify the legality of mechanically controlling 

content delivery in the home. 

As the legislation was being developed, broader provisions in the bill were at various 

times considered. One of these was protection of edited DVD’s, such as those previously 

offered by Clean Flicks. This approach involves making copies of DVD’s which have 

been edited; or admittedly, creating a derivative work. Proponents have argued that Fair 

Use rights should be extended to include this type of action. Unlike software technology 

solutions, the Registrar of Copyrights specifically noted that, in her opinion, this was not 

currently legal. Content providers, including studios and directors, were also more 

entrenched against this approach, which they viewed as a more egregious violation of 

their copyrights. And in general, Congressional supporters of The Family Movie Act 

were not interested in addressing this fair-use issue in the legislation, which could have a 

substantial ripple effect in copyright law. 

Perhaps it would be useful to look at the status of Parental Controls in the world of 

Consumer Electronics and media. With the Family Movie Act, the movie filtering 

business is beginning to get traction, and both ClearPlay and at least two other companies 

have been actively marketing filtering technologies to the Consumer Electronics (CE) 

industry. Specifically, these companies are lobbying to get effective parental controls 

incorporated into DVD players, televisions, Digital Video Recorders (like TiVo) and 

cable or satellite set-top boxes. 

Unfortunately, Parental Control adoption has moved slowly in the CE industry. The 

V-Chip, despite the advertising package negotiated by the cable industry, is not likely to 

ever be broadly accepted by consumers. It’s simply not a very useful product, and the 

low usage rates have spooked many in the industry. 

But let me paint a picture of what is possible for families, using available technology 

on existing consumer electronics. 

• Families watch a movie on DVD and can choose to skip or mute over unwanted 

sex, violence and profanity. 

• The same capability can be easily downloaded to any of the estimated 60 

million installed base of DVD’s in home PC’s and laptops at no initial cost. 

• Televisions are sold with the ability to mute profanity on command. 

• Cable companies offer set-top boxes with the capability to filter movies from 

Video on Demand and filter language on TV shows. 

• Every family can use the Electronic Programming Guide through their cable 

provider to quickly and easily block television shows they don’t want in their 

home—not based on obscure TV ratings, but actually choosing which shows to 

block. 

• Parents will be able to go online and actually see what TV and movie content 

their kids have been watching at home—and even on their iPods—including a 

description of the show. If parents are uncomfortable with the content, they 

can discuss it with their children. 

All of these and more are well within reach of the consumer electronics industry at 

this time, and at surprisingly little cost. In fact, any of these features could be added to 

CE devices for less than a cost of one dollar per unit. The ability for parents to filter, 
14

control and monitor what their children are seeing on cable, satellite, TV, DVD and 

handheld devices is extraordinary. 

So finally, my third point, what options are available to the government to help 

make this vision a reality, to help get these tools into the hands of families. Because 

frankly, the benefits are substantial, not just to families, but to multiple industries. For 

instance, if tools are broadly available, there is less pressure on Congress to monitor and 

censor content providers. If it was easy to block unwanted programming, there would be 

less uproar over inappropriate content on adult-oriented shows. If filtering movies was 

broadly available, there would be less concern over issues such as the MPAA ratings 

creep. 

I must admit that I have never been a fan of increased regulation—telling the CE 

industry how to make their products. While it would be very good for my industry to 

have Parental Controls mandated, like the V-chip has been, I don’t think that’s generally 

the best approach for consumers or for industry. 

However, at a time when TV and DVD manufacturers are living on tight margins, 

when Hollywood and broadcasters (who are generally one and the same now) are 

preaching the gospel that more graphic violence and more explicit sex will sell better, it 

may be that Congress can give the industry a nudge in the right direction. Maybe there 

are ways to work with the FCC to encourage the industry to provide effective and 

responsible Parental Controls. Maybe through tax credits, which I think could be quite 

modest to be effective. Or maybe it’s with the Congressional language that industry has 

always understood best—police yourselves or we’ll regulate for you. As representatives 

of the Parental Control industry, we would be glad to help find solutions that are 

palatable for all constituents. 

In conclusion, I want to applaud the passage of The Family Movie Act. It didn’t 

create any additional burdens on content providers or consumer electronics 

manufacturers. Rather, it just cleared the way for companies to provide these benefits, 

which are starting to come to market in 2007. I also congratulate this committee on 

taking an interest in this issue. I believe it is a fruitful area of interest for Congress, with 

the potential to solve multiple problems and provide important societal benefits. And 

finally, I want to reinforce my belief that the tools to help parents and families really 

control media in their homes are out there. The technology has been created. It is a 

classic win-win for families and the industry. And if this committee can find ways to 

overcome the present inertia and push industry along the road to that vision, the benefits 

to society, to families, and to industry would be significant. 

 MR. STEARNS. We will take a look at your demonstration. 

 MR. AHO. In the spirit of-- 

 MR. STEARNS. You can drop the lights if you want. 

 MR. AHO. I am going to show a clip from “The Patriot.” 

 [Video] 

 MR. AHO. Okay. Some argue and some suggest that can you still do 

a war movie, can you do battle scenes. You certainly can. Take a movie 

like “The Patriot” and with just a couple of minutes of skips throughout 

the entire movie, turn an R-rated movie into something that I feel 

comfortable sharing with my 11-year-old son. 

 MR. STEARNS. So that was already edited? 

 MR. AHO. The way this works is, you control this edit, so for 

instance, you may say, you know, do I want to edit strong violence, 

disturbing images, am I concerned about--maybe you are okay with 
15

essential content for older kids or you are okay with crude language and 

humor but you don’t like the F word. You can decide how you want to 

watch the movie based upon who watches it. You can also turn it on and 

off. So let us watch that same scene with ClearPlay on. 

 MR. STEARNS. So now, this is the edited version? 

 MR. AHO. This is not edited. 

 [Video] 

 MR. STEARNS. So the first version was the edited version? 

 MR. AHO. The one where the head was taken off was the one-- 

 MR. STEARNS. That was the first clue. You can put the lights back 

on. Mr. Aho, thank you. 

 Mr. Erb, welcome. 

MR. ERB. Chairman Stearns and members of the subcommittee, my 

name is Allan Erb. I am the President of CleanFlicks. Thank you very 

much for the opportunity to testify here today. 

 I would like to address two main issues. One is the current state of 

affairs of the media industry as I see it in our country, and secondly, the 

inadequacy of the Family Movie Act. 

 First, the current state of affairs. Public entertainment in America 

has increased its usage of sexual content, graphic violence, nudity and 

profanity. Unquestionably there are those who will argue this point but 

that really is not the reason we are here. The issue is whether families 

should have a choice in the content they wish to have in their homes, and 

if so, how to provide it. One argument is that those who do not want to 

view offensive content should simply not look, but that is not really a 

choice. Even for those who are not offended by this content, we are a 

country premised on freedom of choice among a wide variety of options 

in virtually every area of life where nearly every item comes in multiple 

colors, tastes, shapes and sizes. Why isn’t that true here? 

 Hollywood produces extraordinary movies with exceptional subject 

matter. Sadly, many of those productions are also laced with needless, 

often gratuitous content which is not important to the storyline, subject 

matter, content or impact of the movie. Its removal does no harm to the 

movie. This seems to be acceptably true even for the studios and 

directors since movies are regularly edited for content for television, 

airlines, cruise ships and some foreign countries. Why the Hollywood 

studios and directors have chosen not to make these edited movies 

available to the public at large is a question which simply seems 

unanswerable. 

 Why is the editor’s cut readily available to those who want it while 

the edited cut is hardly available to the millions of parents and families 

who want it? The demand is there. Why isn’t the supply? Why are the 
16

voices of millions of Americans who live value-centered lives go 

unheard? 

 While the hold that Hollywood has on the production and 

distribution of movies in America may not rise to the legal definition of 

an antitrust violation, in practicality, the vast majority of public 

entertainment comes from a narrow sector of our society. The values of 

that sector may not always reflect the values of other potentially large 

segments of society. Whether these other segments are large or small is 

certainly open to debate but surveys conducted show ranges from 40 to 

60 percent of the general public would prefer to see movies with some or 

all of the offensive content edited out. This group feels like the media 

industry, movie and television, have simply left them behind. 

 Who is to make the determination of what constitutes offensive 

materials? Should that be extended to only those who have produced the 

offensive content in the first place? Should it be allowed only to the 

individual family even though the technical expertise simply does not 

exist at this level, or should it be extended to others who are responsive 

to the requests of that segment of society which they seek to serve? 

 Secondly, the inadequacy of the Family Movie Act. In 2005, 

Congress passed the Intellectual Property Protection Act. The bill taken 

in its entirety was largely an accession to Hollywood’s effort to solidify 

its protection of intellectual property in an ever-changing electronic 

environment. Understandably, the digitization of intellectual property 

threatens to test the current copyright laws in a variety of ways. Many 

have suggested that this area of the law now requires complete overhaul 

in order to maintain applicability to advancing technology. 

 One small portion of the bill was the Family Entertainment and 

Copyright Act purported to provide families with access to movies edited 

to a more family-oriented standard. Public statements about this bill 

suggested that Congress by its passage had taken major strides in the 

effort to give those who desired it the ability to control the content of 

movies brought into their home. 

 In actuality, these characterizations are a dramatic overstatement as 

to the practical usability of the provisions of the Act. The Act allows for 

only a narrow exception that the ability to deliver the promised result to a 

wide variety of families is simply not possible. Furthermore, patents on 

the process of delivery that is simultaneous editing as allowed by the 

Family Movie Act limit its distribution to a single company, ClearPlay, 

although another company, Nissim, has challenged the patents, and 

although ClearPlay is willing to license, they are still the only potential 

provider of this product. By disallowing any production of a fixed copy 

of an edited movie, the Act arguably precludes virtually any delivery 

system other than the one patented. As currently drafted, the Act 
17

arguably does not even allow an individual in their own home to produce 

a fixed copy of an edited version of a movie. 

 As a result of this, the United States District Court in Colorado 

recently issued a decision putting a number of edited movie providers to 

include us out of business with the following language: “During the 

pendency of this case, Congress enacted the Family Movie Act. Thus, 

the appropriate branch of government had the opportunity to make the 

policy choice now urged and rejected it.” 

 Issues like terrorism and immigration will not command public and 

congressional attention forever. I sincerely hope that Congress can 

wrestle with this problem and broaden the accessibility of edited movies 

to the general public while safeguarding the fundamental protections to 

intellectual rights. 

 Thank you. 

