39–006 

109TH CONGRESS REPT. 109–33 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005 

APRIL 12, 2005.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany S. 167] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(S. 167) to provide for the protection of intellectual property rights, 

and for other purposes, having considered the same, reports favorably thereon without amendment and recommends that the bill do 

pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Materials Submitted for the Record ....................................................................... 8 

Hearings ................................................................................................................... 19 

Committee Consideration ........................................................................................ 19 

Vote of the Committee ............................................................................................. 19 

Committee Oversight Findings ............................................................................... 19 

New Budget Authority and Tax Expenditures ...................................................... 19 

Congressional Budget Office Cost Estimate .......................................................... 19 

Performance Goals and Objectives ......................................................................... 22 

Constitutional Authority Statement ...................................................................... 23 

Section-by-Section Analysis and Discussion .......................................................... 23 

Changes in Existing Law Made by the Bill, as Reported ..................................... 24 

Committee Jurisdiction Letters .............................................................................. 37 

Markup Transcript .................................................................................................. 39 

Minority Views ......................................................................................................... 69 

2 

PURPOSE AND SUMMARY

S. 167 penalizes those who camcord motion pictures in movie 

theaters; creates civil and criminal penalties for those who willfully 

distribute pre-release works; clarifies the legal status of certain 

services and technologies that enable individuals to skip and mute 

content on certain works in the privacy of their own home; reauthorizes the National Film Preservation Board and Foundation; 

and corrects a technical error in the ‘‘Sonny Bono Copyright Term 

Extension Act’’ that limited library and archive access to certain 

works during the last 20 years of term. 

BACKGROUND AND NEED FOR THE LEGISLATION

Testimony received at several Congressional hearings highlighted the need for the different Titles of this legislation, which is 

similar to portions of H.R. 4077, H.R. 4586, and S. 2391 of the 

108th Congress. The legislation is also a companion to H.R. 357, 

introduced by Congressman Lamar Smith during the 109th Congress. 

Title I of the Act is similar to S. 1932 and § 8 of H.R. 4077 from 

the 108th Congress. This title is the ‘‘Artists Rights and Theft Prevention Act of 2005.’’ Section 102 of Title I creates a new § 2319B 

in Title 18, of the United States Code prohibiting the act of using 

or attempting to use an audiovisual recording device to transmit or 

make a copy of a motion picture or other audiovisual work in a motion picture exhibition facility. The new section is modeled after the 

existing ‘‘anti-bootlegging’’ statute found in § 2319A of Title 18, of 

the United States Code which prohibits the unauthorized recording 

of, and trafficking in, sound recordings and music videos from live 

musical performances. 

This new provision deals with the very specific problem of illicit 

‘‘camcording’’ of motion pictures in motion picture exhibition facilities. Typically, an offender attends a pre-opening ‘‘screening’’ or a 

first-weekend theatrical release, and uses sophisticated digital 

equipment to record the movie. A camcorded version is then sold 

to a local production factory or to an overseas producer where it is 

converted into DVDs or similar products and sold on the street for 

a few dollars per copy. This misuse of camcorders is a significant 

factor in the estimated $3.5 billion in annual losses the movie industry suffers because of hard-goods piracy. 

Causing greater financial harm, these camcorded versions are 

posted on the Internet through certain peer-to-peer networks and 

made available for millions of users to download. According to studies by the Motion Picture Association of America (‘‘MPAA’’), 

camcorded versions of movies in theatrical release account for more 

than 90 percent of the first copies of motion pictures illegally distributed on the Internet. S. 167 will provide prosecutors with resources to stem the piracy of commercially valuable motion pictures 

at its source. 

The Act would not, and is not intended to, reach the conduct of 

a person who uses a camera, picture phone, or other photographic 

device to capture a still photo from an exhibition of a motion picture. Rather, the Act reaches the conduct of a person who uses an 

audiovisual recording device to capture or transmit a ‘‘series of related images that are intrinsically intended to be shown by the use 

3 

1 17 U.S.C. § 101. 

of machines or devices such as projectors, viewers, or electronic 

equipment, together with accompanying sounds, if any.’’ 1

Notwithstanding this clarification, nothing in this legislation 

shall be interpreted to suggest that taking photographs in a movie 

theater is in any way condoned. Engaging in such conduct could 

still subject a person to civil or criminal liability under the Copyright Act. However, this provision is drafted narrowly to address 

the specific and pernicious problem of ‘‘camcording’’ copyrighted 

motion pictures. 

In addition, the bill makes clear that ‘‘possession of an audiovisual device in a motion picture exhibition facility may be considered as evidence in any proceeding involving this offense, but shall 

not, by itself, constitute sufficient evidence to support a conviction 

of this offense.’’ The Committee recognizes that the fact that someone has brought an audiovisual device may be critical evidence in 

a case against that person under this section. For example, smuggling a high-quality miniature camera and recording equipment 

into a movie theater may be highly probative of the intent to 

camcord. However, the Committee does not intend that the ‘‘attempt’’ language be used to convict, for example, a tourist who ends 

a day of sightseeing by bringing his camcorder to a motion picture 

theater but does not attempt to use it to record or transmit a motion picture. This language is intended to guard against such an injustice. 

Further, the bill is not intended to permit a prosecution of, for 

instance, a salesperson at a store who uses a camcorder to record 

portions of a movie playing to demonstrate the capabilities of a 

widescreen television. The offense is only applicable to transmitting 

or copying a movie in a motion picture exhibition facility, which 

has to be a movie theater or similar venue ‘‘that is being used primarily for the exhibition of a copyrighted motion picture.’’ In the 

example of the salesperson, the store is being used primarily to sell 

electronic equipment, not to exhibit motion pictures. (For the same 

reason, the statute would not cover a university student who 

records a short segment of a film being shown in film class, as the 

venue is being used primarily as a classroom, and not as a motion 

picture exhibition facility.) 

Moreover, § 102 is not intended to permit prosecution of individuals making camcorded copies of movies off their television screens. 

The definition of a motion picture exhibition facility includes the 

concept that the exhibition must be ‘‘open to the public or is made 

to an assembled group of viewers outside of a normal circle of a 

family and its social acquaintances.’’ This definition makes clear 

that someone recording from a television in his home does not meet 

that definition. 

It is important to emphasize that the clause ‘‘open to the public’’ 

applies specifically to the exhibition, not to the facility. An exhibition in a place open to the public that is itself not made to the 

public is not the subject of this bill. Thus, for example, a university 

film lab may be ‘‘open to the public.’’ However, a student who is 

watching a film in that lab for his or her own study or research 

would not be engaging in an exhibition that is ‘‘open to the public.’’ 

4 

Thus, if that student copied an excerpt from such an exhibition, he 

or she would not be subject to liability under this Section. 

The Committee will oversee the Justice Department to ensure 

that it exercises appropriate prosecutorial discretion when enforcing § 102 of S. 167. While ‘‘fair use’’ is not a defense against a 

§ 2319(B) violation, Federal prosecutors should use their discretion 

not to bring criminal prosecutions against activities within movie 

theaters that would constitute fair use under the copyright laws. 

Additionally, prosecutors should consider whether a potential defendant was on notice that camcording violated the law. The Committee appreciates the commitment by the National Association of 

Theatre Owners (NATO) and MPAA to make available to every motion picture theater in the United States a conspicuous sign informing patrons that camcording in the theater is punishable by a Federal criminal penalty. The Committee fully expects that NATO and 

the MPAA will abide by that commitment. The posting of such a 

warning will serve as an important factor to help authorities determine whether a prosecution under this statute would be appropriate. 

An immunity provision has been included for good faith efforts 

by theater owners and other associated individuals to detain in a 

reasonable manner those they suspected of camcording. This provision and the reasonableness test should be viewed as a companion 

to shopkeeper privilege statutes found in all States. This section 

does not pre-empt any State laws. 

Section 103 creates a criminal penalty for the willful distribution 

of works being prepared for commercial distribution. The Committee has been made aware of numerous examples of efforts to 

camcord new movies during their opening days of release followed 

immediately by either mass duplication and distribution of DVD 

copies or Internet distribution of the same movie. Although the 

harm to the distribution of physical or Internet copies of works 

when legal copies are available has long been established, the Committee notes the larger harm caused by those who distribute copies 

of works even before they are legally available to the consumer. 

Moreover, the Committee is aware of pre-release activity surrounding the creation and duplication of physical advertising signs 

prior to their initial installation. Finally, the Committee is aware 

of, and encouraged by, Department of Justice investigations and 

prosecutions of pre-release cases involving motion pictures, sound 

recordings, business software, videogame software, and book publications once the works have been released in final form. Section 

103 will ensure that there is a specific penalty for such illegal prerelease activity. 

Section 104 expressly requires the Register of Copyrights to issue 

regulations to establish a preregistration system for copyrighted 

works. Since works are generally not formally copyrighted until 

they are in final form and ready for distribution to the public, civil 

remedies for the distribution of pre-release works are lacking. This 

section will give the Register flexibility to determine which classes 

of works are appropriate for preregistration. The Committee believes that a class of work with only a few instances of infringement prior to authorized commercial distribution do not meet the 

test of a ‘‘history of infringement,’’ but otherwise leaves the decision to the discretion of the Register. 

5 

2 § 2B5.3 (b). 

3 Huntsman v. Soderbergh, 180 F.3d 1072 (9th Cir.) 

To encourage and ensure that preregistered works are formally 

registered when they are ready for such a filing, the new 17 U.S.C. 

§ 408(f)(4) created by § 104 limits civil suits in certain circumstances. By its express terms, the prohibition on infringement 

suits contained in § 408(f)(4) does not apply to suits concerning infringements commencing later than 2 months after first publication 

of a copyrighted work that had been preregistered with the Copyright Office. Therefore, notwithstanding a failure to meet the deadlines set forth in § 408(f)(4)(A) and (B), a copyright owner of a 

preregistered work can register his or her work under current law 

and bring infringement actions for infringements occurring more 

than 2 months after first publication. 

Further, a preregistration of a sound recording does not by itself 

constitute preregistration of the musical works embodied in the 

sound recording. Accordingly, a later infringement of a musical 

work contained in a preregistered sound recording would not be 

subject to the dismissal provision in § 408(f)(4) based on the 

preregistration of the sound recording. 

Section 105 directs the United States Sentencing Commission to 

review and update, if appropriate, the sentencing guidelines and 

policy statements surrounding several intellectual property rights 

crimes. The Commission has previously and successfully updated 

the guidelines to account for changes in the manner of intellectual 

property piracy. The Committee has included § 105 because of the 

unique harms and aspects related to the infringement of pre-release works. The existing guidelines allow for an increase in the 

base level offense in certain circumstances.2 Although the guidelines highlight two reasons for consideration of upward departures, 

the specific and magnified harms caused by the display, performance, publication, reproduction or distribution of a pre-release work 

appear to warrant their inclusion as a third reason for upward departure. 

Title II of the legislation includes text based upon legislation 

from the 108th Congress, H.R. 4586, the ‘‘Family Movie Act of 

2004.’’ The Committee strongly believes that, subject to certain conditions, copyright and trademark law should not be used to limit 

a parent’s right to control what their children watch in the privacy 

of their own home. A dispute involving this issue is currently being 

heard in the U.S. District Court for the District of Colorado.3 Testimony provided by the Register on June 17, 2004, makes clear that 

some parties to the suit should not face liability for their current 

actions, while others appear to be in violation of existing copyright 

law. The ‘‘Family Movie Act’’ clarifies the liability, if any, for the 

companies that are a party to this case and to other companies not 

a party to this case that may be interested in providing such services in the future. 

Objections to this legislation centered on four issues: 

1. A desire to limit the content that could be skipped to a narrow type of content for specific reasons and/or purposes; 

2. The for-profit nature of some of the companies that offer 

such services; 

6 

3. The impact upon television advertising in commercial, overthe-air broadcasts; 

4. The impact upon the moral rights of the director. 

To respect the First Amendment of the Constitution, the ‘‘Family 

Movie Act’’ is drafted in a content-neutral manner so that its operation and impact do not depend upon whether the content that was 

made imperceptible contains items that are often viewed as offensive, such as profanity, violence, or sexual acts. This content-neutrality also pertains to content made imperceptible that is rarely, 

if ever, viewed as offensive. The goal of the legislation has been to 

give the viewer the ability to make imperceptible limited portions 

of work that he or she chooses not to see for themselves or their 

family, whether or not the skipped content is viewed as objectionable by most, many, few, or even one viewer. Efforts to limit the 

application of the legislation to specific types of content were rejected by the Committee for First Amendment reasons. 

The for-profit nature of the entities providing services to the public that the legislation addresses has no bearing on the operation 

of the immunity from liability. The Committee is unable to discern 

a credible basis for creating a distinction between the for-profit or 

non-profit nature of companies that offer services covered by the 

Act. The vast majority of movies are made by for-profit companies. 

In addition, many motion picture companies now partner with advertisers to embed advertising within a movie. Television broadcasts of major sporting events often contain embedded advertising 

that in some cases appear to be part of the stadium hosting the 

event. Few, if any, disclosures are even made to all of the viewers 

that this is occurring and that they are seeing a modified version 

of the actual event. There is of course no option given to viewers 

to stop these for-profit entities from making such changes. 

One difference between this version of the ‘‘Family Movie Act’’ 

and the version that passed the House in the 108th Congress is the 

deletion of a reference in § 112 of H.R. 4077 to commercial advertisements and network or station promotional announcements. The 

Committee is aware of some dispute concerning automated television commercial-skipping devices. A copy of an exchange of letters between the Committee and the Register is attached. The 

Committee concurs with the Register’s determination that this Act 

has no bearing on either the legality or illegality of such services 

or any litigation over the issue. 

Although the Committee has not adopted a specific percentage or 

quantity of time test in place of the ‘‘limited portions’’ language, 

the Committee will rely upon judicial determination for what is a 

‘‘limited portion’’ of the work as a whole. It would be contrary to 

the legislation to interpret the ‘‘limited portions’’ test in a manner 

that would exclude actions that result in making imperceptible of 

20 minutes of a particular type of content (violence, sexual scenes, 

profanity, etc.) from a 100-minute motion picture. The 20-minute 

exclusion may in fact remove 100 percent of one or more types of 

such content in a movie, but it represents only 20 percent of the 

total running time of the movie, easily satisfying the plain meaning 

of ‘‘limited portions.’’ 

The plain meaning of S. 167 exempts actions brought under U.S. 

copyright and trademark law the ‘‘making imperceptible . . . of 

7 

4P.L. 105–298. 

limited portions of audio or video content’’ provided no fixed copy 

is created. 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. 

The Committee is aware of concerns regarding the legislation’s 

impact upon moral rights, particularly those of movie directors. 

The Committee had hoped to receive testimony from a representative of the director’s community on this issue at one of the Committee hearings on the issue, but no director was willing to testify. 

