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94–286 PDF 2004

FAMILY MOVIE ACT OF 2004

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

H.R. 4586

JUNE 17, 2004

Serial No. 94

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

LAMAR SMITH, Texas, Chairman

HENRY J. HYDE, Illinois 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN R. CARTER, Texas 

HOWARD L. BERMAN, California 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ZOE LOFGREN, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York

BLAINE MERRITT, Chief Counsel 

DAVID WHITNEY, Counsel 

JOE KEELEY, Counsel 

ALEC FRENCH, Minority Counsel 

(III)

C O N T E N T S 

JUNE 17, 2004

OPENING STATEMENT 

Page 

The Honorable Lamar Smith, a Representative in Congress From the State 

of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property .................................................................................................... 1

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 .................................................................... 2

The Honorable Ric Keller, a Representative in Congress From the State 

of Florida ............................................................................................................... 4

The Honorable Zoe Lofgren Keller, a Representative in Congress From the 

State of California ................................................................................................ 5

WITNESSES 

The Honorable Marybeth Peters, Register of Copyrights, Copyright Office 

of the United States, The Library of Congress 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 8

Mr. Amitai Etzioni, Founder and Director, The Institute for Communitarian 

Policy Studies, George Washington University 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 16

Mr. Jack Valenti, President and Chief Executive Officer, Motion Picture Association of America (MPAA) 

Oral Testimony ..................................................................................................... 67

Prepared Statement ............................................................................................. 68

Ms. Penny Young Nance, President, Kids First Coalition 

Oral Testimony ..................................................................................................... 70

Prepared Statement ............................................................................................. 72

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from the Honorable Marybeth Peters, Register of Copyrights, Copyright Office of the United States, The Library of Congress, clarifying answers to questions asked at the hearing and in a letter dated June 25, 

2004, from Rep. Lamar Smith ............................................................................. 89

Response of The Honorable Marybeth Peters, Register of Copyrights, Copyright Office of the United States, The Library of Congress, to post-hearing 

questions from Rep. Howard Berman ................................................................ 91

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 ......................... 92

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress From the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 93

(1)

FAMILY MOVIE ACT OF 2004

THURSDAY, JUNE 17, 2004

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COURTS, THE INTERNET,

AND INTELLECTUAL PROPERTY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to call, at 10:07 a.m., in Room 

2141, Rayburn House Office Building, Hon. Lamar Smith (Chair of 

the Subcommittee) presiding. 

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

I will recognize myself for an opening statement, and the recognize other Members who wish to give opening statements as well. 

Let me say to you all the I don’t know quite how to explain why 

only one room in the Rayburn Building has had their air conditioning system broken, but apparently we do not have air conditioning in this room, and of course, anybody who wants to, can feel 

free to take off their jacket if it makes them more comfortable. Like 

I say, to me, I thought it was a unified air conditioning system, and 

why one room is lacking, I do not know. 

Let me recognize myself for an opening statement. 

Today we will hear testimony on legislation that is of vital importance to families across America. It helps ensure that mothers 

and fathers can provide a wholesome home environment for their 

children. A generation ago there was not nearly the amount of sex, 

violence and profanity on television and in movies that there is 

today. But I still remember how my own parents dealt with it. 

They had a small box with a switch on it, that they manually 

clicked to mute the television’s audio if they felt it was inappropriate, or they would get up and turn the television off for a moment or two. 

These days I don’t think anyone would even consider buying a 

DVD player that doesn’t come with a remote control that can be 

used for the same purpose. Yet, there are some who would deny 

parents the right to protect their children from sex, violence and 

offensive language on television. 

Raising children may be the toughest job in the world. Parents 

need all the help they can get, and they should be able to determine what their children see on the screen. Yes, we parents might 

mute dialogue that others deem crucial, or we might fast forward 

over scenes that others consider essential, but that’s irrelevant. 

Parents should be able to mute of skip over anything they want if 

they feel it’s in the interest of their children. And as a practical 

2

matter, parents cannot monitor their children’s viewing habits all 

the time. They need an assist. 

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

It is time for this Committee to act and let parents decide what 

their children watch. Remote control technology is not some form 

of evil. If you look at a DVD or a VCR before and after technology 

has been used to mute or fast forward over offensive material, 

there would be absolutely no difference in the product. It has been 

spliced, diced, mutilated or altered. The director’s work is still intact. No unauthorized copies have been distributed. No copyright 

has been violated. 

I want to emphasize that the legislation allows the use of technology only for private home viewing. There is no sale of DVD or 

VCR tapes. No commercialization is involved. Surely a parent can 

decide in the privacy of their own home what their child can watch 

on television. 

I am pleased to see that the Register of Copyrights agrees that 

what some companies are doing today is legal under existing law. 

While she may feel that this makes additional legislation unnecessary, I believe that the financial burden of the ongoing litigation 

that has been imposed on companies like ClearPlay, that are operating legally, does make legislation necessary. Moreover, there is 

no certainty that all courts will agree, so the only way to protect 

the right of parents is in fact to pass legislation. 

Let me also point that this issue has been simmering for 18 

months since the first lawsuits were filed. I had hoped that the 

parties would reach a negotiated solution, but none has been forthcoming yet. 

Yesterday I introduced H.R. 4586 to resolve this issue by ensuring that parents who skip over mute—skip over or mute content do 

not face liability under existing copyright or trademark law. Apparently legislation is necessary to end the unnecessary litigation. The 

Chairman of the Judiciary Committee and I are prepared to move 

this legislation on a stand-alone basis, whereby attaching it to another legislative vehicle to protect the right of parents to shield 

their children from violence, sex and profanity. 