 [The prepared statement of Allan L. Erb follows:] 

PREPARED STATEMENT OF ALLAN L. ERB, PRESIDENT, CLEANFLICKS MEDIA, INC. 

TO: The House Subcommittee on Commerce, Trade, and Consumer Protection 

 The Honorable Cliff Stearns, Chairman 

FROM: Allan L. Erb 

 CleanFlicks Media, Inc., President 

RE: Committee Hearing “Editing Hollywood’s Editors: Cleaning Flicks for 

 Families” scheduled for 2:00 PM, September 26, 2006 

It is my intent to address two main issues: 

1. The current state of affairs 

2. The inadequacy of the Family Movie Act 

I. The current state of affairs 

Public entertainment in America has increased its usage of sexual content, graphic 

violence, nudity and profanity. Unquestionably, there are those who will argue this point 

even though a recent Harvard study empirically demonstrates the change in movie ratings 

vs. content, and we all know by our own experience that movie content has changed. 

Yet, there will still be those in our society today who will loudly disagree with even the 

obvious. But, that is not the debate. 

The issue is whether families should have a choice in the content they wish to have 

in their homes, and, if so, how to provide it. One argument is that those who do not want 

to view offensive content should simply not look. But, that is not really a choice. Even 

for those not offended by this content, we are a country premised on freedom of choice 

among a wide variety of options in virtually every area of life, where nearly every item 

comes in multiple colors, tastes, shapes and sizes. Why isn’t that true here? 

Hollywood produces extraordinary movies with exceptional subject matter. Sadly, 

many of those productions are also laced with needless, often gratuitous, content which is 

not important to the storyline, subject matter content, or impact of the movie. Its removal 

does no harm to the movie. This seems to be acceptably true, even for the Studios and 

Directors, since movies are regularly edited for content for television, airlines, cruise 
18

ships, and some foreign countries. Why the Hollywood Studios and Directors have 

chosen not to make these edited movies available to the public at large is a question that 

seems unanswerable. Why? 

Why is the editor’s cut readily available to those who want it, while the edited cut is 

hardly available to the millions of parents and families who want it? The demand is 

there, why isn’t the supply. Why are the voices of millions of Americans who live valuecentered lives going unheard? Why? 

While the hold that Hollywood has on the production and distribution of movies in 

America may not rise to the legal definition of an anti-Trust violation, in practicality, the 

vast majority of public entertainment comes from a narrow sector of society. The values 

of that sector may not always reflect the values of other, potentially large, segments of 

society. Whether these other segments are large or small is certainly open to debate. But 

surveys conducted show ranges from 40-60% of the general public would prefer to see 

movies with some, or all, of the offensive material edited out. This group feels like the 

media industry, both movie and television, has simply left them behind. 

Who is to make the determination of what constitutes offensive materials? Should 

that right be extended to only those who have produced the offensive content in the first 

place? Should it be allowed only to the individual family even though the technical 

expertise simply does not exist at this level? Or, should it be extended to others who are 

responsive to the requests of that segment of society which they seek to serve? 

II. The inadequacy of the Family Movie Act. 

In 2005, Congress passed The Intellectual Property Protection Act (HR 2391). The 

Bill, taken in its entirety, was largely an accession to Hollywood’s efforts to solidify its 

protection of intellectual property in an ever-changing electronic environment. 

Understandably, the digitization of intellectual property threatens to test the current 

Copyright Laws in a variety of ways. Many have suggested that this area of the law now 

requires complete overhaul in order to maintain applicability to advancing technology. 

One small portion of the Bill (Section 212, entitled The Family Movie Act of 2005) 

purported to provide families with access to movies edited to a more family-oriented 

standard. Public statements about this Bill suggested that Congress, by its passage, had 

taken major strides in the effort to give those who desired it, the ability to control the 

content of movies that would be brought into their homes. 

In actuality, these characterizations are a dramatic overstatement as to the practical 

usability of the provisions of the Family Movie Act. The Act allows for only such a 

narrow exception, that the ability to deliver the promised result to a wide range of 

families is simply not possible. Furthermore, patents on the process of delivery 

(simultaneous editing) as allowed by the Family Movie Act limit its distribution to a 

single company, Clear Play (although another company, Nissim, Inc., challenges the 

patents). By disallowing any production of a “fixed copy” of an edited movie, the Act 

arguably precludes virtually any delivery system other than the one patented. 

As a result of this, the United States District Court for the District of Colorado in its 

July 6, 2006, decision in the case involving a number of edited movie providers, put those 

providers out of business with the following language: “During the pendency of this case 

Congress enacted the Family Movie Act. . . . Thus, the appropriate branch of government 

had the opportunity to make the policy choice now urged and rejected it.” 

Copyright laws are fundamentally rooted in economics. Clearly, the challenge to 

Congress in passing some type of legislation that would truly allow families across 

America to access edited movie content while protecting intellectual property rights is an 

enormous challenge. But, the current result, while a valiant effort, does not meet that 

challenge. 

By way of a rather extreme analogy, let us hypothesize that Congress, many years 

ago, had tried to balance the interests of bicycle manufacturers and horse breeders against 
19

the interests of new motorized vehicle manufacturers by passing a Bill which allowed for 

the introduction of motorized vehicles -- but only so long as they were 16 wheel semitrucks. Obviously, some people would have availed themselves of the new opportunity, 

but the cumbersome and costly nature of what was made available would make the usage 

narrow, at best. 

To extend the hypothetical, let us assume that a company named Peterbilt, at the 

time, had a patent on the production of 16 wheel semi-trucks. The effect of the Bill 

would not only have been a poor first step in allowing the majority of Americans access 

to motorized vehicles, but would also have provided a single business entity with a 

monopoly in the market place. That, in my judgment, is exactly where we are today with 

respect to making edited movies available to the majority of Americans. 

The only alternative allowed is cumbersome, costly, and patented. It will simply not 

meet the demand. It requires the purchase of a new type of DVD player, when most 

Americans have already incurred that expense, and, in most cases, it requires sufficient 

technological expertise to download editing commands to a computer for copying to a 

CD for use in the DVD player. And yet, remarkably, it still seems to draw fire from 

Hollywood. 

The ultimate introduction of automobiles in every size and shape put two cars in 

nearly every garage, enhanced the lifestyle of Americans, and is at least one factor in the 

incredible power of the U.S. economy. Similarly, broadening the availability of edited 

movies to other “sizes and shapes” will widen usage, enrich family lifestyles and add to 

the moral fiber of our society. 

Sadly, one of the factors in negative attitudes about American culture across the 

globe, and some of the problems that result, emanates in part from a belief that our 

exported media depicts the moral values of our country. However untrue that may be, 

this media is the only basis for some of those beliefs. 

Technology continues to advance. Recently, movies have been made available 

through computer download. This would open new opportunities to develop simplified 

edited movie delivery systems to that sector of society that has this technology available, 

except for the narrow language in the Family Movie Act. As currently drafted, the Act 

arguably does not even allow an individual in their own home to produce a “fixed copy” 

of an edited version of a movie! 

Issues like terrorism and immigration will not command public and Congressional 

attention forever. I sincerely hope that Congress can wrestle with this problem and 

broaden the accessibility of edited movies to the general public while safeguarding the 

fundamental protections to intellectual property. 

 MR. STEARNS. Thank you. Mr. Feehery. 

MR. FEEHERY. Thank you, Mr. Chairman. Chairman Stearns, 

members of the subcommittee, thank you for giving me this opportunity 

to express the views of the Motion Picture Association on the subject. 

Our president, Mr. Glickman, really wanted to be here today but he had 

an event that he could not get away from so he apologizes for not 

appearing and he sent me instead. 

 At the outset, let me say that the movie industry like most industries 

is driven by consumer demand. Each of the MPAA member studios is 

actively competing in the marketplace to serve the intense demand for 

family movies. The Walt Disney Company long has been associated 

with films that appeal to the entire family. Twentieth Century Fox 

announced last week that it has initiated a program to distribute family-
20

friendly movies under the FoxFaith banner. Paramount will release the 

family film “Charlotte’s Web” in December. Sony will release the 

animated children’s film “Open Season” later this week. Warner 

Brothers will release a PG-rated “Happy Feet” next month, and 

Universal released G-rated “Curious George” earlier this year. So far 

this year the film industry has released 82 films rated G or PG with 21 

films rated G and 61 films rated PG. Our industry is providing 

consumers with family-friendly films because the market has demanded 

it. Of course, not all films are appropriate for the entire family and not 

all movies should be geared to an audience of five-year-olds. 

 But parents do not want government to regulate the content of our 

movies and television programming. In a recent survey done by TV 

Watch, 91 percent of parents stated that more parental involvement 

rather than government regulation was the best way to control what their 

children watch. 

 Congress last year amended the Copyright Act to permit the 

marketing of programs that automatically skip or mute content based on 

individualized user preferences during playback of DVD movies. That 

legislation was not without controversy. There are very legitimate 

concerns about the impact of these tools on the artistic integrity of 

filmmakers who may invest millions of dollars and years of their lives 

putting their very personal expressive vision of a story on film only to 

have it changed by commercial editors with whom they have no 

relationship. Ask Steven Spielberg how he feels about a stranger 

creating and marketing their own versions of “Saving Private Ryan” and 

“Schindler’s List,” and I believe you will get some flavor for their 

concern that exists on this issue. 

 We don’t have to relive that debate here. The law now clearly 

allows for technology that enables consumers to automatically skip and 

mute material they find objectionable in the privacy of their own homes. 

That legislation was carefully drafted to draw a clear line between an 

automated program that skips or mutes certain material at the direction of 

the user when a DVD is played and the commercial distribution of 

unauthorized copies of movies that have been physically edited without 

the permission of the creators. The former does not result in an actual 

altered copy of the movie. 

 This is decidedly not the case with the latter category where the films 

are cut and spliced, changing the film to reflect the vision of an editor 

rather than the producer or the director. Copyright is violated as 

unauthorized copies are made and distributed, which constitutes the 

unauthorized making and distribution of derivative works. U.S. and 

international law long have established that the making of a derivative 

work is the exclusive rights of the copyright owner of the original work. 
21

These considerations are important ones to creators and content owners. 

Whatever one might think of the Family Movie Act, these distinctions 

important to Congress a year ago were main important dividing lines 

between exempted conduct and commercial-scale copyright 

infringement. 

 Let me conclude by saying that the movie industry is responding to 

marketplace demand for family-friendly films. The free market works 

best without government regulations that dictate content. 