The Committee is aware of numerous motion pictures being edited 

for screen size, content, and time purposes with or without the director’s consent so that a motion picture can be displayed on the 

4×3 aspect ratios of standard definition televisions, on an airplane 

with objectionable language removed, and on television channels in 

the traditional 90 or 120-minute time slots. The Committee sees no 

difference between the impact upon the moral rights of directors of 

such modifications and someone wanting to prevent certain content 

from being displayed on their television. 

Finally, the Committee notes the failure of private sector negotiations with respect to one editing service to resolve the Huntsman 

v. Soderbergh civil suit. Although private sector negotiations and 

out-of-court settlements are an important part of the legal process, 

they cannot be expected to create a lasting solution when one party 

to the case is repeatedly burdened with the sole responsibility of 

traveling to all of the parties in the case to seek a settlement. Had 

some of the parties to the litigation have been more willing to act 

in good faith and resolve their differences out of court, the need for 

this legislation for at least one party would have been eliminated. 

Title III of the legislation reauthorizes the National Film Preservation Board (‘‘Board’’) and makes changes to the structure of the 

Board. It also reauthorizes the National Film Preservation Foundation (‘‘Foundation’’) with a corresponding authorization of Congressional funding for the program. The authorization for both had expired previously. The Committee expects the Board and Foundation 

to continue their effort to preserve older works and hopes that 

those companies and individuals who work in the motion picture 

business will be the primary source of donations to the Foundation. 

Title IV of the legislation fixes a technical, cross reference error 

in § 104 of the 1998 ‘‘Sonny Bono Copyright Term Extension Act’’ 4

that inadvertently limited access by libraries and archives to certain categories of works during the last 20 of a term. The Committee has confirmed with the relevant groups that the addition of 

‘‘(h)’’ to § 108(i) of Title 17 is appropriate and that it was inadvertently omitted from the 1998 Act. This is important because it limited library and archive access to certain works. 

8 

MATERIALS SUBMITTED FOR THE RECORD


S167A1.eps
9 


S167A2.eps
10 


S167A3.eps
11 


S167A4.eps
12 


S167A5.eps
13 


S167A6.eps
14 


S167CEA1.eps
15 


S167CEA2.eps
16 


S167ALL1.eps
17 


S167ALL2.eps
18 


S167AMA.eps
19 

HEARINGS

The Committee’s Subcommittee on Courts, the Internet, and Intellectual Property held a hearing in the 108th Congress on H.R. 

2517 on July 17, 2003, and received testimony from one witness on 

the issues addressed in Title I of S. 167. The Subcommittee held 

an oversight hearing in the 108th Congress on the issues addressed 

in Title II of S. 167 on May 20, 2004, with testimony received from 

five witnesses representing five organizations. The Subcommittee 

subsequently held a legislative hearing in the 108th Congress on 

a very similar version of Title II of S. 167. Testimony was received 

from four witnesses representing four organizations. 

COMMITTEE CONSIDERATION

On March 3, 2005, the Subcommittee on Courts, the Internet, 

and Intellectual Property met in open session and ordered favorably reported the bill S. 167, by a voice vote, a quorum being 

present. On March 9, 2005, the Committee on the Judiciary met in 

open session and ordered favorably reported the bill S. 167 without 

an amendment by voice vote, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of Rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the Committee consideration of S. 167. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of Rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, S. 167, the following estimate and comparison prepared by 

the Director of the Congressional Budget Office under section 402 

of the Congressional Budget Act of 1974: 

20 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, March 14, 2005. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 167, the ‘‘Family Entertainment and Copyright Act of 2005.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Melissa E. Zimmerman (for Federal costs), who can be reached at 226–2860, and Page 

Piper/Bach (for private-sector mandates), who can be reached at 

226–2940. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

S. 167—Family Entertainment and Copyright Act of 2005. 

SUMMARY

S. 167 would make several changes to current law regarding 

copyrighted works. The bill would specifically authorize the appropriation of $530,000 each year over the 2005–2009 period to the Library of Congress for preserving films in the Library’s collection. 

Assuming appropriation of the specified amounts, CBO estimates 

that implementing the bill would have no significant cost in 2005 

and would cost nearly $3 million over the 2005–2009 period. Enacting the bill would not have a significant effect on revenues or direct 

spending. 

S. 167 contains no intergovernmental mandates as defined in the 

Unfunded Mandates Reform Act (UMRA) and would not affect the 

budgets of State, local, or tribal governments. S. 167 would impose 

private-sector mandates as defined in UMRA. CBO estimates that 

the direct cost of those mandates would fall well below the annual 

threshold established by UMRA for private-sector mandates ($123 

million in 2005, adjusted annually for inflation). 

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of S. 167 is shown in the following table. For this estimate, CBO assumes that the bill will be 

enacted in fiscal year 2005. CBO assumes that the amounts authorized by the bill will be appropriated for each fiscal year and 

that outlays will follow the historical rate of spending for these activities. The costs of this legislation fall within budget function 370 

(commerce and housing credit). 

21 

By Fiscal Year, in Millions of Dollars 

2005 2006 2007 2008 2009 2010 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Authorization Level 1 1 1 1 1 0 

Estimated Outlays * 1 1 1 1 0 

BASIS OF ESTIMATE

S. 167 would make several changes to laws affecting copyrighted 

materials. Assuming the appropriation of the specified amounts, 

CBO estimates that implementing the act would not have a significant cost in 2005 and would cost nearly $3 million over the 2005– 

2009 period. Enacting this legislation would not have a significant 

effect on direct spending or revenues. 

Spending Subject to Appropriation 

Filtering Technology. Title II of S. 167 would specify that technology used to filter certain material out of movies for private viewing would not constitute a violation of copyright or trademark law. 

CBO estimates that implementing title II would have no effect on 

Federal spending. 

Film Preservation. Title III would authorize the appropriation 

of nearly $3 million over the 2005–2009 period to the Library of 

Congress for preserving films in the Library’s collection. It also 

would make technical changes to current law regarding film preservation. CBO estimates that implementing title III would not have 

a significant cost in 2005 and would cost about $3 million over the 

2005–2009 period. 

Revenues and Direct Spending 

Title I would establish new Federal crimes for the unauthorized 

recording of motion pictures in movie theaters or other venues and 

would provide for increased penalties for other acts relating to 

copyright infringement. Because those prosecuted and convicted 

under the act could be subject to criminal fines, the Federal Government might collect additional fines if the legislation is enacted. 

Collections of such fines are recorded in the budget as revenues 

(i.e., governmental receipts), which are deposited in the Crime Victims Fund and later spent. CBO expects that any additional revenues and direct spending would be less than $500,000 annually because of the relatively small number of cases likely to be affected. 

ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

S. 167 contains no intergovernmental mandates as defined in 

UMRA and would not affect the budgets of States, local, or tribal 

governments. 

ESTIMATED IMPACT ON THE PRIVATE SECTOR

S. 167 would impose two private-sector mandates as defined in 

UMRA. CBO estimates that the direct cost of those mandates 

would fall well below the annual threshold established by UMRA 

for private-sector mandates ($123 million in 2005, adjusted annually for inflation). 

22 

First, the bill would impose a private-sector mandate on copyright owners. Section 202 would limit the right of copyright owners 

to collect compensation under copyright law from persons using or 

manufacturing a technology that enables making limited changes 

to a motion picture for a private home viewing. According to testimony from the Patent and Trademark Office and other sources, no 

such compensation is currently received by copyright owners. 

Therefore, CBO estimates that the direct cost of the mandate, 

measured as net income forgone, would be small or zero. 

Second, section 202 would impose a private-sector mandate on 

manufacturers, licensees, and licensors of technology (manufactured 6 months or more after the bill’s enactment) that enables the 

making of limited portions of audio or video content of a motion 

picture imperceptible. Such manufacturers, licensees, or licensors 

would be required to ensure that the technology provides a clear 

and conspicuous notice that the performance of the motion picture 

is altered from the performance intended by the director or copyright holder of the motion picture. Complying with the mandate 

would exempt such manufacturers, licensees, or licensors from liability under section 32 of the Trademark Act of 1946. The direct 

cost of the mandate on those private-sector entities would be the 

total cost of providing the notice less the direct savings achieved 

by limiting their liability. CBO has no basis for determining the direct savings for the exemption from trademark liability. However, 

according to government and other sources, the technology to provide the required notice is readily available and is currently used 

by some manufacturers. Thus, CBO expects that the direct cost to 

comply with the mandate, if any, would be minimal. 

ESTIMATE PREPARED BY: 

Federal Costs: Melissa E. Zimmerman and Mark Grabowicz (226– 

2860) 

Impact on State, Local, and Tribal Governments: Theresa Gullo 

(225–3220) 

Impact on the Private Sector: Paige Piper/Bach (226–2940) 

ESTIMATE APPROVED BY: 

Peter H. Fontaine 

Deputy Assistant Director for Budget Analysis 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of Rule XIII 

of the Rules of the House of Representatives, S. 167 will assist the 

Department of Justice in its efforts to prosecute intellectual property theft; clarify the legal status of certain services and technologies that enable individuals to skip and mute content on certain works in the privacy of their own home; reauthorize the National Film Preservation Board and Foundation at the Library of 

Congress; and extend the availability of copyrighted works to libraries and archives. 

23 

5See, e.g., Ariz. Rev. Stat.13-3723(a); Cal. Penal Code 653z (a). Other states have added the 

copyright owner to the permission chain. See, e.g., Ohio Rev. Code Ann. 2913.07(A)(1) (requiring 

consent of the licensor). 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in Article I, Section 8, Clause 8 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Short Title. This section states that the legislation may 

be cited as the ‘‘Family Entertainment and Copyright Act of 2005.’’ 

Title I. The Artists’ Rights and Theft Prevention Act of 2005. Title 

I contains two primary components: the first creates new criminal 

penalties for those who camcord motion pictures in motion picture 

exhibition theaters; the second creates new civil and criminal 

causes of action for the willful distribution of works being prepared 

for commercial distribution. 

Subsection (a) of the new § 2319B created by Title I of S. 167 sets 

forth the substantive elements of the offense. Under this subsection, a person violates the statute when he or she, without the 

authorization of the copyright owner, knowingly uses or attempts 

to use an audiovisual recording device in a motion picture exhibition facility to transmit or make a copy of a motion picture or 

other audiovisual work protected under Title 17 or any part thereof. The legislation creates a new definition for the term ‘‘motion 

picture exhibition facility.’’ Other terms used in the legislation are 

defined in Section 101 of Title 17. 

Subsection (d) creates an immunity from liability for theater 

owners and associated individuals for their good faith efforts to 

reasonably detain someone they suspect of violating this Section in 

their theater(s). This provision is modeled upon numerous shopkeeper privilege statutes that exist in state and local laws. 

Subsection (f) clarifies that States may regulate the use of audiovisual recording devices in specific locations through the use of 

their police powers without impermissibly interfering with Federal 

copyright policy. The Committee is aware that several states have 

enacted legislation with proscriptions similar to those in the Federal law against using or attempting to use the recording functions 

of a camcorder or similar device without the express consent of a 

theater owner.5

Preemption of State criminal statutes may occur under either 

§ 301 of Title 17 where the gravamen of the state cause of action 

contains an element in addition to an allegation of wrongful copying or under the doctrine of conflict preemption. The Committee believes that statutes such as those above are qualitatively different 

for purposes of the ‘‘extra element’’ statutory preemption test under 

§ 301. They contain the extra elements of operation or attempted 

operation of a device, which does not involve copying at all and, 

perhaps more importantly, the entry onto property to perform an 

act that is both unauthorized by the real property owner and harmful to the lawful use of that property. Nonetheless, the purpose of 

this section is to make it unequivocally clear that neither § 301 nor 

the non-statutory doctrine of conflict preemption precludes the enVerDate Aug 04 2004 03:49 Apr 13, 2005 Jkt 039006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6601 E:\HR\OC\HR033P1.XXX HR033P1
24 

forcement of such statutes on the basis that they interfere with the 

express or implicit policies of the Copyright Act. 

Section 105 directs the United States Sentencing Commission to 

review and update, if appropriate, the sentencing guidelines and 

policy statements surrounding several intellectual property rights 

crimes. 

Title II. The Family Movie Act. Section 202(a) of the legislation 

creates a new subsection § 110 (11) of Title 17. This new subsection 

ensures that U.S. copyright law does not prohibit sanctions the use 

of any filtering service or technology that mutes or skips content, 

provided the service or technology: 

1. is confined to private, in-home use; 

2. for the household of the purchasing consumer only; and 

3. does not create a fixed copy of the alternate version. 

Section 202(b) of the legislation clarifies existing U.S. trademark 

law to ensure that it cannot be interpreted to proscribe the operation of services identified in § 202(a) so long as they display a 

clear and conspicuous notice that the altered version is not the performance intended by the director or copyright holder of the motion 

picture. 

The Committee believes that an on-screen disclaimer in large 

font at the beginning of a performance of a particular work that is 

displayed for a length of time suitable for the average viewer to 

read the notice is sufficient. Such notice would be similar to the 

FBI anti-piracy warnings shown at the beginning of most major 

motion pictures. This requirement begins 180 days after the legislation becomes law. Since the manufacturer of a physical device 

complying with the requirements maintains control over the device 

before the retail purchase point, consumer electronics manufacturers are the most likely point of inclusion of such notices. 

Title III. National Film Preservation Act of 2005. Title III reauthorizes the National Film Preservation Board and Foundation and 

makes several changes to the operation of each. Section 312(a) also 

authorizes appropriations not to exceed $530,000 in each of the fiscal years 2005 through 2009. 

Title IV. Preservation of Orphan Works Act. Title IV inserts a 

missing cross reference to 17 U.S.C. § 108(h) in 17 U.S.C. § 108(i). 

The inadvertent omission of the cross reference limited libraries 

and archives access to certain works during the last 20 years of 

term. This was not the Committee’s intent when it passed the 

‘‘Sonny Bono Copyright Term Extension Act of 1998.’’ 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of Rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

TITLE 18, UNITED STATES CODE 

* * * * * * * 

25 

PART I—CRIMES 

* * * * * * * 

CHAPTER 113—STOLEN PROPERTY 

Sec. 

2311. Definitions 

* * * * * * * 

2319B. Unauthorized recording of motion pictures in a motion picture exhibition 

facility. 

* * * * * * * 

§ 2319. Criminal infringement of a copyright 

(a) øWhoever¿ Any person who violates section 506(a) (relating 

to criminal offenses) of title 17 shall be punished as provided in 

subsections (b) øand (c) of this section¿, (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any 

other law. 