 Thank you for giving me the chance to appear today 

 [The prepared statement of John Feehery follows:] 

PREPARED STATEMENT OF JOHN FEEHERY, EXECUTIVE VICE PRESIDENT, EXTERNAL 

AFFAIRS, MOTION PICTURE ASSOCIATION OF AMERICA

Chairman Stearns, members of the Subcommittee, thank you for giving me this 

opportunity to express the views of the motion picture industry. 

At the outset, let me say that the movie industry, like most industries, is driven by 

consumer demand. There is a market for "family friendly" movies and each of the 

MPAA member studios is actively in the market competing to serve that demand. The 

Walt Disney Company long has been associated with films that appeal to the entire 

family. As recently as this week, Twentieth Century Fox announced that it has initiated a 

program to distribute family friendly movies under the FoxFaith banner. Paramount will 

release the family film, "Charolette's Web" in December; Sony will release the animated 

children's film "Open Season" later this week; Warner Bros will release PG-rated "Happy 

Feet" next month; Universal released G-rated "Curious George" earlier this year. So far 

this year the film industry has released 82 films rated G or PG, with 21 films rated G and 

61 films rated PG. 

My point here is that our industry is providing consumers with family friendly films. 

But not all films are appropriate for the entire family, and I trust you would agree that all 

movies should not be geared to an audience of 5-year-olds. However, there are many, 

many movies being made that are appropriate for viewing by the entire family. 

It is also worth noting that parents do not want government to regulate content. In a 

recent survey done by TV Watch, 91 percent of parents stated that more parental 

involvement, rather than government regulation, was the best way to control what their 

children watch. 

As you know, Congress last year amended the Copyright Act to permit the 

marketing of programs that automatically skip or mute "objectionable" content based on 

individualized user preferences during playback of DVD movies. That legislation was not 

without controversy. There are very legitimate concerns about the impact of these tools 

on the artistic integrity of filmmakers, who may invest millions of dollars and years of 

their lives putting their very personal and expressive vision of a story on film, only to 

have it changed by commercial editors with whom they have no relationship. Ask Mel 

Gibson how he feels about someone he’s never met creating their own, “family friendly,” 

non-violent version of the Passion of the Christ, or Steven Spielberg how he feels about a 

stranger creating and marketing their own versions of Saving Private Ryan and 

Schindler’s List, and I believe you will get some flavor for the concern that exists on this 

issue. 

But the point is not to re-live that debate. The point is that the law now clearly 

allows for technology that enables consumers to automatically skip and mute material 

they find objectionable in the privacy of their homes. That legislation was also carefully 

crafted to draw a clear line between an automated program that skips or mutes certain 
22

material at the direction of the user when a DVD is played, and the commercial 

distribution of unauthorized copies of movies that have been physically edited without 

the permission of the creators. The former does not result in an actual altered copy of the 

movie. As the Report accompanying the legislation noted, 

“If you look at a DVD ... before and after [the] technology has been used to mute 

or fast-forward over the offensive material, there would be absolutely no difference 

in the product. It has not been sliced, diced, mutilated, or altered. The director’s 

work is still intact. No unauthorized copies have been distributed, no copyright 

violated.” H.Rep. 108-670, at 19. 

This is decidedly not the case with the latter category, where the films are cut and 

spliced, changing the film to reflect the vision of the editor, rather than the producer or 

the director. And copyright is violated as unauthorized copies are made and distributed, 

which constitute the unauthorized making and distribution of "derivative works." U.S. 

and international law long have established that the making of a derivative work is the 

exclusive right of the copyright owner of the original work. It is for this reason that the 

legislative history accompanying the Family Movie Act also notes that 

“the Act does not create an exemption for actions that result in fixed copies of 

altered works. The committee is aware of services and companies that create fixed 

derivative copies of motion pictures and believes that such practices are illegal 

under the Copyright act.” Id. at 7. 

The user-directed nature of the technologies exempted by the Family Movie Act was 

a key consideration. Both the House and Senate sponsors made clear that 

“There is a basic distinction between a viewer choosing to alter what is visible or 

audible when viewing a film, the focus of this legislation, and a separate entity 

choosing to create and distribute a single, altered version to members of the public. 

It is the sponsor's intent that only viewer directed changes to the viewing experience 

be immunized, and not the making or distribution of actual altered copies of the 

motion picture.” 

The sponsors further explained that the skipping of scenes must not be a one-size fits 

all determination by a commercial editing service, but “must be done by or at the 

direction of a member of a private household.” They noted that “While this limitation 

does not require that the individual member of the private household exercise ultimate 

decision-making over each and every scene or element of dialog in the motion picture 

that is to be made imperceptible, it does require that the making imperceptible be made at 

the direction of that individual in response to the individualized preferences expressed by 

that individual.” Thus: 

“This limitation would not allow a program distributor, such as a provider of videoon-demand services, a cable or satellite channel, or a broadcaster, to make 

imperceptible limited portions of a movie in order to provide an altered version of 

that movie to all of its customers, which would likely violate a number of the 

copyright owner's exclusive rights, or to make a determination of scenes to be 

skipped or dialog to be muted and to offer to its viewers no more of a choice than to 

view an original or an altered version of that film. Some element of individualized 

preferences and control must be present such that the viewer exercises substantial 

choice over the types of content they choose to skip or mute.” 
23

These considerations are important ones to creators and content owners. Whatever 

one might think of the Family Movie Act, these distinctions – important to Congress a 

year ago -- remain important dividing lines between exempted conduct and commercial 

scale copyright infringement. 

Finally, the suggestion that anyone should be able to market copies of edited 

versions of movies to the public is a very dangerous concept, especially if that editing 

consists of additions as well as deletions. While you may think that the making of certain 

edits to a movie would be in the public interest, there can be a very great divide between 

your concept of what is in the public interest and what someone else thinks is in the 

public interest. The movie “Titanic” provides an example. In the sketch scene with Kate 

Winslet and Leonardo DiCaprio, certain editing technologies allow companies to cover 

up the unclothed actress while others would allow companies to feature her unclothed in 

other parts of the movie. However, both acts violate copyright law, regardless of the 

difference of opinion regarding which scenario (clothed or unclothed) is preferable. 

The Constitution prohibits Congress from enacting laws that discriminate against 

certain speech. Thus, even if one could write a law that permitted "good" edits, but not 

"bad" edits of a movie, such a law would be immediately struck down by the courts. 

Congress has already done all that it reasonably can and should do to encourage the 

availability of family friendly films. More importantly, the movie industry is responding 

to marketplace demand for family friendly films. Any attempt by Congress to permit 

unauthorized editing of movies to produce "family friendly" versions will either 

encourage family UNfriendly versions as well, or run afoul of Constitutional protections 

of free speech. 

Thank you for giving me the opportunity to appear here today. 

 MR. STEARNS. Thank you. Ms. Bronk. 

MS. BRONK. Good afternoon, Chairman Barton, Chairman Stearns, 

Ranking Member Schakowsky and members of the subcommittee. My 

name is Robin Bronk and I am Executive Director of The Creative 

Coalition. I am honored and proud to be called upon to testify at this 

hearing, and as a working mother, I thank you for your time and efforts 

on behalf of American families. 

 The Creative Coalition is a nonprofit, nonpartisan public advocacy 

organization of the entertainment industry. We were founded in 1989 by 

prominent figures in the creative community and we work to educate and 

mobilize leaders in the arts community on issues of public importance. 

Our members are actors, actresses, writers, producers, directors, 

community leaders, educators and others involved in America’s creative 

arts. I thank you for having me here today to address this issue that is so 

important to so many members of my organization. 

 Article I of the U.S. Constitution gave Congress the authority to 

protect intellectual property in order to promote the arts and sciences. 

This construct has been spectacularly successful and time tested, I might 

add, in protecting and nourishing the arts which are essential to a 

flourishing American culture. Nowhere perhaps is America’s 

contribution to the arts more pronounced than in the cinema. 

 Movies are an American art form. It is not just another business. It 

is not just about money and it is not about any payday. Yet too often 
24

there is a tendency to view filmmaking that way. We don’t have the 

same problem when discussing literature or when we discuss sculpture. 

Just think how different this discussion today would be if we were 

talking about for-profit companies censoring America’s great novels to 

omit material that someone found objectionable. Moviemakers are 

artists and the creative choices that they make are at the heart of their 

artistic expression, and artistic expression is one of the very cornerstones 

of our Nation. 

 I would like to talk for just a moment about my personal experience 

dealing with the artists involved in making motion pictures. While the 

media seem obsessed with big-budget movies and blockbuster releases, 

the truth of the matter is that moviemaking is the antithesis of a 

guaranteed get-rich-quick scheme. My members dedicate years of their 

lives to getting films completed and a message, a lesson, a moment in 

history in front of the public. In many instances, actors, even the most 

lauded in the business, work for scale wages just to ensure that pictures 

get made and messages are heard. Directors pour themselves into 

projects that if they ever looked at the statistics, they would never know 

to expect to make much if any money at all. 

 I mention this because discussion of these new technologies often 

turns quickly to how movie studios and artists don’t necessarily lose 

money due to the release of these unauthorized edits. If this were just 

about money, however, we wouldn’t even be having this discussion. 

Absent any involvement from Capitol Hill, there are already tremendous 

economic pressures in Hollywood to make movies that can get a G or PG 

rating because those movies have the broadest possible paying audiences. 

 Why then are these artists making movies with content that some 

find objectionable knowing they will get ratings that will limit their 

potential audience? They do it because they are artists. They are 

working to tell a unique story, to convey a specific feeling to the 

audience, to reflect an image of our reality back to us, and for many 

artists, including material that some may find objectionable to telling a 

story or making a story believable to an audience so that the movie 

screen doesn’t act as a barrier between the filmmaker and the viewer. 

 The old axiom is true: art imitates life. Walk the halls of this 

building or the sidewalks of Washington and you will hear language that 

finds its way into films. If you read the morning newspaper or if you 

watch the evening news, you will see violence that some would object to 

in films. And love stories are universal. 

 Subjectively editing movies can change effect and meaning. 

Filmmakers have historically gotten into enormous fights about edits 

with studios which are paying for production because edits can change 

the essence of art. That is why it is so important to all of us as 
25

consumers, as citizens and as creators ourselves that art not be subjected 

to unauthorized altering and then marketed under the artist’s name 

without permission. 

 At the same time, members of The Creative Coalition would be the 

first to tell you that all content may not be appropriate for all audiences. 

Writers, directors and actors, they all have kids of their own. In fact, my 

members routinely make movies they don’t allow their own children to 

watch. It is not rocket science. It is parenting 101 that teaches us that 

not everything that is appropriate for an adult is appropriate for a child. 