(b) Any person who commits an offense under øsection 

506(a)(1)¿ section 506(a)(1)(A) of title 17— 

(1) * * * 

* * * * * * * 

(c) Any person who commits an offense under øsection 

506(a)(2) of title 17, United States Code¿ section 506(a)(1)(B) of 

title 17— 

(1) * * * 

* * * * * * * 

(d) Any person who commits an offense under section 

506(a)(1)(C) of title 17— 

(1) shall be imprisoned not more than 3 years, fined under 

this title, or both; 

(2) shall be imprisoned not more than 5 years, fined under 

this title, or both, if the offense was committed for purposes of 

commercial advantage or private financial gain; 

(3) shall be imprisoned not more than 6 years, fined under 

this title, or both, if the offense is a second or subsequent offense; and 

(4) shall be imprisoned not more than 10 years, fined under 

this title, or both, if the offense is a second or subsequent offense 

under paragraph (2). 

ø(d)¿ (e)(1) * * * 

* * * * * * * 

ø(e)¿ (f) As used in this section— 

(1) the terms ‘‘phonorecord’’ and ‘‘copies’’ have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17; øand¿ 

(2) the terms ‘‘reproduction’’ and ‘‘distribution’’ refer to the 

exclusive rights of a copyright owner under clauses (1) and (3) 

respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 

17ø.¿; 

(3) the term ‘‘financial gain’’ has the meaning given the 

term in section 101 of title 17; and 

26 

(4) the term ‘‘work being prepared for commercial distribution’’ has the meaning given the term in section 506(a) of title 

17. 

* * * * * * * 

§ 2319B. Unauthorized recording of Motion pictures in a Motion picture exhibition facility 

(a) OFFENSE.—Any person who, without the authorization of the 

copyright owner, knowingly uses or attempts to use an audiovisual 

recording device to transmit or make a copy of a motion picture or 

other audiovisual work protected under title 17, or any part thereof, 

from a performance of such work in a motion picture exhibition facility, shall— 

(1) be imprisoned for not more than 3 years, fined under 

this title, or both; or 

(2) if the offense is a second or subsequent offense, be imprisoned for no more than 6 years, fined under this title, or 

both. 

The possession by a person of an audiovisual recording device in a 

motion picture exhibition facility may be considered as evidence in 

any proceeding to determine whether that person committed an offense under this subsection, but shall not, by itself, be sufficient to 

support a conviction of that person for such offense. 

(b) FORFEITURE AND DESTRUCTION.—When a person is convicted of a violation of subsection (a), the court in its judgment of 

conviction shall, in addition to any penalty provided, order the forfeiture and destruction or other disposition of all unauthorized copies of motion pictures or other audiovisual works protected under 

title 17, or parts thereof, and any audiovisual recording devices or 

other equipment used in connection with the offense. 

(c) AUTHORIZED ACTIVITIES.—This section does not prevent any 

lawfully authorized investigative, protective, or intelligence activity 

by an officer, agent, or employee of the United States, a State, or 

a political subdivision of a State, or by a person acting under a contract with the United States, a State, or a political subdivision of 

a State. 

(d) IMMUNITY FOR THEATERS.—With reasonable cause, the 

owner or lessee of a motion picture exhibition facility where a motion picture or other audiovisual work is being exhibited, the authorized agent or employee of such owner or lessee, the licensor of 

the motion picture or other audiovisual work being exhibited, or the 

agent or employee of such licensor— 

(1) may detain, in a reasonable manner and for a reasonable time, any person suspected of a violation of this section 

with respect to that motion picture or audiovisual work for the 

purpose of questioning or summoning a law enforcement officer; 

and 

(2) shall not be held liable in any civil or criminal action 

arising out of a detention under paragraph (1). 

(e) VICTIM IMPACT STATEMENT.— (1) IN GENERAL.—During the preparation of the presentence 

report under rule 32(c) of the Federal Rules of Criminal Procedure, victims of an offense under this section shall be permitted 

to submit to the probation officer a victim impact statement 

that identifies the victim of the offense and the extent and scope 

27 

of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim. 

(2) CONTENTS.—A victim impact statement submitted 

under this subsection shall include— 

(A) producers and sellers of legitimate works affected 

by conduct involved in the offense; 

(B) holders of intellectual property rights in the works 

described in subparagraph (A); and 

(C) the legal representatives of such producers, sellers, 

and holders. 

(f) STATE LAW NOT PREEMPTED.—Nothing in this section may 

be construed to annul or limit any rights or remedies under the 

laws of any State. 

(g) DEFINITIONS.—In this section, the following definitions shall 

apply: 

(1) TITLE 17 DEFINITIONS.—The terms ‘‘audiovisual work’’, 

‘‘copy’’, ‘‘copyright owner’’, ‘‘motion picture’’, ‘‘motion picture exhibition facility’’, and ‘‘transmit’’ have, respectively, the meanings given those terms in section 101 of title 17. 

(2) AUDIOVISUAL RECORDING DEVICE.—The term ‘‘audiovisual recording device’’ means a digital or analog photographic 

or video camera, or any other technology or device capable of 

enabling the recording or transmission of a copyrighted motion 

picture or other audiovisual work, or any part thereof, regardless of whether audiovisual recording is the sole or primary 

purpose of the device. 

* * * * * * * 

TITLE 17, UNITED STATES CODE 

* * * * * * * 

CHAPTER 1—SUBJECT MATTER AND SCOPE OF 

COPYRIGHT 

* * * * * * * 

§ 101. Definitions 

Except as otherwise provided in this title, as used in this title, 

the following terms and their variant forms mean the following: 

An ‘‘anonymous work’’ is a work on the copies or 

phonorecords of which no natural person is identified as author. 

* * * * * * * 

‘‘Motion pictures’’ are audiovisual works consisting of a series of related images which, when shown in succession, impart 

an impression of motion, together with accompanying sounds, 

if any. The term ‘‘‘motion picture exhibition facility’’’ means a 

movie theater, screening room, or other venue that is being used 

primarily for the exhibition of a copyrighted motion picture, if 

such exhibition is open to the public or is made to an assembled 

28 

group of viewers outside of a normal circle of a family and its 

social acquaintances. 

* * * * * * * 

§ 108. Limitations on exclusive rights: Reproduction by libraries and archives 

(a) * * * 

* * * * * * * 

(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other 

than an audiovisual work dealing with news, except that no such 

limitation shall apply with respect to rights granted by subsections 

ø(b) and (c)¿ (b), (c), and (h), or with respect to pictorial or graphic 

works published as illustrations, diagrams, or similar adjuncts to 

works of which copies are reproduced or distributed in accordance 

with subsections (d) and (e). 

* * * * * * * 

§ 110. Limitations on exclusive rights: Exemption of certain 

performances and displays 

Notwithstanding the provisions of section 106, the following 

are not infringements of copyright: 

(1) * * * 

* * * * * * * 

(9) performance on a single occasion of a dramatic literary 

work published at least ten years before the date of the performance, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped 

persons who are unable to read normal printed material as a 

result of their handicap, if the performance is made without 

any purpose of direct or indirect commercial advantage and its 

transmission is made through the facilities of a radio subcarrier authorization referred to in clause (8)(iii), Provided, That 

the provisions of this clause shall not be applicable to more 

than one performance of the same work by the same performers or under the auspices of the same organization; øand¿ 

(10) notwithstanding paragraph (4), the following is not an 

infringement of copyright: performance of a nondramatic literary or musical work in the course of a social function which 

is organized and promoted by a nonprofit veterans’ organization or a nonprofit fraternal organization to which the general 

public is not invited, but not including the invitees of the organizations, if the proceeds from the performance, after deducting the reasonable costs of producing the performance, are 

used exclusively for charitable purposes and not for financial 

gain. For purposes of this section the social functions of any 

college or university fraternity or sorority shall not be included 

unless the social function is held solely to raise funds for a specific charitable purposeø.¿; and 

(11) the making imperceptible, by or at the direction of a 

member of a private household, of limited portions of audio or 

video content of a motion picture, during a performance in or 

29 

transmitted to that household for private home viewing, from 

an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables 

such making imperceptible and that is designed and marketed 

to be used, at the direction of a member of a private household, 

for such making imperceptible, if no fixed copy of the altered 

version of the motion picture is created by such computer program or other technology. 

* * * * * * * 

For purposes of paragraph (11), the term ‘‘making imperceptible’’ does not include the addition of audio or video content that 

is performed or displayed over or in place of existing content in a 

motion picture. 

Nothing in paragraph (11) shall be construed to imply further 

rights under section 106 of this title, or to have any effect on defenses or limitations on rights granted under any other section of 

this title or under any other paragraph of this section. 

* * * * * * * 

CHAPTER 4—COPYRIGHT NOTICE, DEPOSIT, AND 

REGISTRATION 

* * * * * * * 

§ 408. Copyright registration in general 

(a) * * * 

* * * * * * * 

(f) PREREGISTRATION OF WORKS BEING PREPARED FOR COM- MERCIAL DISTRIBUTION.— (1) RULEMAKING.—Not later than 180 days after the date of 

enactment of this subsection, the Register of Copyrights shall 

issue regulations to establish procedures for preregistration of a 

work that is being prepared for commercial distribution and 

has not been published. 

(2) CLASS OF WORKS.—The regulations established under 

paragraph (1) shall permit preregistration for any work that is 

in a class of works that the Register determines has had a history of infringement prior to authorized commercial distribution. 

(3) APPLICATION FOR REGISTRATION.—Not later than 3 

months after the first publication of a work preregistered under 

this subsection, the applicant shall submit to the Copyright Office— 

(A) an application for registration of the work; 

(B) a deposit; and 

(C) the applicable fee. 

(4) EFFECT OF UNTIMELY APPLICATION.—An action under 

this chapter for infringement of a work preregistered under this 

subsection, in a case in which the infringement commenced no 

later than 2 months after the first publication of the work, shall 

be dismissed if the items described in paragraph (3) are not 

submitted to the Copyright Office in proper form within the earlier of— 

(A) 3 months after the first publication of the work; or 

30 

(B) 1 month after the copyright owner has learned of 

the infringement. 

* * * * * * * 

§ 411. Registration and infringement actions 

(a) Except for an action brought for a violation of the rights of 

the author under section 106A(a), and subject to the provisions of 

subsection (b), no action for infringement of the copyright in any 

United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with 

this title. In any case, however, where the deposit, application, and 

fee required for registration have been delivered to the Copyright 

Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice 

thereof, with a copy of the complaint, is served on the Register of 

Copyrights. The Register may, at his or her option, become a party 

to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such 

service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue. 

* * * * * * * 

§ 412. Registration as prerequisite to certain remedies for 

infringement 

In any action under this title, other than an action brought for 

a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been 

preregistered under section 408(f) before the commencement of the 

infringement and that has an effective date of registration not later 

than the earlier of 3 months after the first publication of the work 

or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b), no award of statutory damages or of attorney’s fees, as provided by sections 504 

and 505, shall be made for— 

(1) * * * 

* * * * * * * 

CHAPTER 5—COPYRIGHT INFRINGEMENT AND 

REMEDIES 

* * * * * * * 

§ 506. Criminal offenses 

ø(a) CRIMINAL INFRINGEMENT.—Any person who infringes a 

copyright willfully either— 

ø(1) for purposes of commercial advantage or private financial gain, or 

ø(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies 

or phonorecords of 1 or more copyrighted works, which have a 

total retail value of more than $1,000, 

shall be punished as provided under section 2319 of title 18, United 

States Code. For purposes of this subsection, evidence of reproducVerDate Aug 04 2004 03:49 Apr 13, 2005 Jkt 039006 PO 00000 Frm 00030 Fmt 6659 Sfmt 6601 E:\HR\OC\HR033P1.XXX HR033P1
31 

tion or distribution of a copyrighted work, by itself, shall not be 

sufficient to establish willful infringement.¿ 

(a) CRIMINAL INFRINGEMENT.— (1) IN GENERAL.—Any person who willfully infringes a 

copyright shall be punished as provided under section 2319 of 

title 18, if the infringement was committed— 

(A) for purposes of commercial advantage or private financial gain; 

(B) by the reproduction or distribution, including by 

electronic means, during any 180–day period, of 1 or more 

copies or phonorecords of 1 or more copyrighted works, 

which have a total retail value of more than $1,000; or 

(C) by the distribution of a work being prepared for 

commercial distribution, by making it available on a computer network accessible to members of the public, if such 

person knew or should have known that the work was intended for commercial distribution. 

(2) EVIDENCE.—For purposes of this subsection, evidence of 

reproduction or distribution of a copyrighted work, by itself, 

shall not be sufficient to establish willful infringement of a 

copyright. 

(3) DEFINITION.—In this subsection, the term ‘‘work being 

prepared for commercial distribution’’ means— 

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at 

the time of unauthorized distribution— 

(i) the copyright owner has a reasonable expectation of commercial distribution; and 

(ii) the copies or phonorecords of the work have not 

been commercially distributed; or 

(B) a motion picture, if, at the time of unauthorized 

distribution, the motion picture— 

(i) has been made available for viewing in a motion picture exhibition facility; and 

(ii) has not been made available in copies for sale 

to the general public in the United States in a format 

intended to permit viewing outside a motion picture exhibition facility. 

* * * * * * * 

SECTION 32 OF THE TRADEMARK ACT OF 1946 

SEC. 32. (1) * * * 

* * * * * * * 

(3)(A) Any person who engages in the conduct described in 

paragraph (11) of section 110 of title 17, United States Code, and 

who complies with the requirements set forth in that paragraph is 

not liable on account of such conduct for a violation of any right 

under this Act. This subparagraph does not preclude liability, nor 

shall it be construed to restrict the defenses or limitations on rights 

granted under this Act, of a person for conduct not described in 

paragraph (11) of section 110 of title 17, United States Code, even 

32 

if that person also engages in conduct described in paragraph (11) 

of section 110 of such title. 

(B) A manufacturer, licensee, or licensor of technology that enables the making of limited portions of audio or video content of a 

motion picture imperceptible as described in subparagraph (A) is 

not liable on account of such manufacture or license for a violation 

of any right under this Act, if such manufacturer, licensee, or licensor ensures that the technology provides a clear and conspicuous notice at the beginning of each performance that the performance of 

the motion picture is altered from the performance intended by the 

director or copyright holder of the motion picture. The limitations 

on liability in subparagraph (A) and this subparagraph shall not 

apply to a manufacturer, licensee, or licensor of technology that fails 

to comply with this paragraph. 

(C) The requirement under subparagraph (B) to provide notice 

shall apply only with respect to technology manufactured after the 

end of the 180-day period beginning on the date of the enactment 

of the Family Movie Act of 2005. 

(D) Any failure by a manufacturer, licensee, or licensor of technology to qualify for the exemption under subparagraphs (A) and 

(B) shall not be construed to create an inference that any such party 

that engages in conduct described in paragraph (11) of section 110 

of title 17, United States Code, is liable for trademark infringement 

by reason of such conduct. 

NATIONAL FILM PRESERVATION ACT OF 1996 

* * * * * * * 

SEC. 103. DUTIES OF THE LIBRARIAN OF CONGRESS. 

(a) * * * 

(b) USE OF SEAL.—The seal provided under subsection (a)(3) 

may only be used on øfilm copies¿ film or other approved copies of 

the Registry version of a film. Such seal may be used only after the 

Librarian has given approval to those persons seeking to apply the 

seal in accordance with the guidelines under subsection (a)(3). In 

the case of øcopyrighted¿ copyrighted, mass distributed, broadcast, 

or published works, only the copyright owner or an authorized licensee of the copyright owner may place or authorize the placement of the seal on any øfilm copy¿ film or other approved copy of 

a Registry version of a film selected for inclusion in the National 

Film Registry, and the Librarian may place the seal on any øfilm 

copy¿ film or other approved copy of the Registry version of any 

film that is maintained in the National Film Registry Collection in 

the Library of Congress. Anyone authorized to place the seal on 

any øfilm copy¿ film or other approved copy of any Registry version 

of a film may accompany such seal with the following language: 

‘‘This film was selected for inclusion in the National Film Registry 

by the National Film Preservation Board of the Library of Congress 

because of its cultural, historical, or aesthetic significance.’’. 

(c) COORDINATION OF PROGRAM WITH OTHER COLLECTION, 

PRESERVATION, AND ACCESSIBILITY ACTIVITIES.—In carrying out the 

comprehensive national film preservation program for motion pictures established under the National Film Preservation Act of 1992, 

33 

the Librarian, in consultation with the Board established pursuant 

to section 104, shall— 

(1) carry out activities to make films included in the National Film registry more broadly accessible for research and 

educational purposes, and to generate public awareness and 

support of the Registry and the comprehensive national film 

preservation program; 

(2) review the comprehensive national film preservation 

plan, and amend it to the extent necessary to ensure that it addresses technological advances in the preservation and storage 

of, and access to film collections in multiple formats; and 

(3) wherever possible, undertake expanded initiatives to ensure the preservation of the moving image heritage of the 

United States, including film, videotape, television, and born 

digital moving image formats, by supporting the work of the 

National Audio-Visual Conservation Center of the Library of 

Congress, and other appropriate nonprofit archival and preservation organizations. 

SEC. 104. NATIONAL FILM PRESERVATION BOARD. 

(a) NUMBER AND APPOINTMENT.— 

(1) MEMBERS.—The Librarian shall establish in the Library of Congress a National Film Preservation Board to be 

comprised of ø20¿ 22 members, who shall be selected by the 

Librarian in accordance with this section. Subject to subparagraphs (C) and (N), the Librarian shall request each organization listed in subparagraphs (A) through (Q) to submit a list 

of three candidates qualified to serve as a member of the 

Board. Except for the members-at-large appointed under subparagraph (2), the Librarian shall appoint one member from 

each such list submitted by such organizations, and shall designate from that list an alternate who may attend at Board expense those meetings to which the individual appointed to the 

Board cannot attend. The organizations are the following: 

(A) * * * 

* * * * * * * 

(2) MEMBERS-AT-LARGE.—In addition to the members appointed under paragraph (1), the Librarian shall appoint up to 

øthree¿ 5 members-at-large. The Librarian shall also select an 

alternate for each member at-large, who may attend at Board 

expense those meetings which the member at-large cannot attend. 

* * * * * * * 

(d) QUORUM.—ø11¿ 12 members of the Board shall constitute 

a quorum but a lesser number may hold hearings. 

ø(e) REIMBURSEMENT OF EXPENSES.—Members of the Board 

shall serve without pay, but may be reimbursed for the actual and 

necessary traveling and subsistence expenses incurred by them in 

the performance of the duties of the Board.¿ 

(e) REIMBURSEMENT OF EXPENSES.—Members of the Board 

shall serve without pay, but may receive travel expenses, including 

per diem in lieu of subsistence, in accordance with sections 5702 

and 5703 of title 5, United States Code. 

* * * * * * * 

34 

SEC. 106. NATIONAL FILM REGISTRY COLLECTION OF THE LIBRARY 

OF CONGRESS. 

(a) * * * 

* * * * * * * 

(e) NATIONAL AUDIO-VISUAL CONSERVATION CENTER.—The Librarian shall utilize the National Audio-Visual Conservation Center 

of the Library of Congress at Culpeper, Virginia, to ensure that preserved films included in the National Film Registry are stored in 

a proper manner, and disseminated to researchers, scholars, and 

the public as may be appropriate in accordance with— 

(1) title 17, United States Code; and 

(2) the terms of any agreements between the Librarian and 

persons who hold copyrights to such audiovisual works. 

SEC. 107. SEAL OF THE NATIONAL FILM REGISTRY. 

(a) USE OF THE SEAL.— 

(1) PROHIBITION ON DISTRIBUTION AND EXHIBITION.—No 

person shall knowingly distribute or exhibit to the public a 

version of a film or any copy in any format of a film which 

bears the seal described in section 103(a)(3) if such film— 

(A) * * * 

* * * * * * * 

(2) PROHIBITION ON PROMOTION.—No person shall knowingly use the seal described in section 103(a)(3) to promote any 

version of a film øor film copy¿ in any format other than a 

Registry version. 

* * * * * * * 

SEC. 113. EFFECTIVE DATE. 

The provisions of this title shall be effective for ø7¿ 13 years 

beginning on the date of the enactment of this Act. The provisions 

of this title shall apply to any copy of any film, including those copies of films selected for inclusion in the National Film Registry 

under the National Film Preservation Act of 1988 and the National 

Film Preservation Act of 1992, except that any film so selected 

under either Act shall be deemed to have been selected for the National Film Registry under this title. 

* * * * * * * 

TITLE 36, UNITED STATES CODE 

* * * * * * * 

SUBTITLE II—PATRIOTIC AND NATIONAL 

ORGANIZATIONS 

* * * * * * * 

PART B—ORGANIZATIONS 

* * * * * * * 

35 

CHAPTER 1517—NATIONAL FILM PRESERVATION 

FOUNDATION 

* * * * * * * 

§ 151703. Board of directors 

(a) * * * 

(b) MEMBERS AND APPOINTMENT.—(1) * * * 

(2)(A) The board consists of ønine¿ 12 directors. 

* * * * * * * 

(4) The terms of office of the directors are 4 years. øAn individual may not serve more than two consecutive terms.¿ There 

shall be no limit to the number of terms to which any individual 

may be appointed. 

* * * * * * * 

§ 151705. Powers 

(a) * * * 

(b) POWERS AS TRUSTEE.—To carry out its purposes, the corporation has the usual powers of a corporation acting as a trustee 

in the øDistrict of Columbia¿ the jurisdiction in which the principal 

office of the corporation is located, including the power— 

(1) * * * 

* * * * * * * 

§ 151706. Principal office 

The principal office of the corporation shall be in the District 

of Columbia, or another place as determined by the board of directors. However, the corporation may conduct business throughout 

the States, territories, and possessions of the United States. 

* * * * * * * 

§ 151711. Authorization of appropriations 

ø(a) AUTHORIZATION.—There are authorized to be appropriated 

to the Library of Congress amounts necessary to carry out this 

chapter, not to exceed $250,000 for each of the fiscal years ending 

September 30, 2000–2005. These amounts are to be made available 

to the corporation to match private contributions (whether in currency, services, or property) made to the corporation by private persons and State and local governments. 

ø(b) LIMITATION RELATED TO ADMINISTRATIVE EXPENSES.— 

Amounts authorized under this section may not be used by the corporation for administrative expenses of the corporation, including 

salaries, travel, transportation, and overhead expenses.¿ 

(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized 

to be appropriated to the Library of Congress amounts necessary to 

carry out this chapter, not to exceed $530,000 for each of the fiscal 

years 2005 through 2009. These amounts are to be made available 

to the corporation to match any private contributions (whether in 

currency, services, or property) made to the corporation by private 

persons and State and local governments. 

(b) LIMITATION RELATED TO ADMINISTRATIVE EXPENSES.— 

Amounts authorized under this section may not be used by the corVerDate Aug 04 2004 03:49 Apr 13, 2005 Jkt 039006 PO 00000 Frm 00035 Fmt 6659 Sfmt 6603 E:\HR\OC\HR033P1.XXX HR033P1
36 

poration for management and general or fundraising expenses as reported to the Internal Revenue Service as part of an annual information return required under the Internal Revenue Code of 1986. 

* * * * * * * 

37 

COMMITTEE JURISDICTION LETTERS


G167A.eps
38 


G167B.eps
39 

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, MARCH 9, 2005 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:00 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present comprised entirely of Members of the 

majority party. So rather than doing a ratification of minority Committee assignments, since there is no one here to make a motion 

to do that, we will now go to the next item on the agenda which 

is the adoption of S. 167, the ‘‘Family Entertainment and Copyright 

Act of 2005,’’ and the Chair recognizes the gentlemen from Texas, 

Mr. Smith, the Chairman of the Subcommittee on Courts, the 

Internet, and Intellectual Property for a motion. 

Mr. SMITH. Mr. Chairman, I ask unanimous consent that we consider the following bills en bloc: S. 167, H.R. 683, H.R. 1036, H.R. 

1037, H.R. 1038. 

Chairman SENSENBRENNER. How about House Concurrent Resolution—— 

Mr. SMITH. It’s my understanding, Chairman, that needs to be 

considered separately. 

Chairman SENSENBRENNER. Okay. Without objection, the 5 bills 

mentioned by the gentleman from Texas will be considered en bloc, 

and the Chair recognizes the gentleman from Texas to explain 

them. 

Mr. SMITH. I’ll try to be brief, Mr. Chairman. The first bill, S. 

167 really consists of three previous bills that this Committee has 

approved and that passed the House last year. The first one is the 

Family Movie Act, and I think Members will recall that that simply 

gives parents the right to determine what their children see when 

they rent or buy a movie video. 

The second part of this particular bill is the Art Act which creates new penalties for those who camcord movies in public theaters 

and who willfully infringe copyright law by distributing copies of 

prereleased works, movies or otherwise. 

The Trademark Dilution Revision Act of 2005 simply, basically 

protects trademarks in a better way and also makes sure that people cannot infringe trademarks as easily as they do now. It also 

does a good job of trying to keep us out of court to determine some 

of the ambiguities of that particular subject. 

The two technical correction bills are just that, technical corrections of the Satellite Viewer, Home Viewer Movie Act, and the 

technical corrections, in addition to the satellite corrections are 

technical corrections of the CARP bill, which we approved last year 

and which passed the House. 

The last bill in the en bloc package, Mr. Chairman, is your bill, 

the Multidistrict Litigation Restoration Act of 2005, and I will yield 

to you to make any comments on that. 

40 

And that would be the quick summary of the five bills en bloc. 

[The bill, S. 167, follows:] 

41 

109TH CONGRESS

1ST SESSION S. 167

AN ACT

To provide for the protection of intellectual property rights,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Family Entertainment

5 and Copyright Act of 2005’’.


167ES.AAB
42 

2

S 167 ES

1 TITLE I—ARTISTS’ RIGHTS AND

2 THEFT PREVENTION

3 SEC. 101. SHORT TITLE.

4 This title may be cited as the ‘‘Artists’ Rights and

5 Theft Prevention Act of 2005’’ or the ‘‘ART Act’’.

6 SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RE7 CORDING OF MOTION PICTURES IN A MO8 TION PICTURE EXHIBITION FACILITY.

9 (a) IN GENERAL.—Chapter 113 of title 18, United

10 States Code, is amended by adding after section 2319A

11 the following new section:

12 ‘‘§ 2319B. Unauthorized recording of Motion pictures

13 in a Motion picture exhibition facility

14 ‘‘(a) OFFENSE.—Any person who, without the au15 thorization of the copyright owner, knowingly uses or at16 tempts to use an audiovisual recording device to transmit

17 or make a copy of a motion picture or other audiovisual

18 work protected under title 17, or any part thereof, from

19 a performance of such work in a motion picture exhibition

20 facility, shall—

21 ‘‘(1) be imprisoned for not more than 3 years,

22 fined under this title, or both; or

23 ‘‘(2) if the offense is a second or subsequent of24 fense, be imprisoned for no more than 6 years, fined

25 under this title, or both.


167ES.AAC
43 

3

S 167 ES

1 The possession by a person of an audiovisual recording

2 device in a motion picture exhibition facility may be con3 sidered as evidence in any proceeding to determine wheth4 er that person committed an offense under this subsection,

5 but shall not, by itself, be sufficient to support a conviction

6 of that person for such offense.

7 ‘‘(b) FORFEITURE AND DESTRUCTION.—When a per8 son is convicted of a violation of subsection (a), the court

9 in its judgment of conviction shall, in addition to any pen10 alty provided, order the forfeiture and destruction or other

11 disposition of all unauthorized copies of motion pictures

12 or other audiovisual works protected under title 17, or

13 parts thereof, and any audiovisual recording devices or

14 other equipment used in connection with the offense.

15 ‘‘(c) AUTHORIZED ACTIVITIES.—This section does

16 not prevent any lawfully authorized investigative, protec17 tive, or intelligence activity by an officer, agent, or em18 ployee of the United States, a State, or a political subdivi19 sion of a State, or by a person acting under a contract

20 with the United States, a State, or a political subdivision

21 of a State.

22 ‘‘(d) IMMUNITY FOR THEATERS.—With reasonable

23 cause, the owner or lessee of a motion picture exhibition

24 facility where a motion picture or other audiovisual work

25 is being exhibited, the authorized agent or employee of


167ES.AAD
44 

4

S 167 ES

1 such owner or lessee, the licensor of the motion picture

2 or other audiovisual work being exhibited, or the agent

3 or employee of such licensor—

4 ‘‘(1) may detain, in a reasonable manner and

5 for a reasonable time, any person suspected of a vio6 lation of this section with respect to that motion pic7 ture or audiovisual work for the purpose of ques8 tioning or summoning a law enforcement officer; and

9 ‘‘(2) shall not be held liable in any civil or

10 criminal action arising out of a detention under

11 paragraph (1).

12 ‘‘(e) VICTIM IMPACT STATEMENT.—

13 ‘‘(1) IN GENERAL.—During the preparation of

14 the presentence report under rule 32(c) of the Fed15 eral Rules of Criminal Procedure, victims of an of16 fense under this section shall be permitted to submit

17 to the probation officer a victim impact statement

18 that identifies the victim of the offense and the ex19 tent and scope of the injury and loss suffered by the

20 victim, including the estimated economic impact of

21 the offense on that victim.

22 ‘‘(2) CONTENTS.—A victim impact statement

23 submitted under this subsection shall include—


167ES.AAE
45 

5

S 167 ES

1 ‘‘(A) producers and sellers of legitimate

2 works affected by conduct involved in the of3 fense;

4 ‘‘(B) holders of intellectual property rights

5 in the works described in subparagraph (A);

6 and

7 ‘‘(C) the legal representatives of such pro8 ducers, sellers, and holders.