The creative community has supported the ratings system, and last year’s 

Family Entertainment and Copyright Act gave parents additional choices 

for controlling what their families watch. Ultimately, people don’t have 

to watch a movie. The same idea holds true for film like sculpture and 

like any other art. I firmly believe that we can achieve the objectives that 

all here seek without interfering with the artistic vision that our freedom 

of expression and our copyright laws exist to foster, and frankly, giving a 

darn just doesn’t hold up when you just have to give something else. 

 I thank you all for your time and look forward to your questions. 

 [The prepared statement of Robin Bronk follows:] 

PREPARED STATEMENT OF ROBIN BRONK, EXECUTIVE DIRECTOR, THE CREATIVE 

COALITION

Good afternoon Chairman Stearns, Ranking Member Schakowsky and members of 

the Subcommittee. My name is Robin Bronk, and I am the Executive Director of The 

Creative Coalition. 

The Creative Coalition is a nonprofit, nonpartisan advocacy organization of the 

entertainment industry. Founded in 1989 by prominent figures in the creative community, 

The Creative Coalition works to educate and mobilize leaders in the arts community on 

issues of public importance. Our members are actors, actresses, writers, producers, 

directors, and others involved in America’s creative arts. I thank you for having me here 

today to address this issue that is so important to so many members of my organization. 

Article I of the U.S. Constitution gave Congress the authority to protect intellectual 

property in order to promote the sciences and the arts. The system has been spectacularly 

successful in promoting arts in America. Nowhere, perhaps, is America’s contribution to 

the arts more pronounced than in cinema. 

Movies are an American art form. It’s not just another business. It’s not just about 

money. Yet, too often, there’s a tendency to view filmmaking that way. We don’t seem 

to have this same problem when discussing literature or sculpture. Just think how 

different this discussion today would be if we were talking about for-profit companies 

censoring America’s great novels to take out material that they found objectionable. 

Moviemakers are artists, and the creative choices that they make are at the heart of their 

artistic expression. 

 I’d like to talk for just a moment about my personal experience dealing with the 

artists involved in making motion pictures. While the media seem obsessed with big 

budget movies and blockbuster releases, the truth of the matter is that moviemaking is a 

labor of love more than some get-rich-quick scheme. My members dedicate years of 

their lives to getting projects done. In many instances, actors -- even famous names -- 
26

work for scale wages just to ensure that pictures get made. Directors pour themselves 

into projects that they never expect will make them much, if any, money at all. 

I mention this because discussion of these new technologies often turns quickly to 

how movie studios and artists don’t necessarily lose money due to the release of these 

unauthorized edits. If this were just about money, however, we wouldn’t even be having 

this discussion. Absent any involvement from Washington, there are already tremendous 

economic pressures in Hollywood to make movies that can get G or PG ratings because 

those movies have the broadest possible paying audience. 

Why then are these artists making movies with content that some find objectionable, 

knowing they’ll get ratings that will limit their potential audience? They do it because – 

as artists – they’re working to tell their unique story, to convey a specific feeling to the 

audience, to reflect their image of our reality back to us. And for many artists, including 

material that some may find objectionable is essential to telling their story or making a 

story believable to an audience so that the movie screen doesn’t act as a barrier between 

the filmmaker and the viewer. 

The old axiom is true: art imitates life. Walk the halls of this building of the 

sidewalks of Washington, and you’ll hear language that finds its way into films. If you 

read the morning newspaper or watch the evening news, you’ll see violence that some 

would object to in films. And love stories are universal. The fact that all of us here were 

conceived and born is testament to that. 

To edit movies can change their effect or their meaning. Filmmakers even get in 

enormous fights about edits with the studios, which are paying for production, because 

edits change the artwork. That’s why it is so important to my members that their art not 

be altered without their permission and then marketed under their names. 

At the same time, the members of The Creative Coalition would be the first to tell 

you that all content may not be appropriate for all audiences. Writers, directors, and 

actors, they have kids of their own. In fact, my members routinely make movies they 

don’t allow their own children to watch. The creative community has supported the 

ratings system. A few years ago, the ratings system was expanded to give parents more 

specific information about why a movie received the rating it did, all in an effort to give 

parents information they can use to make decisions for their own families. And last 

year’s Family Entertainment and Copyright Act gave parents additional choices for 

controlling what their families watch. Ultimately, people don’t have to watch a movie if 

they don’t want to see what’s in it. If you don’t want to see statues with nudity, just don’t 

go to the classical art museum. 

The same idea holds true for film, which – like sculpture – is art. I firmly believe 

that we can achieve the objectives that all here seek without interfering with the artistic 

vision that our freedom of expression and our copyright laws exist to foster. 

I thank you all for your time and look forward to your questions. 

 MR. STEARNS. Mr. Schultz. 

MR. SCHULTZ. Thank you. On behalf of the Electronic Frontier 

Foundation, I appreciate the subcommittee’s invitation to appear today. 

 As the subcommittee is well aware, the shift to digital media has 

created new tensions between ordinary Americans and copyright holders. 

We saw this come to a head in a recent lawsuit of Huntsman v. 

Soderbergh. At issue in that case was a longstanding American tradition 

of parents exercising control over the way their children watch movies 

versus the power of copyright owners to control their viewing 

experience. In the past parents had exercised this control either by 
27

making wholesale choices about what to buy or by spending the time and 

energy to watch every single program they could with their children. But 

today companies such as CleanFlicks and ClearPlay are offering parents 

products and services to help them more efficiently protect their children 

from content of which they are concerned. The question is though, how 

does and should the law treat these companies? 

 Many copyright owners have a very limited concept of the rights of 

parents and consumers to customize their viewing experience. They 

believe that the law should allow the copyright owner strict control over 

the home movie watching experience. Yet copyright law has never 

provided such broad control. In fact, consumers have always been able 

to customize their purchases whether copyrighted or not. For example, 

when you buy a car, you can decide what kind of tires you want to put on 

it or what color you want to paint it. In the home, when you buy a bed, 

you can decide what kind of sheets or pillows you want to put on it. If a 

family wants to play a game of Monopoly or Trivial Pursuit, they can 

change the rules and they don’t have to ask the game maker even though 

the game is copyrighted. And when you put your kids to sleep at night, 

you can choose what part of their favorite story to read and what part to 

emphasize without having to ask the story’s author. In fact, some of you 

will remember that this was exactly the plotline of the popular film, “The 

Princess Bride” where the grandfather entertains his sick grandson by 

reading a book aloud and skips the boring parts, a sort of pre-digital 

ClearPlay, if you will. 

 The digital era though has complicated this matter. Every computer, 

every iPod, every cell phone is a copy machine of sorts and when copies 

are made, copyright law controls much of what you can and can’t do 

with those devices. But consumers shouldn’t lose their freedom to 

customize their experience just because they have decided to take a step 

into the digital world. We can and should respect the copyrights of the 

media makers and at the same time preserve the rights of parents to make 

judgments about what is appropriate within their homes and for their 

families. 

 Consider the example of searching and viewing Internet websites. 

Today parents have a wide variety of options for customizing their 

children’s Internet experience. There are filtering tools such as Google’s 

SafeSearch which limit what information is available when children go 

online. While we at EFF have some very serious concerns when these 

tools are made mandatory and some concerns about overblocking, it is a 

very different matter when parents voluntarily use them in the home to 

provide viewing options for children. 

 Imagine, however, if the rules that the MPAA wanted in the 

Huntsman case applied to online content. Web pages are just as 
28

copyrightable as movies or music. Applying the studios’ legal theory to 

the Internet, this might prohibit parents from customizing or filtering 

their children’s Internet experiences just as the MPAA wanted to prohibit 

them from customizing or filtering the movie watching experience. It 

might also prohibit companies from offering customizing technologies 

for Web browsing just as the MPAA wanted to prohibit CleanFlicks and 

ClearPlay from offering such technologies for home movie viewing. 

 Thankfully, Congress has repeatedly endorsed market-based 

mechanisms as a proper way for parents to avoid content they don’t like 

without intruding on the preferences of others. This has also fostered a 

healthy market for tools for parents to use. Without such devices, 

parents are almost powerless to provide supervision for their families in a 

digital world. Yet copyright law threatens the development of many 

such tools for home movie viewing. For example, in the Huntsman case, 

the MPAA did raise the specter of section 1201 of the Digital 

Millennium Copyright Act, implying that any tool that is used to copy or 

modify the contents of a DVD is per se illegal, even if those actions are 

legal under the test for fair use or serve lawful purposes, such as backing 

up one’s DVD collection or, in this case, providing lawfully purchased 

edited versions of a movie for home viewing. 

 Fortunately, a strong and practical solution to part of this problem is 

pending in H.R. 1201, the Digital Media Consumer Rights Act of 2005, 

which allows both individuals and companies to modify and access the 

contents of a DVD for lawful or fair uses only. There can certainly be no 

more lawful or fair use in my opinion than to help parents customize 

their children’s home movie viewing experience. H.R. 1201 would not 

only allow parents to do this but would also allow companies to make the 

products and services that parents depend on to accomplish this 

technologically. 

 Thank you. 

 [The prepared statement of Jason Schultz follows:] 

PREPARED STATEMENT OF JASON SCHULTZ, STAFF ATTORNEY, ELECTRONIC FRONTIER 

FOUNDATION

On behalf of the Electronic Frontier Foundation, I appreciate the Subcommittee’s 

invitation to appear today. As the Subcommittee is well aware, the shift to digital media 

has created new tensions between ordinary Americans and copyright holders. We saw 

this come to a head in the recent lawsuit of Huntsman v. Soderbergh. At issue in that case 

was a long-standing American tradition of parents exercising control over the way their 

children watch movies versus the power of copyright owners to control our viewing 

experience. In the past, parents had exercised this control either by making wholesale 

choices about what they buy or spending the time and energy to sit and watch every 

program with their child. Today, however, companies like CleanFlicks and ClearPlay are 

offering parents products and services to help them more efficiently protect their 

children. The question is, how does and should the law treat these companies? 
29

Many copyright owners have a very limited concept of the rights of parents and 

consumers to customize their viewing experience. They believe that the law should allow 

them strict control over home movie watching. Yet copyright law has never provided 

such broad control. In fact, consumers have always been able to customize their 

purchases. For example, when you buy a car, you can put whatever tires you like on it or 

paint it any color you wish. In your home, you can put whatever sheets or pillows you’d 

like on the bed. If your family wants to play a game of Monopoly or Trivial Pursuit by a 

different set of rules, they can do so without the game maker’s permission. And when 

you put your kids to sleep at night, you can choose to read whatever part of their favorite 

story you wish, again without having to ask permission of the story’s author. In fact, 

some of you will remember that this was exactly the plotline in the popular film, The 

Princess Bride, where the grandfather entertains his sick grandson by reading a book 

aloud and skipping the boring parts. Sort of a pre-digital Clearplay, if you will. 