9 ‘‘(f) STATE LAW NOT PREEMPTED.—Nothing in this

10 section may be construed to annul or limit any rights or

11 remedies under the laws of any State.

12 ‘‘(g) DEFINITIONS.—In this section, the following

13 definitions shall apply:

14 ‘‘(1) TITLE 17 DEFINITIONS.—The terms

15 ‘audiovisual work’, ‘copy’, ‘copyright owner’, ‘motion

16 picture’, ‘motion picture exhibition facility’, and

17 ‘transmit’ have, respectively, the meanings given

18 those terms in section 101 of title 17.

19 ‘‘(2) AUDIOVISUAL RECORDING DEVICE.—The

20 term ‘audiovisual recording device’ means a digital

21 or analog photographic or video camera, or any

22 other technology or device capable of enabling the

23 recording or transmission of a copyrighted motion

24 picture or other audiovisual work, or any part thereVerDate Aug 04 2004 03:49 Apr 13, 2005 Jkt 039006 PO 00000 Frm 00045 Fmt 6659 Sfmt 6601 E:\HR\OC\HR033P1.XXX HR033P1

167ES.AAF
46 

6

S 167 ES

1 of, regardless of whether audiovisual recording is the

2 sole or primary purpose of the device.’’.

3 (b) CLERICAL AMENDMENT.—The table of sections

4 at the beginning of chapter 113 of title 18, United States

5 Code, is amended by inserting after the item relating to

6 section 2319A the following:

‘‘2319B. Unauthorized recording of motion pictures in a motion picture exhibition facility.’’.

7 (c) DEFINITION.—Section 101 of title 17, United

8 States Code, is amended by inserting after the definition

9 of ‘‘Motion pictures’’ the following: ‘‘The term ‘‘motion

10 picture exhibition facility’’ means a movie theater, screen11 ing room, or other venue that is being used primarily for

12 the exhibition of a copyrighted motion picture, if such ex13 hibition is open to the public or is made to an assembled

14 group of viewers outside of a normal circle of a family

15 and its social acquaintances.’’.

16 SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING

17 PREPARED FOR COMMERCIAL DISTRIBU18 TION.

19 (a) PROHIBITED ACTS.—Section 506(a) of title 17,

20 United States Code, is amended to read as follows:

21 ‘‘(a) CRIMINAL INFRINGEMENT.—

22 ‘‘(1) IN GENERAL.—Any person who willfully

23 infringes a copyright shall be punished as provided


167ES.AAG
47 

7

S 167 ES

1 under section 2319 of title 18, if the infringement

2 was committed—

3 ‘‘(A) for purposes of commercial advantage

4 or private financial gain;

5 ‘‘(B) by the reproduction or distribution,

6 including by electronic means, during any 180–

7 day period, of 1 or more copies or phonorecords

8 of 1 or more copyrighted works, which have a

9 total retail value of more than $1,000; or

10 ‘‘(C) by the distribution of a work being

11 prepared for commercial distribution, by mak12 ing it available on a computer network acces13 sible to members of the public, if such person

14 knew or should have known that the work was

15 intended for commercial distribution.

16 ‘‘(2) EVIDENCE.—For purposes of this sub17 section, evidence of reproduction or distribution of a

18 copyrighted work, by itself, shall not be sufficient to

19 establish willful infringement of a copyright.

20 ‘‘(3) DEFINITION.—In this subsection, the term

21 ‘work being prepared for commercial distribution’

22 means—

23 ‘‘(A) a computer program, a musical work,

24 a motion picture or other audiovisual work, or


167ES.AAH
48 

8

S 167 ES

1 a sound recording, if, at the time of unauthor2 ized distribution—

3 ‘‘(i) the copyright owner has a reason4 able expectation of commercial distribu5 tion; and

6 ‘‘(ii) the copies or phonorecords of the

7 work have not been commercially distrib8 uted; or

9 ‘‘(B) a motion picture, if, at the time of

10 unauthorized distribution, the motion picture—

11 ‘‘(i) has been made available for view12 ing in a motion picture exhibition facility;

13 and

14 ‘‘(ii) has not been made available in

15 copies for sale to the general public in the

16 United States in a format intended to per17 mit viewing outside a motion picture exhi18 bition facility.’’.

19 (b) CRIMINAL PENALTIES.—Section 2319 of title 18,

20 United States Code, is amended—

21 (1) in subsection (a)—

22 (A) by striking ‘‘Whoever’’ and inserting

23 ‘‘Any person who’’; and

24 (B) by striking ‘‘and (c) of this section’’

25 and inserting ‘‘, (c), and (d)’’;


167ES.AAI
49 

9

S 167 ES

1 (2) in subsection (b), by striking ‘‘section

2 506(a)(1)’’ and inserting ‘‘section 506(a)(1)(A)’’;

3 (3) in subsection (c), by striking ‘‘section

4 506(a)(2) of title 17, United States Code’’ and in5 serting ‘‘section 506(a)(1)(B) of title 17’’;

6 (4) by redesignating subsections (d) and (e) as

7 subsections (e) and (f), respectively;

8 (5) by adding after subsection (c) the following:

9 ‘‘(d) Any person who commits an offense under sec10 tion 506(a)(1)(C) of title 17—

11 ‘‘(1) shall be imprisoned not more than 3 years,

12 fined under this title, or both;

13 ‘‘(2) shall be imprisoned not more than 5 years,

14 fined under this title, or both, if the offense was

15 committed for purposes of commercial advantage or

16 private financial gain;

17 ‘‘(3) shall be imprisoned not more than 6 years,

18 fined under this title, or both, if the offense is a sec19 ond or subsequent offense; and

20 ‘‘(4) shall be imprisoned not more than 10

21 years, fined under this title, or both, if the offense

22 is a second or subsequent offense under paragraph

23 (2).’’; and

24 (6) in subsection (f), as redesignated—


167ES.AAJ
50 

10

S 167 ES

1 (A) in paragraph (1), by striking ‘‘and’’ at

2 the end;

3 (B) in paragraph (2), by striking the pe4 riod at the end and inserting a semicolon; and

5 (C) by adding at the end the following:

6 ‘‘(3) the term ‘financial gain’ has the meaning

7 given the term in section 101 of title 17; and

8 ‘‘(4) the term ‘work being prepared for com9 mercial distribution’ has the meaning given the term

10 in section 506(a) of title 17.’’.

11 SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK

12 BEING PREPARED FOR COMMERCIAL DIS13 TRIBUTION.

14 (a) PREREGISTRATION.—Section 408 of title 17,

15 United States Code, is amended by adding at the end the

16 following:

17 ‘‘(f) PREREGISTRATION OF WORKS BEING PRE18 PARED FOR COMMERCIAL DISTRIBUTION.—

19 ‘‘(1) RULEMAKING.—Not later than 180 days

20 after the date of enactment of this subsection, the

21 Register of Copyrights shall issue regulations to es22 tablish procedures for preregistration of a work that

23 is being prepared for commercial distribution and

24 has not been published.


167ES.AAK
51 

11

S 167 ES

1 ‘‘(2) CLASS OF WORKS.—The regulations estab2 lished under paragraph (1) shall permit

3 preregistration for any work that is in a class of

4 works that the Register determines has had a his5 tory of infringement prior to authorized commercial

6 distribution.

7 ‘‘(3) APPLICATION FOR REGISTRATION.—Not

8 later than 3 months after the first publication of a

9 work preregistered under this subsection, the appli10 cant shall submit to the Copyright Office—

11 ‘‘(A) an application for registration of the

12 work;

13 ‘‘(B) a deposit; and

14 ‘‘(C) the applicable fee.

15 ‘‘(4) EFFECT OF UNTIMELY APPLICATION.—An

16 action under this chapter for infringement of a work

17 preregistered under this subsection, in a case in

18 which the infringement commenced no later than 2

19 months after the first publication of the work, shall

20 be dismissed if the items described in paragraph (3)

21 are not submitted to the Copyright Office in proper

22 form within the earlier of—

23 ‘‘(A) 3 months after the first publication of

24 the work; or


167ES.AAL
52 

12

S 167 ES

1 ‘‘(B) 1 month after the copyright owner

2 has learned of the infringement.’’.

3 (b) INFRINGEMENT ACTIONS.—Section 411(a) of

4 title 17, United States Code, is amended by inserting

5 ‘‘preregistration or’’ after ‘‘shall be instituted until’’.

6 (c) EXCLUSION.—Section 412 of title 17, United

7 States Code, is amended by inserting after ‘‘section

8 106A(a)’’ the following: ‘‘, an action for infringement of

9 the copyright of a work that has been preregistered under

10 section 408(f) before the commencement of the infringe11 ment and that has an effective date of registration not

12 later than the earlier of 3 months after the first publica13 tion of the work or 1 month after the copyright owner

14 has learned of the infringement,’’.

15 SEC. 105. FEDERAL SENTENCING GUIDELINES.

16 (a) REVIEW AND AMENDMENT.—Not later than 180

17 days after the date of enactment of this Act, the United

18 States Sentencing Commission, pursuant to its authority

19 under section 994 of title 28, United States Code, and

20 in accordance with this section, shall review and, if appro21 priate, amend the Federal sentencing guidelines and policy

22 statements applicable to persons convicted of intellectual

23 property rights crimes, including any offense under—

24 (1) section 506, 1201, or 1202 of title 17,

25 United States Code; or


167ES.AAM
53 

13

S 167 ES

1 (2) section 2318, 2319, 2319A, 2319B, or 2320

2 of title 18, United States Code.

3 (b) AUTHORIZATION.—The United States Sentencing

4 Commission may amend the Federal sentencing guidelines

5 in accordance with the procedures set forth in section

6 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note)

7 as though the authority under that section had not ex8 pired.

9 (c) RESPONSIBILITIES OF UNITED STATES SEN10 TENCING COMMISSION.—In carrying out this section, the

11 United States Sentencing Commission shall—

12 (1) take all appropriate measures to ensure that

13 the Federal sentencing guidelines and policy state14 ments described in subsection (a) are sufficiently

15 stringent to deter, and adequately reflect the nature

16 of, intellectual property rights crimes;

17 (2) determine whether to provide a sentencing

18 enhancement for those convicted of the offenses de19 scribed in subsection (a), if the conduct involves the

20 display, performance, publication, reproduction, or

21 distribution of a copyrighted work before it has been

22 authorized by the copyright owner, whether in the

23 media format used by the infringing party or in any

24 other media format;


167ES.AAN
54 

14

S 167 ES

1 (3) determine whether the scope of ‘‘uploading’’

2 set forth in application note 3 of section 2B5.3 of

3 the Federal sentencing guidelines is adequate to ad4 dress the loss attributable to people who, without au5 thorization, broadly distribute copyrighted works

6 over the Internet; and

7 (4) determine whether the sentencing guidelines

8 and policy statements applicable to the offenses de9 scribed in subsection (a) adequately reflect any harm

10 to victims from copyright infringement if law en11 forcement authorities cannot determine how many

12 times copyrighted material has been reproduced or

13 distributed.

14 TITLE II—EXEMPTION FROM IN15 FRINGEMENT FOR SKIPPING

16 AUDIO AND VIDEO CONTENT

17 IN MOTION PICTURES

18 SEC. 201. SHORT TITLE.

19 This title may be cited as the ‘‘Family Movie Act of

20 2005’’.

21 SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING

22 AUDIO AND VIDEO CONTENT IN MOTION PIC23 TURES.

24 (a) IN GENERAL.—Section 110 of title 17, United

25 States Code, is amended—


167ES.AAO
55 

15

S 167 ES

1 (1) in paragraph (9), by striking ‘‘and’’ after

2 the semicolon at the end;

3 (2) in paragraph (10), by striking the period at

4 the end and inserting ‘‘; and’’;

5 (3) by inserting after paragraph (10) the fol6 lowing:

7 ‘‘(11) the making imperceptible, by or at the di8 rection of a member of a private household, of lim9 ited portions of audio or video content of a motion

10 picture, during a performance in or transmitted to

11 that household for private home viewing, from an

12 authorized copy of the motion picture, or the cre13 ation or provision of a computer program or other

14 technology that enables such making imperceptible

15 and that is designed and marketed to be used, at the

16 direction of a member of a private household, for

17 such making imperceptible, if no fixed copy of the

18 altered version of the motion picture is created by

19 such computer program or other technology.’’; and

20 (4) by adding at the end the following:

21 ‘‘For purposes of paragraph (11), the term ‘making

22 imperceptible’ does not include the addition of audio or

23 video content that is performed or displayed over or in

24 place of existing content in a motion picture.


167ES.AAP
56 

16

S 167 ES

1 ‘‘Nothing in paragraph (11) shall be construed to

2 imply further rights under section 106 of this title, or to

3 have any effect on defenses or limitations on rights grant4 ed under any other section of this title or under any other

5 paragraph of this section.’’.

6 (b) EXEMPTION FROM TRADEMARK INFRINGE7 MENT.—Section 32 of the Trademark Act of 1946 (15

8 U.S.C. 1114) is amended by adding at the end the fol9 lowing:

10 ‘‘(3)(A) Any person who engages in the conduct de11 scribed in paragraph (11) of section 110 of title 17,

12 United States Code, and who complies with the require13 ments set forth in that paragraph is not liable on account

14 of such conduct for a violation of any right under this Act.

15 This subparagraph does not preclude liability, nor shall

16 it be construed to restrict the defenses or limitations on

17 rights granted under this Act, of a person for conduct not

18 described in paragraph (11) of section 110 of title 17,

19 United States Code, even if that person also engages in

20 conduct described in paragraph (11) of section 110 of

21 such title.

22 ‘‘(B) A manufacturer, licensee, or licensor of tech23 nology that enables the making of limited portions of

24 audio or video content of a motion picture imperceptible

25 as described in subparagraph (A) is not liable on account


167ES.AAQ
57 

17

S 167 ES

1 of such manufacture or license for a violation of any right

2 under this Act, if such manufacturer, licensee, or licensor

3 ensures that the technology provides a clear and con4 spicuous notice at the beginning of each performance that

5 the performance of the motion picture is altered from the

6 performance intended by the director or copyright holder

7 of the motion picture. The limitations on liability in sub8 paragraph (A) and this subparagraph shall not apply to

9 a manufacturer, licensee, or licensor of technology that

10 fails to comply with this paragraph.

11 ‘‘(C) The requirement under subparagraph (B) to

12 provide notice shall apply only with respect to technology

13 manufactured after the end of the 180-day period begin14 ning on the date of the enactment of the Family Movie

15 Act of 2005.

16 ‘‘(D) Any failure by a manufacturer, licensee, or li17 censor of technology to qualify for the exemption under

18 subparagraphs (A) and (B) shall not be construed to cre19 ate an inference that any such party that engages in con20 duct described in paragraph (11) of section 110 of title

21 17, United States Code, is liable for trademark infringe22 ment by reason of such conduct.’’.

23 (c) DEFINITION.—In this section, the term ‘‘Trade24 mark Act of 1946’’ means the Act entitled ‘‘An Act to

25 provide for the registration and protection of trademarks


167ES.AAR
58 

18

S 167 ES

1 used in commerce, to carry out the provisions of certain

2 international conventions, and for other purposes’’, ap3 proved July 5, 1946 (15 U.S.C. 1051 et seq.).

4 TITLE III—NATIONAL FILM

5 PRESERVATION

6 Subtitle A—Reauthorization of the

7 National Film Preservation Board

8 SEC. 301. SHORT TITLE.

9 This subtitle may be cited as the ‘‘National Film

10 Preservation Act of 2005’’.

11 SEC. 302. REAUTHORIZATION AND AMENDMENT.

12 (a) DUTIES OF THE LIBRARIAN OF CONGRESS.—Sec13 tion 103 of the National Film Preservation Act of 1996

14 (2 U.S.C. 179m) is amended—

15 (1) in subsection (b)—

16 (A) by striking ‘‘film copy’’ each place that

17 term appears and inserting ‘‘film or other ap18 proved copy’’;

19 (B) by striking ‘‘film copies’’ each place

20 that term appears and inserting ‘‘film or other

21 approved copies’’; and

22 (C) in the third sentence, by striking

23 ‘‘copyrighted’’ and inserting ‘‘copyrighted, mass

24 distributed, broadcast, or published’’; and

25 (2) by adding at the end the following:


167ES.AAS
59 

19

S 167 ES

1 ‘‘(c) COORDINATION OF PROGRAM WITH OTHER

2 COLLECTION, PRESERVATION, AND ACCESSIBILITY AC3 TIVITIES.—In carrying out the comprehensive national

4 film preservation program for motion pictures established

5 under the National Film Preservation Act of 1992, the

6 Librarian, in consultation with the Board established pur7 suant to section 104, shall—

8 ‘‘(1) carry out activities to make films included

9 in the National Film registry more broadly acces10 sible for research and educational purposes, and to

11 generate public awareness and support of the Reg12 istry and the comprehensive national film preserva13 tion program;

14 ‘‘(2) review the comprehensive national film

15 preservation plan, and amend it to the extent nec16 essary to ensure that it addresses technological ad17 vances in the preservation and storage of, and access

18 to film collections in multiple formats; and

19 ‘‘(3) wherever possible, undertake expanded ini20 tiatives to ensure the preservation of the moving

21 image heritage of the United States, including film,

22 videotape, television, and born digital moving image

23 formats, by supporting the work of the National

24 Audio-Visual Conservation Center of the Library of


167ES.AAT
60 

20

S 167 ES

1 Congress, and other appropriate nonprofit archival

2 and preservation organizations.’’.

3 (b) NATIONAL FILM PRESERVATION BOARD.—Sec4 tion 104 of the National Film Preservation Act of 1996

5 (2 U.S.C. 179n) is amended—

6 (1) in subsection (a)(1) by striking ‘‘20’’ and

7 inserting ‘‘22’’;

8 (2) in subsection (a) (2) by striking ‘‘three’’

9 and inserting ‘‘5’’;

10 (3) in subsection (d) by striking ‘‘11’’ and in11 serting ‘‘12’’; and

12 (4) by striking subsection (e) and inserting the

13 following:

14 ‘‘(e) REIMBURSEMENT OF EXPENSES.—Members of

15 the Board shall serve without pay, but may receive travel

16 expenses, including per diem in lieu of subsistence, in ac17 cordance with sections 5702 and 5703 of title 5, United

18 States Code.’’.

19 (c) NATIONAL FILM REGISTRY.—Section 106 of the

20 National Film Preservation Act of 1996 (2 U.S.C. 179p)

21 is amended by adding at the end the following:

22 ‘‘(e) NATIONAL AUDIO-VISUAL CONSERVATION CEN23 TER.—The Librarian shall utilize the National Audio-Vis24 ual Conservation Center of the Library of Congress at

25 Culpeper, Virginia, to ensure that preserved films included


167ES.AAU
61 

21

S 167 ES

1 in the National Film Registry are stored in a proper man2 ner, and disseminated to researchers, scholars, and the

3 public as may be appropriate in accordance with—

4 ‘‘(1) title 17, United States Code; and

5 ‘‘(2) the terms of any agreements between the

6 Librarian and persons who hold copyrights to such

7 audiovisual works.’’.

8 (d) USE OF SEAL.—Section 107 (a) of the National

9 Film Preservation Act of 1996 (2 U.S.C. 179q(a)) is

10 amended—

11 (1) in paragraph (1), by inserting ‘‘in any for12 mat’’ after ‘‘or any copy’’; and

13 (2) in paragraph (2), by striking ‘‘or film copy’’

14 and inserting ‘‘in any format’’.

15 (e) EFFECTIVE DATE.—Section 113 of the National

16 Film Preservation Act of 1996 (2 U.S.C. 179w) is amend17 ed by striking ‘‘7’’ and inserting ‘‘13’’.

18 Subtitle B—Reauthorization of the

19 National Film Preservation

20 Foundation

21 SEC. 311. SHORT TITLE.

22 This subtitle may be cited as the ‘‘National Film

23 Preservation Foundation Reauthorization Act of 2005’’.


167ES.AAV
62 

22

S 167 ES

1 SEC. 312. REAUTHORIZATION AND AMENDMENT.

2 (a) BOARD OF DIRECTORS.—Section 151703 of title

3 36, United States Code, is amended—

4 (1) in subsection (b)(2)(A), by striking ‘‘nine’’

5 and inserting ‘‘12’’; and

6 (2) in subsection (b)(4), by striking the second

7 sentence and inserting ‘‘There shall be no limit to

8 the number of terms to which any individual may be

9 appointed.’’.

10 (b) POWERS.—Section 151705 of title 36, United

11 States Code, is amended in subsection (b) by striking

12 ‘‘District of Columbia’’ and inserting ‘‘the jurisdiction in

13 which the principal office of the corporation is located’’.

14 (c) PRINCIPAL OFFICE.—Section 151706 of title 36,

15 United States Code, is amended by inserting ‘‘, or another

16 place as determined by the board of directors’’ after ‘‘Dis17 trict of Columbia’’.

18 (d) AUTHORIZATION OF APPROPRIATIONS.—Section

19 151711 of title 36, United States Code, is amended by

20 striking subsections (a) and (b) and inserting the fol21 lowing:

22 ‘‘(a) AUTHORIZATION OF APPROPRIATIONS.—There

23 are authorized to be appropriated to the Library of Con24 gress amounts necessary to carry out this chapter, not to

25 exceed $530,000 for each of the fiscal years 2005 through

26 2009. These amounts are to be made available to the corVerDate Aug 04 2004 03:49 Apr 13, 2005 Jkt 039006 PO 00000 Frm 00062 Fmt 6659 Sfmt 6601 E:\HR\OC\HR033P1.XXX HR033P1

167ES.AAW
63 

23

S 167 ES

1 poration to match any private contributions (whether in

2 currency, services, or property) made to the corporation

3 by private persons and State and local governments.

4 ‘‘(b) LIMITATION RELATED TO ADMINISTRATIVE EX5 PENSES.—Amounts authorized under this section may not

6 be used by the corporation for management and general

7 or fundraising expenses as reported to the Internal Rev8 enue Service as part of an annual information return re9 quired under the Internal Revenue Code of 1986.’’.

10 TITLE IV—PRESERVATION OF

11 ORPHAN WORKS

12 SEC. 401. SHORT TITLE.

13 This title may be cited as the ‘‘Preservation of Or14 phan Works Act’’.

15 SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LI16 BRARIES AND ARCHIVES.

17 Section 108(i) of title 17, United States Code, is

18 amended by striking ‘‘(b) and (c)’’ and inserting ‘‘(b), (c),

19 and (h)’’.

Passed the Senate February 1, 2005.

Attest:

Secretary.


167ES.AAX
64 

Chairman SENSENBRENNER. The Chair passes on this. 

Without objection, all Members may place opening statements in 

the record on each of the bills being considered en bloc at this time. 

Hearing no objection, so ordered. 

[The prepared statement of Mr. Conyers follows:] 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY

I rise in support of this legislation with reservations about one part. At the outset, 

I strongly support efforts to make it more difficult to steal content and to encourage 

preservation of historic content. 

As I have said before, the content industries are a boon to our economy, providing 

this country’s number one export. Their products, which include music, movies, 

books, and software, survive on the protection given by copyright law. Without protection from rampant copying and other infringement, creators would have no reason to keep creating and investing in new content. 

The success of copyrighted content, however, is also its Achilles’ Heel. People now 

camcord movies in theaters to sell online or in DVD format. They obtain pre-release 

copies of content and sell it online. Of course, this is illegal because it is done without the permission of the content owners and without payment to them. This bill 

clarifies that these two acts are illegal even if technology makes it easy and fast 

and cheap. While I believe we should do more to stop piracy, S. 167 is a step in 

the right direction. 

Having said that, I would like to clarify one issue. The civil enforcement side of 

the pre-release provision imposes a statute of limitations on certain copyright lawsuits. Because it imposes the limit only for infringements that occur no more than 

two months after pre-registered content is first distributed, it is clear that the bill 

does not impose any time limit on filing lawsuits for infringements that occur more 

than two months after distribution. 

The bill also contains two provisions that will encourage the preservation of historically-significant content. First, it reauthorizes the National Film Preservation 

Board and National Film Preservation Foundation, which review initiatives to ensure the preservation of valued films and issue grants to libraries and other institutions that can save films from degradation. The Directors Guild of America and the 

Academy of Motion Picture Arts and Sciences have applauded these efforts. The program expired in 2003, so S. 167 extends it until 2009. 

The second preservation piece, the ‘‘Preservation of Orphan Works Act,’’ will empower libraries and archives to make additional copies of musical works, movies, 

and other content. 

My one objection to S. 167, however, is with the ‘‘Family Movie Act,’’ which would 

allow private companies to sell movie editing software without permission from the 

filmmakers. This was proposed in response to a lawsuit between one company and 

filmmakers. From our consideration of this provision last year, we know this section 

will take away the copyrights and artistic rights of filmmakers to the financial benefit of one private company. It is important to note that the bill does not immunize 

those who make fixed copies of edited content; such copies would still be illegal, as 

they are today, and the legislative history should reflect that. 

I urge my colleagues to vote ‘‘Aye’’ on this legislation. 

[The prepared statement of Mr. Berman follows:] 

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

Mr. Chairman, thank you for scheduling a mark-up of S. 167. S. 167 strives to 

protect copyright owners from rampant infringement and is overall a good bill. However, it does little to confront many of the important issues we addressed last year 

with the passage of H.R. 4077. I am disappointed that with this bill we seem to 

have moved backwards, but I have been convinced that at this point, a bird in hand 

is better then two in the bush. 

S. 167 attempts to prevent the first step for those distributing pirated movies— 

obtaining the first copy. Copies of brand new movies—still showing in the theaters— 

are available on street corners throughout the world for two dollars as a result of 

people using a camcorder in theaters. Therefore, as did H.R. 4077, S. 167 criminalizes the recording of a movie in a theater with a camcorder. The bill extends to the 

65 

theater owner the right to detain an individual suspected of copying a movie. Furthermore, it provides for the confiscation of the property used to commit the crime. 

However, preventing the camcording of movies does not solve the piracy problem. 

Pirates will always seek treasure, and where they have truly found gold is in obtaining a pre-released copy of a movie, sound recording or video game. In testimony on 

this issue almost two years ago, industry representatives testified that two weeks 

before the motion picture THE HULK was to be released in theaters, an incomplete 

work print version of the film had been illegally uploaded onto the internet. In fact, 

reviews for THE HULK were available before its release in theaters. The harm to 

the market of a copyrighted work exponentially increases if the work is released before the editing or promotion for the product is completed. Therefore, S. 167 imposes 

civil and criminal penalties for the willful distribution of a work being prepared for 

commercial distribution. 

A very important provision of S. 167 is the reauthorization of the National Film 

Preservation Board and the National Film Preservation Foundation. These organizations play a vital role in maintaining the history of film. Finally, included in S. 

167 is a bill I introduced with Mr. Smith and Ms. Lofgren, in the last Congress. 

The orphan works provision is designed to allow libraries and archives to use certain copyrighted materials during the last 20 years of term of the copyright, under 

specific conditions. In this way, we have addressed concerns by the user community 

and made copyrighted works more accessible. 

What I find problematic about S. 167 is that it fails to address core problems facing copyright owners today, including the effect of Peer-to- Peer Networks, lack of 

resources for prosecution of intellectual property crimes, and the paucity of education on these subjects. Instead of protecting an owner’s copyright by addressing 

the problems caused by Peer-to-Peer Networks, the bill shields a technology which 

is harmful to an intellectual property owner. (Clearplay) 

In addition, the drafters of this bill have chosen not to add an education provision 

from H.R. 4077 which would establish a program in the Department of Justice to 

educate public users of the internet of the risks involved in downloading illegal copies of copyrighted works. Such education would go a long way toward protecting our 

children from pornography, security and privacy threats. What the drafters have 

chosen to include instead is the Family Movie Act, under the guise that an exception 

for this technology provided by Clearplay is adequate to shield minor children from 

violence, sex or profanity. What the bill in fact does is provide an exemption from 

copyright liability for a company like Nissam, the claimed owner of the patent to 

the Clearplay technology, which offers a movie viewer the option of enhancing the 

level of violence, sex or profanity. 

Ironically, in H.R. 4077, we had worked out a compromise relating to modernizing 

the Net Act. However, today’s legislation remains silent on necessary fixes to the 

Net Act. These fixes could help copyright owners deal with 21st Century problems. 

While I am disappointed that this legislation does not go far enough to protect 

against piracy, at least it is a starting point. Overall, I am pleased with most of 

the provisions in the bill. However, I look forward to working with the Chairman 

of the Subcommittee in drafting a bill later in this Congress that further protects 

the rights of copyright holders. In the meanwhile, I urge my colleagues to support 

this bill. 

Chairman SENSENBRENNER. Are there any amendments to any of 

the bills? 

[No response.] 

There being no amendments, without objection, the previous 

question is ordered on reporting the bills favorably and the vote on 

reporting these bills favorably will be taken when a reporting 

quorum is present. 

Without objection the order for the previous question is vitiated. 

There is a Subcommittee amendment on H.R. 683, the Dilution 

Bill. Without objection, the Subcommittee amendment is agreed to. 

Hearing none, so ordered. 

And now without objection, the previous question is ordered on 

reporting the bills favorably with H.R. 683 being reported favorably 

as amended. And the vote will be taken at the time that a reporting quorum appears. 

[Intervening business.] 

Chairman SENSENBRENNER. The gentleman from California. 