The digital era has complicated this matter. Every computer, every iPod, every cell 

phone is a copy machine of sorts. When copies are made, copyright law controls much of 

what you can and can’t do with those devices. But consumers should not lose their 

freedom to customize their experience just because they have decided to step forward 

into the digital world. We can and should respect the copyrights of the media makers and, 

at the same time, preserve the rights of parents to make judgments about what is 

appropriate within their homes and for their families. 

Consider the example of searching and viewing Internet websites. Today, parents 

have a wide variety of options for customizing their children’s Internet experience. There 

are filtering tools such as Google’s SafeSearch that limit what information is available 

when children go online. While we at EFF have serious objections when these tools are 

made mandatory, it’s a very different matter when parents use them at home to provide 

customized viewing options for children. 

Imagine, however, if the rule that the MPAA wanted in the Huntsman case applied 

to online content. Webpages are just as copyrightable as movies or music. Applying the 

studios’ legal theory in Huntsman to the Internet, this might prohibit parents from 

customizing or filtering their children’s Internet experience, just as the MPAA wanted to 

prohibit them from customizing or filtering their children’s movie viewing experience. It 

might also prohibit companies from offering customizing technologies for web browsing, 

just as the MPAA wanted to prohibit CleanFlicks and ClearPlay from offering such 

technologies for movie watching. 

Thankfully, Congress has repeatedly endorsed market-based mechanisms as the 

proper way for parents to avoid content they don’t like without intruding on the 

preferences of others. This has also fostered a healthy market in tools for parents to use. 

Without such devices, parents are almost powerless to provide supervision for their 

families in the digital world. Yet copyright law currently threatens the development of 

many such tools for the home viewing environment. For example, in the Huntsman case, 

the MPAA raised the specter of Section 1201 of the Digital Millennium Copyright Act, 

implying that any tool used to copy or modify the contents of a DVD is per se illegal, 

even if those actions are legal under the test for fair use and serve lawful purposes, such 

as backing up one’s DVD collection or providing a lawfully purchased edited version of a 

movie for home viewing. 

Fortunately, a strong and practical solution to part of this problem is pending before 

Congress. H.R. 1201, the Digital Media Consumer’s Rights Act of 2005 (DMCRA), 

allows both individuals and companies to access and modify the contents of a DVD for 

lawful or fair uses only. There can certainly be no more lawful or fair use than to help 

parents customize their children’s home movie viewing experience. H.R. 1201 would not 

only allow parents to do this but would also allow companies to make the products and 

services that parents depend on to accomplish this technologically. 
30

Again, thank you, Mr. Chairman, for the opportunity to appear before the 

Subcommittee to address these important issues. We appreciate being asked to be here 

and look forward to working with you and your staff as you examine these issues further. 

 MR. STEARNS. Thank you. I will start off with my questions. Ms. 

Bronk, let me ask you something. When you go in high school and you 

read “Pride and Prejudice” by Jane Austin, a lot of high school students 

have a very difficult time with it, so then what they do is, they go and get 

the Cilff Notes of “Pride and Prejudice” and they read that, and perhaps 

they might go home and find on their mother’s shelf a Reader’s Digest

version of “Pride and Prejudice.” You could go the same way with “The 

Iliad.” Recently “The Iliad” as translated has been synopsized and 

summarized. These are classic works and yet there doesn’t seem to be 

any hew and cry against these people. In fact, there are business books 

that are summarized all the time that I can subscribe to and it will take 

the latest business book from maybe the CEO of IBM and then 

summarize and it give a very short version of it. In fact, there is one 

website that actually takes it and brings it down to one or two sentences. 

So there are all kinds of creativity that have been done. Why is that 

different than what either ClearPlay or CleanFlicks Media is doing? 

 MS. BRONK. Well, I beg to differ in that I don’t think that you will 

find an educator that will say that Cliff Notes does take the place of a 

work of literature. In fact, I think that while there are summaries 

available, while there are shortcuts available, while there are executive 

summaries, it is to not be in lieu of the work of art. 

 MR. STEARNS. But if the person wants to make the decision that 

they don’t want to read the work of art and they want to be able to go, as 

Mr. Schultz said, to the market and maybe get a summary or a synopsis 

from one of these fellows, why couldn’t they do that? 

 MS. BRONK. I think they could but I think at the end of the day, will 

your child get more out of “Beowulf” or the executive summary out of 

Beowulf? 

 MR. STEARNS. Well, if he won’t read “Beowulf,” then he will get 

more out of it if he reads the summarized version of it. 

 MS. BRONK. I don’t know. I think I would still prefer to have my-- 

 MR. STEARNS. I am not saying it is exact analogy but I am just 

saying that you have something dealing with books, even current books 

that come out. “The Da Vinci Code,” any of these books sometimes are 

summarized and sometimes people will pick up these books because they 

don’t have the time to read them and maybe in some cases they would 

like to get these movies but they don’t necessary want to go through all 

the sex scenes, the violent scenes and the profanity scenes, they just want 

to get the spiritual side of the movie. 
31

 Let me ask Mr. Aho, do you--maybe both you and Mr. Erb, if the 

Movie Act of 2005 had not passed, do you believe ClearPlay would have 

been found to be infringing? 

 MR. AHO. No, I think we would have won. I am encouraged by the 

fact that again the U.S. Register of Copyrights gave her--testified before 

Congress and her opinion was that we did not infringe. However, I 

believe that even if we would have won that summary judgment, we 

would have been sued again by Hollywood and again and again and 

again because there are enough constituencies there that don’t want us to 

exist. 

 MR. STEARNS. Mr. Feehery, what is your answer to if the movie act 

had not passed, do you believe ClearPlay would have been found to be 

infringing? What does the Motion Picture Association say? 

 MR. FEEHERY. I don’t know the answer to that question. You know, 

I-- 

 MR. STEARNS. Mr. Aho is indicating that you would think they were 

infringing. 

 MR. FEEHERY. Well, I think that right now Congress has passed a 

law on this very subject and I think that they have had--you had in the 

Congress a lot of very talented people coming through and creating that 

law and I think that they tried to find a way to create that law that was 

not going to in their minds abuse the copyright law. 

 MR. STEARNS. But doesn’t the film industry take edited--make 

edited movies--because I am on the airplane lots of times and I see 

movies that have been edited, particularly if you go on cruise lines or to 

foreign countries. I guess the question is, what is the percentage of total 

revenue of these edited movies? If not, if you can’t tell me specifically 

the amount of money, why doesn’t the industry sell these edited versions 

if I saw it going to California or going to Singapore? I mean, if you have 

an edited version and you are doing it yourself and you are complaining 

these folks are doing it, why can’t I buy that? 

 MR. FEEHERY. Mr. Chairman, I will get the answer to your question 

about how much revenue that brings. I don’t have that answer readily 

available. I don’t--we don’t really get into the commercial decisions of 

the studios. That is not what we do. Each studio makes their own 

commercial decisions on how to best market the movies. My experience 

with them is they all want to make money but that has been my 

experience with them. 

 MR. STEARNS. If you could just give us a little bit what you think 

that the movie sales are in the edited version it would be helpful. 

 MR. FEEHERY. I will get that for you, Mr. Chairman. 

 MR. STEARNS. And what percentage of the total revenue is probably 

the better if you don’t want to reveal the percentages, and I guess the real 
32

question is, can I buy an edited version that the movie industry does? 

Can I buy that edited version I see on the airlines, Mr. Erb? 

 MR. ERB. No, sir, you can’t. 

 MR. STEARNS. Okay. 

 MR. ERB. Those movies are edited by a company called Swank 

which has a contractual relationship with the studios, and part of that 

contractual relationship is that those movies may not be sold to the 

public. 

 MR. STEARNS. So Ms. Bronk, it looks like the movie industry is 

doing exactly what you are saying that these folks should not be doing 

and they are selling it to the cruise ship, the airlines and foreign countries 

yet you are complaining that these people want to do the same thing and 

so I just find an inconsistency. Does that make any sense? 

 MS. BRONK. Well, there is a difference between authorized editing, 

and I would assume, and I don’t know, but I would assume that Swank 

does have the permission of the producer, the director, whoever owns the 

copyright on that film. They have decided to give Swank artistic license. 

You know, and I go back to--I was thinking about what you were saying 

about the Cliff Notes version because as a parent, I am constantly in that 

“Beowulf” struggle, if you will, but I think that there is a reason why in 

literature, you know, since the beginning of time, we have focused on the 

classics for children and we have tried everything that we can to make 

sure that the children get the why’s, the wherefore’s and the tenets of the 

classics in their unedited versions. 

 MR. STEARNS. Mr. Erb, it doesn’t appear to me that they are saying 

they are willing to do this editing and give the authorization to this 

company to do it. They are sort of saying we want to control everything 

here, and I don’t know if monopoly is the word but at least the 

appearance is, they want to control but they don’t want you to have that 

control because for some reason they don’t trust you. 

 MR. ERB. Well, the best solution here, clearly, Mr. Chairman, would 

be if the studios would edit their own movies, and that would solve all of 

the debate. The issue would be over, and frankly, it was always our hope 

that our effort would have that result and we would have walked away at 

the end of the day feeling as though we had been successful if we could 

just get Hollywood to offer edited-- 

 MR. STEARNS. You had a very high purpose in mind. 

 MR. ERB. We did, and in fact, when the VHS format was the only 

format available, it would have been much more difficult to deliver 

edited movies but they did announce at the time that DVDs came out that 

they would start to provide on a DVD because of the larger scale that the 

DVD format provides an R or PG-13, a PG and a G-rated version of 

every movie, and there actually were four or five movies produced in 
33

that format. They are incidentally historical items now that will probably 

appear in the Smithsonian at some point in time. If you find one, I 

suggest you hold onto it. It will be worth a lot of money one day. 

Those--but they stopped after those four or five movies for no reason, 

with no explanation and have never provided them since, and if they 

would just do that, this debate would be over. 

 MR. STEARNS. Mr. Barton. 

 CHAIRMAN BARTON. Thank you. Well, I think we all are in 

agreement that America is America because we protect individual 

property and property rights and creativity, freedom of speech and the 

First Amendment. That is what makes us a great society. But there are 

lots of nuances within that about how different Americans have different 

values and that is what we are trying to figure out here. You know, in 

1939 when “Gone with the Wind” was made, when Clark Gable walked 

out at the end of the movie and turned around to Scarlett O’Hara, or 

Vivian Leigh, and said, “Frankly, Madam, I don’t give a damn,” it had an 

impact because that was a word that you didn’t hear on the radio or you 

didn’t hear in the movies. I mean, that was creative and it did have 

dramatic effect because it was so, almost in the movie context, unique. It 

also took major, major negotiation to get that in the movie but it was in 

the movie. Today there are many, many movies that in every sentence 

there is a profanity, you know, and I am going to change the verb but, 

you know, when some of the dialog is “what the flip is going on, it has 

been a flipping day, I am so flipped up, I don’t know what the flip I am 

going to do” and the other character says, “I agree with you” you know, 

and it just goes on and on and on. I don’t see a whole lot creative about 

that. I mean, it just kind of loses context. So I understand that the 

creative community has got the right to be creative and I understand in 

America that means you have the right to be vulgar and you have the 

right to be gross and you have the right to be profane but I don’t think 

that sells if it is just repetitive. 

 So my first question to you, Mr. Feehery--and it is good to see you 

on that side of the podium. I am used to seeing you back here or calling 

me from the Speaker’s office and telling me I have to do something. It is 

good to have you over there for a change. Do you off the top of your 

head know what the movies that are actually nationally distributed, what 

percentage have the different ratings like G, PG, MA and R? I mean-- 

 MR. FEEHERY. Yeah. The MPAA-rated films, about 4 percent are 

rated G, about 11 percent are rated PG, about 24 percent are rated PG-13, 

62 percent are rated R and 0.17 percent are rated NC-17. 

 CHAIRMAN BARTON. Sixty-two are rated R. Now, do you know 

what the sales percentages are? Do the sales percentages track that? 
34

 MR. FEEHERY. You know what, I don’t have those percentages in 

front of me. I know that last year a lot of family movies did very, very 

well at the box office. I don’t have the percentages in front of me. 

 CHAIRMAN BARTON. Okay. But in general, I am not tying you 

down to specifics but you said 4 percent are G and 4 percent are PG. Is 

that-- 

 MR. FEEHERY. About 11 percent are PG. 

 CHAIRMAN BARTON. Eleven percent. 

 MR. FEEHERY. And then 23 percent are PG-13. 

 CHAIRMAN BARTON. But 62 percent are R but the PG and the G 

have a higher percent of actual viewing. Is that--11 percent are PG but it 

has got 20 percent of the market? 

 MR. FEEHERY. I don’t have that breakdown for you, sir. 

 CHAIRMAN BARTON. Mr. Erb, do you know? 

 MR. ERB. I don’t have the breakdown, the actual numbers, but I am 

assured that what you say is absolutely true. 

 CHAIRMAN BARTON. I mean, is it fair to say that while 62 percent of 

the movies that are made in America are rated R, they have considerably 

less than 62 percent of the market? 

 MR. ERB. And conversely, while only 4 percent are G, they have a 

much higher percentage. 

 CHAIRMAN BARTON. Is that a--Mr. Feehery and Miss Bronk, do you 

agree that generically that is a fair statement? 

 MR. FEEHERY. I think that kind of confirms what Miss Bronk was 

saying. Miss Bronk was saying, you know, the artistic impulse is alive 

and well and they-- 

 CHAIRMAN BARTON. We are not here to constrain artistic impulse, 

okay? If you want to make a movie and every word is a cuss word 

spoken naked in front of a camera pouring chocolate over you, go to it. 

 MS. BRONK. I think that is being released at Sundance this year. 

 CHAIRMAN BARTON. I don’t think it is going to sell but if you want 

to do it, God bless you. That is what America is all about. Now, my 

point is, why doesn’t the industry do what Mr. Erb encouraged you, edit 

different versions for the PG market and the G market so that if you put 

all this--I was in Hollywood last summer and I went around to every 

major studio head and had a very nice chat in their offices with all their 

Oscars arranged around them on shelves and stuff, and they all to a 

person from the Disney to the Warner, you know, right on down the line, 

how expensive it is to make a movie. If you want a general distribution 

movie, it is going to cost you $100 million minimum just to scratch, just 

to scratch. If you invest that kind of money, why in the world wouldn’t 

you all have an R version that is totally as creative and then take that 

same print but edit it a little bit so that the PG and the general admission 
35

market might buy it too? I would think that would be good business. 

Why don’t you do that? Either one of you. 

 MR. FEEHERY. Mr. Chairman, I would say that at the MPAA, we 

don’t get into the commercial decisions of the studios. They all make 

decisions based on their business models. My experience with them is 

that they want to the best thing they can for their stockholders. So they 

probably look at the business models--they have not explained those 

business models to me so I don’t have a complete answer for you. 

 CHAIRMAN BARTON. Mr. Aho. 

 MR. AHO. I don’t think it is a business-model decision. I have had 

probably 30-some meetings with studios discussing this issue. I think it 

stems back to the directors. Directors simply don’t want--directors 

simply do not want--you know, they don’t want people to see versions of 

their movie without that stuff in them. I have heard directors say to me, 

say that we all loathe the fact that we have been forced contractually 

through our directors’ agreements to offer up TV versions and airline 

versions; we hate them. So I don’t think it is--it is not a business 

decision. I am quite certain of that. It would be very easy, especially 

with, you know, high-def and Blu-ray and some of the capacity on DVDs 

to offer another version, to offer alternate scenes and things. That is not 

the problem. The problem-- 

 CHAIRMAN BARTON. My time has expired. I have got one final 

question. 

 MR. STEARNS. Mr. Chairman, why don’t you take your full--we are 

going to have a second round. If you would like to take your second 

round right now, feel free to. 

 CHAIRMAN BARTON. I want to ask--your company was buying a 

hard copy, editing that copy, making a dub of it but an edited dub and 

then selling is. Is that correct? 

 MR. ERB. And renting. 

 CHAIRMAN BARTON. But you-- 

 MR. ERB. We bought an original copy for every edited version that 

was produced, so there was no economic loss whatever to Hollywood. 

 CHAIRMAN BARTON. So if Mr. Stearns wanted to buy an edited 

version of a movie and Mr. Murphy did and I did, you would buy three 

copies? 

 MR. ERB. That is correct. Originally our business format was that 

you had to buy the original, send it to us or bring it to us and we would 

edit it. That just became too cumbersome as we got larger and so we 

ultimately got to the point where we purchased the movie for the 

customer or the customer verified to us in writing that they already 

owned the movie, because we didn’t want to-- 
36

 CHAIRMAN BARTON. But you physically, you made a copy that was 

physically different than the copy that was provided to you? 

 MR. ERB. That is correct, and-- 

 CHAIRMAN BARTON. And you edited out the violence or the sex or 

the profanity? 

 MR. ERB. That is correct. 

 CHAIRMAN BARTON. And what the court ruled, they said Mr. Aho’s 

technology doesn’t change--it takes the DVD and just basically he 

programs so it skips over certain things but it doesn’t change the hard 

copy. You actually create a copy that is physically different, so he is 

legal and you are not. 

 MR. ERB. That is fundamentally--the issue surrounds the definition 

of the phrased “fixed copy” and I wish that Congressman Green had not 

left because he said he is editing movies at home, and the reality is, he is 

probably in violation of the law if he is doing that. 

 CHAIRMAN BARTON. I doubt that he is going to be arrested though. 

Now, Mr. Aho, your business is still functional? 

 MR. AHO. Yes. 

 CHAIRMAN BARTON. You are in business and-- 

 MR. AHO. That is correct. 

 CHAIRMAN BARTON. --Mr. Erb, you have gone out of business? 

 MR. ERB. That is correct. 

 CHAIRMAN BARTON. What were your sales the last year just kind of 

generally? I don’t need--if you are privately held, I don’t need to know 

the exact number but were you--millions of sales or hundreds of 

thousands or-- 

 MR. ERB. No, we were--again, we both rented and sold and just to 

clarify, if we had 10 movies in rental circulation, for example, we owned 

10 copies of the original and kept them in a separate closet, and yes, our 

revenues were in the millions. 

 CHAIRMAN BARTON. In the millions. So Mr. Feehery, your people 

because of artistic value are just going to use profanity away with that. 

You are just going to throw all that away? You are not interested in a 

broader market? 

 MR. FEEHERY. Well, Mr. Chairman, actually we had some very real 

problems with CleanFlicks. For example, I have an example here where 

you could just check off a box and say yeah, I already own this DVD and 

just send me the edited version, so-- 

 CHAIRMAN BARTON. Well, forget that. They are out of business. 

 MR. FEEHERY. Well, I know, but that was-- 

 CHAIRMAN BARTON. That is not my question. My question is, to 

protect the director’s artistic creativity, you are going to accept a smaller 

market? 
37

 MR. FEEHERY. Well, I think that like any business, the motion 

picture business is a complicated business and there is a-- 

 CHAIRMAN BARTON. Are there any plans right now for any of the 

major studios to put out edited versions of their films, yes or no? 

 MR. FEEHERY. I don’t know. I don’t know the answer to that 

question because that would be a commercial decision of the different 

studios. 

 CHAIRMAN BARTON. Can you get the answer to that? 

 MR. FEEHERY. I will try to get the answer for that, yes, I will. 

 MR. ERB. And Mr. Chairman, if I could just make one quick 

comment. Not all movies--and we are talking in generalities I know 

here--but not all movies are susceptible to editing and so the movie that 

you described where every single sentence, for example, it probably has 

a subject matter content and probably is not one that is really realistically 

editable. But I am glad Mr. Aho used the film “The Patriot.” This is a 

perfect example of a movie in my judgment which should be--everybody 

in America should see this movie, and it should be in the public school 

systems, and but for a couple of scenes, one of which we saw and then 

another one that occurs later in the film that are quite gory and quite 

bloody, the removal of those does not in any way change the impact of 

the film or its validity or its value and yet that film is probably for my 

parents going to be one that they couldn’t put their children in front of 

because of these gory scenes, and there is just no reason for that. 

 CHAIRMAN BARTON. Well, I just think it is unfortunate, Mr. 

Chairman, that, you know, we passed this law and it allows Mr. Aho’s 

technology, which is a good thing, but yet it doesn’t allow what Mr. Erb 

was doing, although it looks like he bent over backward, bought the 

copies and all that and there may be a disagreement whether it was selfenforcing or what, but we obviously have a market in America for 

family-value entertainment and we have got artists that can provide it 

and they for their own reasons like to spice it up a little bit and that is 

preventing a large segment of the market from developing, and I think 

that is too bad. 