66 

Mr. BERMAN. Thank you, Mr. Chairman. Could I ask unanimous 

consent that we, I guess, rescind the motion to close debate on S. 

167 so I could simply seek to raise an issue to get into the Committee report on that bill? 

Chairman SENSENBRENNER. Without objection, the motion on the 

previous question to order favorably reported S. 167 is vitiated, and 

the gentleman from California is recognized for 5 minutes to strike 

the last word. 

Mr. BERMAN. Thank you, Mr. Chairman. I appreciate that. I will 

simply incorporate by reference all critical comments about that 

portion of S. 167, known as the Family Movie Act, but I would like 

to bring to the Chairman both of the full Committee and the Subcommittee’s attention, an issue involved in this part of the bill. We 

had a conversation last year about whether the bill might be read 

to provide a defense to manufacturers of ad-skipping devices. You 

at that time argued that it could not, but promised to work with 

me to make that clear. We did that, and it resulted in the explicit 

language for H.R. 4077, from which this provision comes, which 

was in the bill last year that passed the House. 

That specific language did not come over in the Senate bill, and 

I was wondering if you would be willing to commit, as you did last 

year, to make sure the Committee’s report on the bill underscores 

the removal of the language in H.R. 4077 in no way renders the 

bill applicable in litigation over ad skipping. 

Chairman SENSENBRENNER. If the gentleman will yield? 

Mr. BERMAN. I will be happy to. 

Chairman SENSENBRENNER. I am happy to make sure that that 

will be in the Committee’s report and instruct the staff on both 

sides of the aisle to make sure that the observations of the gentleman from California are contained in the Committee report before it is filed. 

Mr. BERMAN. I thank you very much, and I yield back my time. 

Chairman SENSENBRENNER. The gentleman yields back the balance of his time. Are there further amendments to Senate 167? 

[No response.] 

Chairman SENSENBRENNER. If there are no further amendments, 

without objection, the previous question is ordered favorably reporting Senate 167. 

We are still one short of a reporting quorum. I would ask the 

Members present to be patient, and as soon as we round up—here 

we go. They have been rounded up. [Laughter.] 

The previous question has been ordered on reporting favorably 

the following bills: Senate 167, H.R. 683, H.R. 1036, H.R. 1037 and 

H.R. 1038. So many as are in favor of reporting these bills favorably will say aye. 

Opposed, no? 

The ayes appear to have it. The ayes have it, and the bills are 

reported favorably. 

Without objection, those bills which were amended here, meaning 

H.R. 683, will be reported favorably to the House in the form of a 

single amendment in the nature of a substitute, incorporating the 

amendments adopted here today. That unanimous consent request 

also includes Senate 167 as amended. 

Is there any objection? 

Mr. SCOTT. Mr. Chairman, reserving the right to object. 

67 

Chairman SENSENBRENNER. The gentleman from Virginia. 

Mr. SCOTT. Mr. Chairman, I want the record to reflect that on 

S. 167 I do not approve of the Family Movie Act of 2005, and I 

withdraw my reservation. 

Chairman SENSENBRENNER. The Chair would observe that people 

who disagree with the Family Movie Act provisions have got the 

authority to file additional views as a part of the Committee report. 

Without—— 

Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. Does the gentleman—— 

Mr. WATT. Reserving the right to object. 

Chairman SENSENBRENNER. Does the gentleman from Virginia 

withdraw his reservation? 

Mr. SCOTT. I did, Mr. Chairman. 

Chairman SENSENBRENNER. Okay. The gentleman from North 

Carolina. 

Mr. WATT. Simply—and I will not object, Mr. Chairman. I simply 

wanted to note that I was the only dissenting voice in a favorable 

report and wanted the record to show that that was because of my 

opposition to H.R. 1038, and I just wanted that in the record. 

Chairman SENSENBRENNER. With the next unanimous consent 

request, the gentleman will be given the right to file dissenting 

views on that bill. There will be separate Committee reports that 

will be filed on each of the bills considered en bloc. Does the gentleman withdraw his reservation? 

Mr. WATT. Yes. 

Chairman SENSENBRENNER. Okay. Without objection, all Members will be given 2 days as provided by House rules, in which to 

submit additional dissenting, supplemental or minority views, and 

without objection the staff is directed to make any technical and 

conforming changes. 

[Intervening business.] 

Chairman SENSENBRENNER. There being no further business to 

come before the Committee, the Committee stands adjourned. 

[Whereupon, at 10:17 a.m., the Committee was adjourned.] 

(69) 

1The Family Movie Act was introduced as H.R. 4586 in the 108th Congress and was added 

to H.R. 4077 at full Committee markup in the 108th Congress. A hearing on H.R. 4586 was 

held at the Subcommittee level. 2See Derivative Rights, Moral Rights, and Movie Filtering Technology: Hearing Before the 

Subcomm. on Courts, the Internet, and Intellectual Property of the House Comm. on the Judiciary, 108th Cong., 2d Sess. 86 (May 20, 2004) (written statement of Taylor Hackford, Directors 

Guild of America) [hereinafter May 20, 2004 Hearing]. 3Family Movie Act of 2004: Hearing on H.R. 4586 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the House Comm. on the Judiciary, 108th Cong., 2d Sess. 67– 

70 (June 17, 2004) (statement of Jack Valenti, President and Chief Executive Officer, Motion 

Picture Ass’n of America) [hereinafter H.R. 4586 Hearing] 4Declaration of Dean Robert Rosen In Support of the Director Parties’ Opposition to 

ClearPlay, Inc.’s, Trilogy Studios, Inc.’s, and Family Shield Technologies, LLC’s Motion for Summary Judgment, Huntsman v. Soderbergh (D. Colo.) (02–M–1662) [hereinafter Rosen Decl.]. 5 H.R. 4586 Hearing at 6 (statement of Marybeth Peters, Register of Copyrights). 

MINORITY VIEWS

While we support the anti-piracy provisions of S. 167, we oppose 

title II of the bill. Title II consists of the ‘‘Family Movie Act of 

2004.’’ 1 With the purported goal of sanitizing undesired content in 

motion pictures, the Family Movie Act immunizes from copyright 

and trademark liability any for-profit companies that develop 

movie-editing software to make content imperceptible without permission from the movies’ creators. Title II takes sides in a private 

lawsuit, interferes with marketplace negotiations, fails to achieve 

its goal, is unnecessary and overbroad, may increase the level of 

undesired content, and impinges on artistic freedom and rights. 

The bill’s proponents would have us believe that this bill is about 

whether children should be forced to watch undesired content, but 

it is not. The issue in this debate is who should make editorial decisions about what movie content children see: parents or a forprofit company. Supporters of the Family Movie Act believe companies should be allowed to do the editing for profit, and without permission of film creators, while opponents believe parents are the 

best qualified to know what their children should not see. The legislation would accomplish little beyond inflaming the debate over 

indecent content in popular media and interfering with marketplace solutions to parental concerns. 

That is why the Family Movie Act is opposed by: (1) entities concerned with the intellectual property and artistic rights of creators, 

including the Directors Guild of America,2 the Motion Picture Association of America,3 and the Dean of the UCLA Film School; 4 and 

(2) experts on copyright law, such as the Register of Copyrights.5

A. THE FAMILY MOVIE ACT WOULD IMPROPERLY INTERFERE WITH

PENDING LITIGATION AND PREMATURELY TERMINATE MARKETPLACE

NEGOTIATIONS TO SETTLE THE DISPUTE

As a preliminary matter, the legislation is inappropriate because 

it not only addresses the primary issues in a pending lawsuit but 

also takes sides with one of the parties to that suit. The U.S. District Court for the District of Colorado currently has before it a 

70 

6 Huntsman v. Soderbergh, No. 02–M–1662 (D. Colo. filed Aug. 29, 2002). The parties are 

awaiting a ruling on a motion for summary judgment. 7 Complaint and Jury Demand, Huntsman v. Soderbergh (D. Colo.) (No. 02–M–1662). 8 ClearPlay has fourteen filter settings: (1) strong action violence, (2) gory/brutal violence, (3) 

disturbing images (i.e., macabre and bloody images), (4) sensual content, (5) crude sexual content, (6) nudity (including art), (7) explicit sexual situations, (8) vain references to deity, (9) 

crude language and humor, (10) ethnic and racial slurs, (11) cursing, (12) strong profanity, (13) 

graphic vulgarity, and (14) explicit drug use. 9See The Player Control Parties’ Opening Brief in Support of Their Motion for Summary 

Judgment, Huntsman v. Soderbergh (D. Colo.) (No. 02–M–1662). Section 106(2) of title 17, 

United States Code, gives to authors the exclusive right to ‘‘prepare derivative works based on 

the copyrighted work.’’ The Copyright Act further defines a ‘‘derivative work’’ as ‘‘a work based 

upon one or more preexisting works, such as a translation, musical arrangement, dramatization, 

fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work 

consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a 

whole, represent an original work of authorship, is a ‘derivative work.’ ’’ 17 U.S.C. § 101. 

The Register of Copyrights has testified as to her opinion about the copyright issues involved 

in the case. The Register believes that infringement of the exclusive right under 17 U.S.C. 

§ 106(2) to make derivative works requires creation of a fixed copy of a derivative work. H.R. 

4586 Hearing at 7. While the Register’s opinion clearly bears much authority, it is neither binding on a court nor dispositive of the pending lawsuit. Due to the novelty of both the legal and 

technological issues involved, the court may very well reach a different conclusion from that 

drawn by the Register. 

case that began as an action brought by a company called Clean 

Flicks against directors of movies.6 Clean Flicks sought a declaratory judgment against several directors that its business practice of 

providing edited versions of movies to consumers does not violate 

the rights of those who own the copyrights and trademarks for the 

original movies.7

In the course of litigation, the number of parties expanded. Because Clean Flicks claimed that its conduct was lawful under the 

Copyright Act, the directors sought to join the movie studios in the 

dispute. In addition, a Utah-based company known as ClearPlay 

joined on the side of Clean Flicks. ClearPlay employees view motion pictures and create software filters that tag scenes they find 

offensive in each movie; this editing is done without notice to or 

permission from the copyright owners (the movie studios) or movie 

directors.8 When downloaded to a specially-adapted DVD player, 

the ClearPlay software filter instructs the player to ‘‘skip and 

mute’’ the tagged content when the affiliated DVD movie is played. 

Consumers who play a DVD they have rented or purchased would 

thus not see or hear the scenes that ClearPlay has tagged for filtering. 

The bill directly addresses copyright and trademark issues raised 

in the case and inappropriately takes the side of one party. First, 

the content creators allege in the lawsuit that ClearPlay makes derivative works in violation of the Copyright Act; in particular, they 

argue ClearPlay’s editing software violates their exclusive rights as 

movie copyright owners to make modifications or other derivations 

of the original movies.9

Though no court has ruled on this issue, the bill would assist 

ClearPlay by preemptively vitiating this legal claim. It would 

amend the law to state that certain technology that makes portions 

of motion picture content imperceptible during playback does not 

violate copyright law. While not benefitting Clean Flicks and certain other defendants, the bill is specifically designed to legalize 

ClearPlay technology. 

71 

10See The Player Control Parties’ Opening Brief in Support of Their Motion for Summary 

Judgment, Huntsman v. Soderbergh (D. Colo.) (No. 02–M–1662). 11See 15 U.S.C. § 1125(a)(1). 12Despite the extremely complicated nature of these negotiations, they had proceeded quite 

far. In December 2003, the DGA agreed not to object under its collective bargaining agreement 

if the studios offered ClearPlay a license to utilize the edits contained in television and airplane 

versions of movies. The DGA believed this compromise was tolerable because a film’s director 

usually makes the necessary edits for television and airplane versions and is able to control the 

integrity of such edited versions. Over the course of the next several months, the studios conveyed an offer along these lines to ClearPlay. 

More recently, ClearPlay presented the studios with a counteroffer. The studios forwarded this 

counteroffer to the DGA for its response. In a May 29, 2004 response, the DGA relaxed certain 

limitations on a previous agreement to allow ClearPlay to license the television and airplane 

versions of movies. Rather than accept this offer, or present a good-faith counteroffer, ClearPlay 

apparently has enlarged its demands: (1) for movies where, no airplane or television version is 

available, it has sought the ability to edit them; and (2) with regard to films for which television 

or airplane versions have been made available, it is asking that it be able to make its own edits, 

rather than use the pre-existing edited versions. 

Second, film directors claim that ClearPlay violates their trademark rights under section 43(a) of the Lanham Act.10 The directors 

allege that ClearPlay uses their trademarked names in a way that 

is likely to cause confusion as to the affiliation, connection, or association of ClearPlay with the director, or as to the origin, sponsorship, or approval of ClearPlay by the director.11 Their allegation is 

based on the fact that a ClearPlay-sanitized film still indicates the 

name of the director, making it incorrectly appear as if the director 

has approved the sanitized version. 

As with the copyright claims against ClearPlay, the bill would 

usurp judicial consideration of the trademark claims against 

ClearPlay by legalizing the very conduct at issue in the pending 

litigation. The bill would make it legal under trademark law to sell 

a product that alters a work so long as clear and conspicuous notice 

is provided at the beginning of each performance indicating it has 

been altered from the performance intended by the director or 

copyright owner. The effect would again be to specifically benefit 

one party, ClearPlay, to the detriment of all others involved in 

pending litigation. 

In summary, the directors and movie studios have non-frivolous 

legal claims against ClearPlay. Because the case has not proceeded 

past the most preliminary stages at the trial level, there has not 

been any statutory interpretation, let alone a problematic one, that 

would justify a legislative solution. In other words, the law has yet 

to be interpreted in this area, so there is no rational basis for Congress to pass legislation that eliminates certain copyright and 

trademark rights that are at issue between specific parties. 

Passage of this legislation is even more problematic considering 

that the movie creators have negotiated in good faith to settle their 

dispute with ClearPlay. The movie creators had offered ClearPlay 

terms that would allow it to deploy its technology without fear of 

copyright or trademark liability.12 Unfortunately, due to the two 

hearings on this issue and the movement of this legislation, those 

negotiations have stalled; ClearPlay has been emboldened to 

present several new demands that represent a significant step back 

from its previous positions. The growing prospects for a legislative 

fix have caused ClearPlay to abandon good-faith negotiation and 

have made it less likely that consumers will have the choices the 

bill’s proponents allegedly desire. 

72 

13See H.R. 4586 Hearing at 8 (statement of Marybeth Peters, Register of Copyrights) (‘‘I do 

not believe that such legislation should be enacted—and certainly not at this time. As you know, 

litigation addressing whether the manufacture and distribution of such software violates the 

copyright law and the Lanham Act is currently pending in the United States District Court for 

the District of Colorado. A summary judgment motion is pending. The court has not yet ruled 

on the merits. Nor has a preliminary injunction been issued—or even sought.’’). 14 H.R. 4586 Hearing at 9 (written statement of Marybeth Peters) (emphasis added). 15Motion Picture Ass’n of America, Movie Rating System Celebrates 34th Anniversary with 

Overwhelming Parental Support (Oct. 31, 2002) (press release). The industry has five rating categories: G for General Audiences, PG for Parental Guidance Suggested, PG–13 for Parental Caution Suggested for children under 13, R for Restricted (parent or guardian required for children 

under 17), and NC–17 for No Children 17 and under admitted. 16 In 1999, filmmakers released 14 G-rated and 24 PG-rated major motion pictures. In 2000, 

there were 16 G-rated and 27 PG-rated films. In 2001, 8 G-rated and 27 PG-rated movies were 

released. In 2002, 12 G-rated and 50 PG-rated pictures were distributed. Finally, in 2003, 11 

G-rated and 34 PG-rated motion pictures were released. 

In short, fundamental fairness prohibits Congress from passing 

legislation to influence a pending case and private business negotiations. As a matter of equity, it is unfair to change the rules in 

the middle of the game, particularly to help one specific entity; if 

passed, title II would be an unfortunate example of such unfairness. For these reasons, title II should not be considered while litigation is pending.13

B. THE FAMILY MOVIE ACT IS UNNECESSARY

Regardless of the outcome of the pending litigation, this legislation should not be brought before the House because it is unnecessary. Its supposed rationale is to make it easier for parents and 

children to avoid watching motion pictures with undesired content, 

but parents and children already have such options. 

At the outset, there is an obvious marketplace solution to 

undesired content in that consumers can merely elect not to view 

it. As the Register of Copyrights testified at a hearing on the issue 

of whether a legislative fix was necessary: 

I cannot accept the proposition that not to permit parents to 

use such products means that they are somehow forced to expose their children (or themselves) to unwanted depictions of 

violence, sex and profanity. There is an obvious choice—one 

which any parent can and should make: don’t let your children 

watch a movie unless you approve of the content of the entire 

movie.14

The motion picture industry has even enhanced the ability of 

consumers to exercise this choice. For decades and on a voluntary 

basis, it has implemented a rating system for its products that indicates the level of sexual or violent content and the target audience age.15 Each and every major motion picture released in theaters or on DVD or VHS bears such a rating. Such ratings effectively enable parents to steer their children away from movies they 

consider inappropriate. 

Most importantly, the film rating system enable parents to identify movies that they consider appropriate for their children, and 

the industry has acted to make this choice meaningful. The industry annually releases dozens of films geared toward audiences who 

do not wish to see sexual, violent, or profane content.16 As a result, 

it is clear that the movie industry provides parents with abundant 

opportunity to find films they will consider appropriate for their 

children. The movie industry has, therefore, already met the reVerDate Aug 04 2004 03:49 Apr 13, 2005 Jkt 039006 PO 00000 Frm 00072 Fmt 6601 Sfmt 6601 E:\HR\OC\HR033P1.XXX HR033P1
73 

17 H.R. 4586 Hearing at 15 (statement of Amitai Etzioni, Founder and Director, The Institute 

for Communitarian Policy Studies, George Washington University). 18May 20, 2004 Hearing at 20 (statement of Jeff J. McIntyre, Senior Legislative and Federal 

Affairs Officer, American Psychological Ass’n). 19FEDERAL TRADE COMM’N, MARKETING VIOLENT ENTERTAINMENT TO CHILDREN: A FOURTH

FOLLOW-UP REVIEW OF INDUSTRY PRACTICES IN THE MOTION PICTURE, MUSIC RECORDING &

ELECTRONIC GAME INDUSTRIES 10 (July 2004). 20David Pogue, Add ‘‘Cut’’ and ‘‘Bleep’’ to a DVD’s Options, N.Y. Times, May 27, 2004, at G1. 

quest of a Family Movie Act supporter who looked forward to a day 

when ‘‘the industry will get around to issue us age-appropriate 

products.’’ 17

While some of the bill’s supporters say these choices are meaningless on the grounds that the entertainment industry markets 

violent and sexual content to youth,18 that claim is false according 

to the most recent and objective report. The Federal Trade Commission conducted the most recent study on this issue and concluded the following: 

On the whole, the motion picture industry has continued to 

comply with its pledge not to specifically target children under 

17 when advertising films rated R for violence. In addition, the 

studios generally are providing clear and conspicuous ratings 

and rating information in advertisements for their R- and PG13 rated films.19

The industry is, therefore, doing its part to keep undesired content 

away from children. 

The facts demonstrate that parents have the information and 

tools necessary to make and enforce informed choices about the 

media their children experience and have plenty of wholesome 

media alternatives to offer their children. 

C. THE FAMILY MOVIE ACT WOULD LEGALIZE EDITING THAT IS INCOMPREHENSIBLE AND OVERBROAD AND WOULD LEAD TO AN INCREASE

IN UNDESIRED CONTENT

The Family Movie Act would lead to editing that is inconsistent, 

overbroad, and counterproductive. First, ClearPlay does not screen 

out the content it purportedly is designed to filter. The New York 

Times found that ClearPlay’s editing does not conform to its own 

standards: 

For starters, its editors are wildly inconsistent. They duly 

mute every ‘‘Oh my God,’’ ‘‘You bastard,’’ and ‘‘We’re gonna 

have a helluva time’’ (meaning sex). But they leave intact various examples of crude teen slang and a term for the male 

anatomy. 

In ‘‘Pirates of the Caribbean,’’ ‘‘God-forsaken island’’ is bleeped, 

but ‘‘heathen gods’’ slips through.20

In this regard, ClearPlay is seemingly ineffective, and the legislation would be, as well. 

Second, the legislation is overbroad and would go beyond its allegedly intended effects of legalizing tools for sanitizing movies of 

sex, violence, and profanity. In fact, title II would legalize a far 

wider and less desirable universe of filters for profit than its sponsors have disclosed. Filters could be based on social, political, and 

professional prejudices and could edit more than just movies. 

74 

21 ClearPlay actually has made such edits. ‘‘In its alterations of the film, ClearPlay chooses 

to omit the racist language [used by white police officers against a young Rubin Carter] that 

is integral to our understanding of the story. . . . ClearPlay skips these lines in full, choosing 

to fast-forward its version of the movie to a later part of the interrogation scene. However, it 

is via this racist and threatening language that the audience connects with the intimidation that 

the young Carter must feel and the racism he is encountering at the very center of law enforcement.’’ Rosen Decl., supra note 4, at 6–7. 22See Markup of H.R. 4586 Before the House Comm. on the Judiciary, 108th Cong., 2d Sess. 

(July 21, 2004) (amendment offered by Rep. Adam Schiff (D-CA) to limit editing to profane, sexual, and violent content) [hereinafter H.R. 4586 Markup]. The amendment was defeated by voice 

vote. Id. 23 Using CustomPlay, ‘‘[a]n adult can play a version of an adult video that seamlessly excludes 

content inconsistent with the viewer’s adult content preferences, and that is presented at a level 

of explicitness preferred by the adult. Adult content categories are standardized and are orgaFor instance, because the bill is not explicitly limited to the deletion of sex, violence, and profanity, it would legalize socially-undesirable editing, such as: 

• A filter that edits out racial conflict between law enforcement and minorities in The Hurricane, conflict that sets the 

context for how the minorities later react to the police; 21

• A filter that skips over the nude scenes from Schindler’s 

List, scenes that are critical to conveying the debasement 

and dehumanization suffered by concentration camp prisoners; 

• A filter that strips Jungle Fever of scenes showing interracial 

romance and leaves only those scenes depicting interracial 

conflict; and 

• A filter marketed by Holocaust revisionists that removes 

from World War II documentaries any footage of concentration camps. 

The legislation also would immunize products that filter political 

or business content based on the opinions of the creator, including: 

• A filter that skips over political advertisements contrary to 

the positions of the developer’s beliefs; 

• A filter that cleanses news stories, such as by editing out 

comments in support of or in opposition to government policies; and 

• A filter that deletes television stories either helpful to the filter developer’s competitor or critical of the developer’s corporate parent. 

We would hope that none of the bill’s proponents would condone 

such malicious editing. Unfortunately, at last year’s full Committee 

markup of similar legislation, the sponsors rejected an effort to 

limit the proposal to its purported scope of profane, sexual, and violent content.22 If enacted, title II could lead to the editing of artistic works based upon racial, religious, social, political, and business 

biases. 

Finally, the legislation could lead to increased violence and sexual content in entertainment. Just as title II allows nudity to be 

edited out, it allows everything except nudity to be deleted. This 

concern is not merely hypothetical. Nissim Corporation has patented a technology called CustomPlay that, among other things, enables viewers of pornographic movies to filter out the non-pornographic scenes and ‘‘enhance’’ the adult-viewing experience.23

75 

nized into five groups Who, What, Camera, Position, and Fetish.’’ CustomPlay, Content Preferences (visited Aug. 24, 2004) <http://www.customplay.com/mccontent.htm>. 24 Nissim Corp. v. ClearPlay, No. 04–21140 (S.D. Fla. filed May 13, 2004). 25 In response to a cease-and-desist letter from Nissim, a manufacturer of DVD players, Thomson, pulled ClearPlay-enabled players from the retail market. 26 In analyzing the overbreadth of the legislation, we also note that it does not legalize technology that would skip over advertisements in broadcast television. The Copyright Office has 

stated that the bill would not permit commercial ad skipping on the grounds that each ad, in 

and of itself, would be a separate ‘‘motion picture;’’ skipping the entirety of an ad would go beyond the extent of the bill’s authority of making ‘‘limited portions imperceptible.’’ See Letter 

from Marybeth Peters, Register of Copyrights, to the Honorable F. James Sensenbrenner, Jr., 

and the Honorable Lamar Smith (Nov. 15, 2004). 

Moreover, the legislation’s original sponsor, Sen. Orrin Hatch (R-UT), further noted in his 

statement introducing the bill: 

An advertisement, under the Copyright Act, is itself a ‘‘motion picture,’’ and thus a 

product or service that enables the skipping of an entire advertisement, in any media, 

would be beyond the scope of the exemption. Moreover, the phrase ‘‘limited portions’’ 

is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, 

such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. 151 CONG. REC. S495 (daily ed. Jan. 25, 2005) (statement of 

Sen. Hatch). 27SAM RICKETSON, THE BERNE CONVENTION: 1886–1986 456 (1997) (‘‘Any author, whether he 

writes, paints, or composes, embodies some part of himself—his thoughts, ideas, sentiments and 

feelings—in his work, and this gives rise to an interest as deserving of protection as any of the 

other personal interests protected by the institutions of positive law, such as reputation, bodily 

integrity, and confidences. The interest in question here relates to the way in which the author 

presents his work to the world, and the way in which his identification with the work is maintained.’’). 28 NATIONAL ENDOWMENT FOR THE ARTS, STRATEGIC PLAN: FY2003–2008 3 (Feb. 2003). 29 Id. at 8. 30 Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, 1971. 

Because title II only protects technology developers like 

ClearPlay from liability for copyright and trademark infringement, 

Nissim may cause the bill to backfire on its sponsors. Nissim has 

sued ClearPlay for patent infringement, claiming to have a patent 

on ClearPlay-type film-editing technology.24 If Nissim’s claims are 

valid, then only Nissim could distribute such film-editing software.25 Thus, contrary to its stated purpose, the Family Movie Act 

could succeed in legalizing only Nissim’s technology, which enables 

users to increase the proportion of sex or violence in a movie.26

D. THE FAMILY MOVIE ACT WOULD IMPAIR ARTISTIC FREEDOM

AND INTEGRITY

The problems with this legislation are compounded by the fact 

that it violates principles of artistic freedom and expression. The 

concept of protecting artistic freedom is well recognized.27 The National Endowment for the Arts states ‘‘[a]rtistic work and freedom 

of expression are a vital part of any democratic society.’’ 28 For this 

reason, the NEA seeks to preserve works of art,29 and an important part of preservation is to ensure artists are involved in how 

their creations are portrayed. 

This principle, commonly referred to as a ‘‘moral right,’’ is so important that it is required by international agreements and is codified in U.S. law. For instance, the Berne Convention for the Protection of Literary and Artistic Works grants creators the right to object to ‘‘any distortion, mutilation, or other modification of, or other 

derogatory action in relation to, the said work, which would be 

prejudicial to his honor or reputation.’’ 30 The United States, recogVerDate Aug 04 2004 03:49 Apr 13, 2005 Jkt 039006 PO 00000 Frm 00075 Fmt 6601 Sfmt 6601 E:\HR\OC\HR033P1.XXX HR033P1
76 

31 17 U.S.C. § 106A. 32 15 U.S.C. § 1125. 33 133 CONG. REC. H1293 (daily ed. Mar. 16, 1987) (statement of Rep. Robert Kastenmeier). 34 H.R. 4586 Hearing at 10 (written statement of Marybeth Peters). 

nizing the importance of this right, subsequently enacted it into 

both copyright law 31 and trademark law.32

While moral rights protection for U.S. creators is far weaker 

than the protection afforded European creators, a certain level of 

protection for the moral rights of U.S. creators does exist. The ability of creators to bring claims under the Lanham Act, just as directors have done against ClearPlay, does provide creators with an 

important ability to protect their moral rights. In fact, the availability of section 43(a) was one of the specific reasons Congress decided, during adoption of the Berne Convention Implementation 

Act, that U.S. law met the moral rights obligations contained in the 

Berne Convention.33 By limiting the availability of Lanham Act 

suits, title II would limit the moral rights of directors in a way that 

conflicts with U.S. obligations under the Berne Convention. 

Contrary to our laws and international obligations, title II does 

not require that filtering be done with the permission of the content creator or owner, but rather creates an exemption from copyright and trademark liability for filtering. As the Register of Copyrights stated before the Subcommittee: 

I have serious reservations about enacting legislation that permits persons other than the creators or authorized distributors 

of a motion picture to make a profit by selling adaptations of 

somebody else’s motion picture. It’s one thing to say that an individual, in the privacy of his or her home, should be able to 

filter out undesired scenes or [dialogue] from his or her private 

home viewing of a movie. It’s another matter to say that a forprofit company should be able to commercially market a product that alters a director’s artistic vision.34

It is clear, therefore, that the legislation represents a threat to 

an artist’s right to his or her artistic integrity. To permit editing 

of a creation without the permission of the creator is to encourage 

censorship and to vitiate freedom of expression. 

In conclusion, the Family Movie Act is ill-conceived, poorly-drafted legislation. Beyond its patent assault on intellectual property 

rights, the bill inappropriately involves Congress in a private business dispute and would lead to socially undesirable editing and actually permit the distribution of technology that makes pornography even more pornographic. Finally, it encourages unwarranted 

intrusions into artistic freedom. 

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

ROBERT C. SCOTT. 

MELVIN L. WATT. 

MAXINE WATERS. 

LINDA T. SA ́ NCHEZ. 

Æ