 MR. STEARNS. Will the gentleman yield? 

 CHAIRMAN BARTON. Yes. 

 MR. STEARNS. Maybe one area that we could explore on the 

questions that the Chairman is talking about, is this a question of money? 

I mean, we keep talking about artistic creativity that you don’t want to 

sacrifice. Is it possible that the Motion Picture Association doesn’t want 

to do this because the original film then won’t be bought and the price 

margin is such--in other words, I guess the question is to the group off of 

Mr. Barton’s time, is there--Mr. Erb, do you think there is a question of 

money here involved besides artistic protection? 
38

 MR. ERB. Mr. Chairman, I think that different directors fall in 

different categories and certainly I think Mr. Aho has identified a certain 

group of directors that simply produce material that they do not want 

changed in any way for whatever reason, and there may be a variety of 

movies behind that. I don’t think that it is an economic issue. While I 

understand Ms. Bronk’s statement that there are some actors and 

directors that may produce movies for next to nothing, I don’t find any of 

the directors with whom I am familiar down in the soup kitchens. Most 

of these people are multi-billionaires, if not millionaires, and so it is not 

an economic decision. 

 CHAIRMAN BARTON. We are okay with them being multimillionaires. That is a good thing. 

 MR. ERB. And I am not-- 

 CHAIRMAN BARTON. It is more money to tax and-- 

 MR. ERB. I am not-- 

 CHAIRMAN BARTON. --more homes to have events in. I mean, that 

is not all bad. 

 MR. ERB. And I am not denigrating the point. I am just pointing 

out-- 

 MR. STEARNS. Use more energy. 

 MR. ERB. I am not denigrating the point. I am just pointing out that 

it is not an economic or a business decision. 

 CHAIRMAN BARTON. My final question: Do we need to go back and 

revisit the law and modify it so that under--I don’t want an unlicensed 

editing process. I think that the creators ought to be able to oversee or 

sign off on the edited versions but I for the life of me can’t figure out 

why the industry itself doesn’t want to work with the Mr. Erbs of the 

world to come up with PG and G-rated versions of their R material that 

make them more money. 

 MR. ERB. And we would agree to having oversight on the editing 

process. 

 CHAIRMAN BARTON. Because if it is okay for Mr. Aho to do it, it 

ought to be okay in some way under a royalty or licensing agreement for 

Mr. Erb to make a physical copy that is a little bit different, and with 

that, I yield back, Mr. Stearns. 

 MR. STEARNS. The gentleman yields back. Mr. Murphy. 

 MR. MURPHY. Thank you, Mr. Chairman. I appreciate the 

comments here on this issue. I wanted to ask a couple clarifications of 

some of these things, and that is, when the companies do make edits, let 

us say the way things stood, who makes the decision? Who has the final 

word in the decision and where do you get the information to gather in 

terms of what is left in and what is not? Does this include overdubbing 

some things too? 
39

 MR. AHO. Well, we don’t overdub. We are purely subtracting. We 

skip and mute. We don’t add content. 

 MR. MURPHY. So not like what might be on broadcast TV where 

someone impersonates a person’s voice-- 

 MR. AHO. Someone would say like “bull spit.” No, we don’t do 

that. We--our policy is to get as descriptive as possible with what is--

what events are in each one of our categories, we have 14 categories, and 

then to let the consumer decide what in fact will be filtered in their 

experience. So in some cases it is very easy. We know what an F word 

is, and when you get to that category and it says, you know, F words, 

then we know what that is. Some of them are a little bit more subtle such 

as what is action violence versus intense violence but we try to get as 

descriptive as possible and let the consumer decide. 

 MR. MURPHY. Is that--are those things then that the studios 

complain about in terms of what is left, either is skipped over or--I mean, 

do those come through as complaints from the directors and others that 

you have hurt their artistic license? 

 MR. AHO. I think the issue--and I have spent some time with the 

DGA as well in discussing these director issues, and I think it is just a 

matter in general of anyone else besides the director having any impact 

on how that--on that movie. I think it is a lack of trust. I think they are 

concerned with what we could do. 

 MR. MURPHY. Have there been specific complaints then from the 

movie industry about some of the ways these have been provided as an 

option? 

 MR. AHO. None to us, no. 

 MR. MURPHY. Mr. Erb, the same thing. 

 MR. ERB. Yes, there has been no specific complaints. It is just a 

general complaint. 

 MR. MURPHY. But from the movie industry, are there specific 

complaints that have come up, examples of concerns? 

 MR. AHO. Well, I think when it comes to CleanFlicks, which wasn’t 

our complaint, it was also the complaint of the court when they found 

their business was illegitimate. ClearPlay is settled law and we don’t 

have any complaints that I know of about the settled law. 

 MR. MURPHY. Well, but I thought the point that you were making 

before, sir, was that you were saying that some of the directors don’t 

want anybody touching their films of any kind. They didn’t even like the 

versions that were on airplanes. Is that-- 

 MR. FEEHERY. I didn’t say that. 

 MR. MURPHY. I thought-- 

 MR. AHO. I made that point. 

 MR. MURPHY. You made that point? 
40

 MR. AHO. Yes. 

 MR. MURPHY. What is that based upon? So you have heard some 

complaints or-- 

 MR. AHO. Yeah, I have had directors tell me that, and in fact in 

public forums. 

 MR. MURPHY. I would like to explore that though. What kind of 

things have they said about that? 

 MR. AHO. Well, they have said that in discussing the standard 

directors’ agreements that they have sort of been forced into authorizing-

-unless they are a very powerful director, they are forced in authorizing 

airline and television versions and they don’t like it. They feel like it is 

not their work, it is not what they wanted to portray to the public and 

they wish they could turn back the hands of time and never have to agree 

to that again. So when we take it a step further, we say now that a third 

party is in fact managing that process, I think that is just all the more 

egregious to that community. 

 MR. MURPHY. And Ms. Bronk and Mr. Feehery, these are not 

concerns you have heard from directors or from people in the studios? 

 MS. BRONK. It is a very amazing thing that we are talking about not 

money but the artistry of it, and I do find it amazing in this day and age 

that there are still artists that care about the integrity of their art and I 

think they should be commended. 

 MR. MURPHY. But that is stretching it. I mean, there are some films 

that what they have in terms of violence and nudity or words are really 

not an art form but they are-- 

 MS. BRONK. Well-- 

 MR. MURPHY. I am not clear what content-- 

 MS. BRONK. --I mean, is Shakespeare an art form? It is all--what is 

wonderful in my living room where there probably isn’t a more 

conservative television viewer than me, you know, I am offended by 

Cinderella’s cleavage, so-- 

 MR. MURPHY. That is a cartoon, you know. 

 MS. BRONK. Well, I have three daughters. But I have an on and off 

button. I have a fast forward button, and-- 

 MR. MURPHY. But I don’t think the concern is when you are 

watching Cinderella with your daughters present. The concern is a lot of 

things around when parents are not present, that it is something that is 

encouraged by the industry. When I look at things like the top ten 

grossing movies of all time, I think that only one of these, “Titanic” that 

had any nudity in it--“Lord of the Rings,” “Pirates of the Caribbean,” 

“Harry Potter,” “Star Wars,” “Lord of the Rings,” “Jurassic Park,” 

“Harry Potter,” “Shrek” unless there was something there I didn’t catch--

”Harry Potter.” These are the top grossing movies. If it is a matter of 
41

answering to stockholders, which is that part of what has to happen, it is 

a business. It always seemed to me that it is more difficult to make a 

movie that is art without using violence and foul language in it than it is 

to--I think some of the best movies I have ever seen have been ones that 

have been able to tell a story without going to that. But I still think it is a 

matter for parents to know that they cannot spend all day, every day, you 

know, when the kids are watching TV doing that but I am one that tends 

to support providing some options for parents to have that but I want to 

know how that-- 

 MS. BRONK. I also have an oven in my house that, you know, when 

I am not there I hope my children are not using it. I have potato chips in 

my cabinet that I hope they are not eating for dinner, and there has to be 

some--as a parent, I am obligated to educate my children about what they 

should ingest both physically and in their minds. So-- 

 MR. MURPHY. I wish life was that simple but it is not and I think it 

is gratuitous to make a comment like that because it becomes a matter 

that there are--despite what people continue to deny to us, there are 

influences that happen when you are dealing with other messages there 

and it is a concern. I mean, but the issue that goes with that is, yes, 

parents need to be very careful because it is sometimes not just an 

individual word or scene but it can be the whole theme of a movie, and if 

they are not even watching what their kids bring home, that is a problem, 

and I am with you on that. That is a grave concern. Parents ought to 

know the themes in the movies, what are the lessons that are taught. 

That has nothing to do with the words and you can’t edit it out, just say 

don’t buy it or don’t let the kids rent it, but there are--whenever we have 

had hearings about other issues in terms of what can be done, it has 

continually come up to us, we can’t--Congress and the government, they 

have been very good at legislating morality or mandating intelligence or 

litigating compassion but it has been a matter that somehow at least 

provides people with options so parents can be parents and that is the 

dilemma we have. 

 MR. ERB. Congressman Murphy, if I could just refer--make one 

comment about your reference to specificity of complaint. Our--we have 

been in public debate with many members of the DGA at one point or 

another and our experience is that none of them have ever seen one of 

our edited movies, so it is not about specific complaints. It is about a 

general concept. I doubt that any of the others on the panel besides Mr. 

Aho and I have ever seen one of our edited movies either. It is a 

conceptual problem. It not a specific problem. 

 MR. MURPHY. Thank you. 

 MR. STEARNS. I thank the gentleman. The gentlelady from 

Tennessee, Mrs. Blackburn. 
42

 MRS. BLACKBURN. Thank you, Mr. Chairman, and I thank all of you 

for your time and for being here, and I apologize that I have been kind of 

the up and down member back and forth. It seems like this is 

appointment day and they all decided to show up at the same time, so 

thank you all very, very much for being here and working with us on 

this. 

 Mr. Schultz, I wanted to ask you a question. The video cards for 

computers that have the video capture devices on them that would 

essentially copy the content of a movie from a DVD or from a TV cable 

and feed it through the computer, do any of the current video cards, any 

of these video cards have the ability to copy that content and feed that 

through the computer from your movies? They are used for games. 

 MR. SCHULTZ. Well, I am not familiar with all the different 

specifications but generally when you have video cards, in order for a 

computer to work at all to display video, a copy has to be made. I mean, 

this is the way copyright law is now. It ended being sort of a regulatory 

scheme for all the computers in some ways. 

 MRS. BLACKBURN. Okay. So you have got a video card and it has a 

video capture device and you can capture that content and feed it through 

the computer and then are consumers able to edit that copy from their 

computer, that captured copy from their computer? 

 MR. SCHULTZ. Many of them are in fact. It depends--I mean, you 

are describing a general system so I am trying to extrapolate a little but 

there are many options where consumers can take screen shots where 

they take a picture of what is on their screen at a given time or take a 

little snippet of something, and in fact Mr. Barton earlier referred to 

YouTube, and often you will see on these kind of video websites scenes 

from when someone is playing a video game or doing something else on 

their computer, you will see a small snippet that they want to show their 

friends. 

 MRS. BLACKBURN. Are there any lawsuits against any of those 

capture devices? Do you know? 

 MR. SCHULTZ. There have been some threats against some people 

who try to capture--to sell cards that allowed you to capture and save 

things but there are none currently going on that I am aware of although 

there is intense pressure on those manufacturers to not expand those 

capabilities. 

 MRS. BLACKBURN. Is that practice of taking that video--is that 

basically the same process that Mr. Erb was describing? 

 MR. SCHULTZ. Well, I don’t know that Mr. Erb went through all the 

details, but as I understand it, there are actually two different parts of the 

process that need to be addressed. One is, how do you get the content 

out of the DVD in the first place, and this is when I mentioned H.R. 1201 
43

because there is an argument that has been made by the motion picture 

studios and other content owners that even getting any of the content out 

of the DVD to begin with to make the editing is a violation of the law, so 

that needs to be addressed. Now, if it has been gotten out in an 

authorized way through sort of a DVD player on a computer, usually it is 

then locked down so that it is hard to capture for various reasons. But if 

you are able to get it, you know, then the actual capturing of the content, 

if the end result of what you do is considered a fair use, then many courts 

have held that the intermediate copies that you have to make, the editing 

copies, are also fair use. 

 MRS. BLACKBURN. Okay. Mr. Feehery, I wanted to come to you 

because I think in large part much of the discussion that has been 

generated about this comes about because of what we see as the ratings 

creep going on and the Harvard study of course alluded to that and, you 

know, Ms. Bronk, I would take issue with some of the things that she has 

said. While I am a fierce advocate of intellectual property, I think that 

there are--I would take issue with what you said, and people expect some 

discretion and decency and some wise choices made and many times that 

is the problem that they have with how movies are rated and parents feel 

as if they are caught unknowing, and I had a question from just having 

gone to a theater lately, where do you display an explanation of how a 

movie is rated, and if a parent is taking their child to a theater to see a 

film and they walk in there, where can they get that information for what 

the MPAA’s reason was for rating a film a certain way? 

 MR. FEEHERY. They can go to MPAA.org. 

 MRS. BLACKBURN. No, I am talking about when they go to that 

theater. 

 MR. FEEHERY. Oh, in a theater. There should be descriptors as you 

walk in the theater. 

 MRS. BLACKBURN. Are they readily available? 

 MR. FEEHERY. I think they should be. In most theaters they should 

be readily available, yeah. 

 MRS. BLACKBURN. Okay. Where would a parent find those? 

 MR. FEEHERY. Well, there is plenty of different places--the 

newspapers, our websites, right outside the box office, usually they have 

all kind of descriptors where you can see the ratings. 

 MRS. BLACKBURN. Okay. 

 MR. FEEHERY. And the descriptors. 

 MRS. BLACKBURN. Okay. Well, I guess I was at a theater that just 

did not have those readily available and could not see them and-- 

 MR. FEEHERY. Tell me where. I will call my friends at NATO. 

 MRS. BLACKBURN. Well, I would encourage you all to be certain 

that those are--the theater owners should be certain that that information 
44

is there so that the parents can see that easily because much of the 

discussion that we have had on this issue, on the ratings issue, on the 

ESRB issue comes from the fact that people cannot find the information, 

they don’t understand how or why a decision was made, and while they 

want to be able to--they are very frustrated with the fact that in the 1970s 

when they were a teen, certain things would have been rated R and now 

they are seeing that as a PG or a PG-13 and it gets to be very, very 

confusing, especially when you are trying to rear children and put some 

controls around there, so I would encourage you all to maybe revisit that. 

 MR. FEEHERY. Okay. 

 MRS. BLACKBURN. Thank you very much. Mr. Chairman, I yield 

back. 

 MR. STEARNS. Either one of the members on this side have 

additional questions? We are getting ready to close up. I was going to 

ask one myself but feel free of the gentlelady from Tennessee or Mr. 

Murphy. If not, I want to thank all of you for coming. I just have one 

question for Ms. Bronk. Are there some in the industry that are upset or 

unhappy with ClearPlay’s technology? I mean, how do you feel--I mean, 

you saw what they are doing and they are out there in the market and 

they are continuing to do this. I mean, just be honest, how do you feel 

about-- 

 MS. BRONK. I actually have a question about that as a parent. How-

-if a kid watches a sanitized or filtered version of “The Patriot” and they 

don’t realize--my daughter goes over to her friend’s house and her 

mother plays a sanitized version of “The Patriot” and I think that well, 

she has watched “The Patriot.” How do we know--how does a kid know 

which version they have seen? Do you--are there resources for the 

parents to give to the kids so that the kid knows what they have seen and 

that they haven’t seen the full version? 

 MR. AHO. Well, in your home, you have to have a player that has 

ClearPlay on it and then you have to physically turn ClearPlay on and 

choose to watch the movie with ClearPlay. I guess if you were in 

somebody else’s home, there is a small safeguard in that at the beginning 

of the movie we agreed as part of the Family Movie Act to display a 

prominent--I think it is eight or nine seconds--a prominent notice that 

this movie has been--your viewing of this matter was revised with 

ClearPlay. 

 MS. BRONK. Have you created any resources for the children so that 

they know that they--I mean, as a parent, I think that would be helpful to-

-so that my 10-year-old knows that she hasn’t seen the real version of 

“The Patriot” but she has seen a filtered version, so-- 

 MR. STEARNS. Generally we ask the questions but-- 

 MS. BRONK. I am sorry about that. 
45

 MR. STEARNS. That is okay. Mr. Murphy, go ahead. 

 MR. MURPHY. Just on that because I am curious, is this in reference 

to something like if a child goes to another parent’s house and says but 

my mom let me see the movie? Is that what that is about? I mean-- 

 MS. BRONK. Well, also I am thinking about my own children 

thinking that they have seen “The Patriot” and they are not realizing that 

no, you didn’t see the real Patriot and it is not appropriate for you and 

you are not Patriot-ready. 

 MR. MURPHY. I am not familiar with that. Was that somewhere 

between R and PG? 

 MR. AHO. It was an R rating. 

 MR. MURPHY. No, but I am not--if some certain language and 

scenes are taken out of there, does the child still get the theme of the 

movie which is there? I mean, if they discuss the Revolutionary War in 

the second grade without all the other details, that means they didn’t 

cover it. I just wondered. Anyway, sorry, Mr. Chairman. 

 MR. STEARNS. Mrs. Blackburn? Okay. Let me just close by saying 

the point of this hearing was not censorship. The whole point is to give 

the option, choice to the parents, give the parents the power to be able to 

make these choices, so this is what the hearing is about and we see 

through this discussion that there is available now--I guess Mr. Aho, 

through your company, a parent can go out and buy your device and 

today take it home and they--it will be preprogrammed, right, for certain 

movies? 

 MR. AHO. Yes. 

 MR. STEARNS. So you would tell them--I am just looking at how it 

actually works, so if a parent wants to do this, they go out and buy your 

player, they bring it home. They go to Blockbuster, they bring home a 

DVD and the player is already preprogrammed with codes, flags on the 

player to delete these scenes? 

 MR. AHO. Filters for some of the movies come loaded. You go to 

our website when you sign up and you get filters for 2,000 movies that 

are-- 

 MR. STEARNS. So you download those-- 

 MR. AHO. And then as more come out every week as the DVDs are 

released, we will provide filters for them. 

 MR. STEARNS. So your device is hooked up to the computer and so 

you download--if you have a movie, you just download those codes that 

go into your device and then it automatically edits it? 

 MR. AHO. It actually can work any way that you move data. I mean, 

we have a couple of products, one that you just take a little USB stick, a 

little jump drive, a flash drive, stick it in your computer, and that is what 

this one is. We have got another one with a modem, and the vision is, is 
46

that virtually any way you watch movies, whether it is cable, satellite, set 

top, video on demand, any way that you watch movies, you could have 

this option in the same way that you have the option of pressing a mute 

option on virtually any device. That is absolutely feasible 

technologically, and then people could decide, you know, do I want to 

pay for this, how do I want to watch the movie. 

 MR. STEARNS. Well, just to take their side for a moment, they could 

argue that your people would be deleting maybe sex and profanity and 

violence but you might also be deleting some things that go to the heart 

of the story where you have to have that exclamation of emotion to do it. 

You are making that decision, and from their standpoint, they are saying 

whoa, we don’t want you making that decision. 

 MR. AHO. And I understand that. I mean, if we take out the heart of 

a movie, we will go out of business because you don’t want to watch a 

movie with the heart removed, and we cannot succeed. I think Mr. Erb’s 

comments were right. The comments are always--the concern is always 

that the sky is falling but we have never really looked out the window. 

 MR. STEARNS. But no one is even regulating or determining what 

decisions you are making. You make them pretty much on your own. 

 MR. AHO. In the same way that when a television version is 

released, someone has made those decisions. When an airline version is 

released, someone has made those decisions, and we trust that the end 

product will be something that we will find satisfactory. If it is not, we 

move on and we find another way to be entertained. 

 MR. STEARNS. Are you progressing? I mean, are your revenues 

increasing pretty dramatically every year? 

 MR. AHO. They have been, yes. 

 MR. STEARNS. How many players are out there in America today? 

 MR. AHO. We have--there is about 100,000-plus players out. We 

hope to have a lot more. Obviously some litigation slowed us down. 

 MR. STEARNS. So you have 100,000-plus players and you have over 

2,000 films that you have developed the flags for? 

 MR. AHO. Yes. 

 MR. STEARNS. Well, I think we have covered this, and I appreciate 

again the patience and I am glad we didn’t get interrupted with votes, and 

with that, the subcommittee is adjourned. 

 [Whereupon, at 3:40 p.m., the subcommittee was adjourned.] 

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