That concludes my opening statement, and the gentleman from 

California, Mr. Berman, the Ranking Member is recognized for his. 

Mr. BERMAN. Thank you, Mr. Chairman. Before I give my opening statement, I just want to point out the irony of proposing legislation that the Register of Copyrights says will legalize that which 

is already legal in order to save one company some litigation expense, and the parallel of that. Perhaps we can just do away with 

the judicial system, leave the court clerks so that the lawsuits can 

be filed, and Congress decides how we think the litigation should 

come out, and then propose and pass legislation to produce that 

outcome. 

I’m opposed to the legislation before us today. Maybe this hearing will convert me, but I doubt it. I have too many concerns about 

the nature and implications of this bill. Clever redrafting might address some of those concerns, but nothing can address my concerns 

about its basic premise. 

3

While I believe that parents should be able to protect their children from exposure to media they find offensive, I don’t believe the 

legislation before us today will advance this goal. In some ways it 

may have the opposite effect. This legislation sends the wrong message to parents, namely that technology can fulfill parental responsibilities. In our modern world parents cannot control what their 

kids see and hear every minute of the day. Parents must, as Professor Heins testified on May 20th at our earlier hearing on this 

subject, parents must equip their children for exposure to offensive 

media, not just turn on the TV or movie filter and leave the room. 

Technology should not become an excuse for avoiding the hard 

work of parenting. 

To be clear, I don’t oppose the ClearPlay technology itself. Rather, I’m opposed to legislation that benefits one particular business 

over its competitors and abrogates the rights of copyright owners 

and trademark holders in the process. The marketplace is the proper forum for resolving this business dispute, not Congress. Congress should focus on encouraging the relevant copyright owners 

and trademark holders to work out a licensing deal for ClearPlay 

technology, not roil the waters with legislation that verges on a bill 

of attainder. 

Unfortunately, the legislative activity on this issue appears to 

have already hampered the industry negotiations. I understand 

that following the May 20th hearing, ClearPlay presented new demands that represented a significant departure from its previous 

position in the negotiations. In other words, the positions of the 

parties, which had been fairly close before the May 20th hearing, 

are getting farther apart as the prospects for legislation improve. 

Since neither ClearPlay nor any of its competitors have been 

found liable for copyright or trademark infringement, this legislation addresses a hypothetical problem. While a Federal District 

Court has before it a case raising these issues—a case I might add 

initiated by one of the technology companies, not by one of the 

copyright holders—it has not yet issued even a preliminary ruling. 

Furthermore, the Register of Copyright will apparently testify that 

ClearPlay is likely to succeed. In other words, there is no problem 

for Congress to correct. While legislation addressing hypothetical 

problems, like the law protecting fast food restaurants against obesity liability, is all the rage these days. It is not a trend with which 

I agree. 

Most importantly, Congress should not give companies the right 

to alter, distort and mutilate creative works, or sell otherwise infringing products that do functionally the same thing. Such legislation is an affront to the artistic freedom of creators and violates 

fundamental copyright and trademark principles. Where the underlying issue, the distinction of proponents of this bill, is this technology doesn’t alter or mutilate the fixed product, it just filters out 

the material that the manufacturer of the technology wants to filter out, that that’s a distinction which—that should fundamentally 

make a difference, doesn’t make real sense to me. 

The sanitization of movies allowed by this legislation may result 

in the cutting of critically important scenes. The legislation legalizes the decision of a ClearPlay competitor to edit the nude scenes 

from Schindler’s List, scenes critical to conveying the debasement 

4

and dehumanization suffered by concentration camp prisoners. A 

close reading of the bill reveals that it will also legalize editing that 

makes movies more offensive, more violent and more sexual. 

Just as the legislation allows nudity to be edited out, it allows 

everything but nudity to be edited out. For instance, the legislation 

allows some enterprising pornographer to offer a filter that edits 

the movie Caligula down to its few highly pornographic scenes and 

endlessly loops these scenes in slow motion. The legislation would 

also appear to legalize filters that make imperceptible the clothes 

of all actors in a movie. Do the bill sponsors really want to legalize 

all-nude versions of Oklahoma and Superman? The types of edits 

legalized by this bill are limited only by editorial imagination. Antitobacco groups could offer a filter that strips all movies of scenes 

depicting tobacco use. Racists might strip Jungle Fever of scenes 

showing interracial romance, perhaps leaving only those scenes depicting interracial conflict. Holocaust revisionists could strip World 

War II documentaries of concentration camp footage. Fahrenheit 9/

11 could be filtered free of scenes linking the houses of Bush and 

Fahd. 

Since the bill also applies to television programming, a number 

of troubling consequences may result. Digital video recorder services like TiVo, which enable their subscribers to digitally record TV 

shows for time-shifting purposes, might offer filters geared to those 

programs. This is not farfetched. At least one DVR service has already tried to filter out all commercials. In the future they might 

offer filters that cleanse news stories of offensive content, for instance, by editing out comments critical of a beloved politician. In 

fact, under the bill, the DVR service could unilaterally engage 

these filters without the permission of the TV viewer, and thus 

might choose to filter out stories helpful to a corporate competitor 

or critical of a corporate parent. 

I know these outcomes are opposite to the intent of the bill’s 

sponsors, but they are the unavoidable outcomes nonetheless, and 

these are just a few of the problems that are apparent after just 

a couple of days of looking at this issue. 

I hope the Subcommittee will not rush to legislate in this area 

and will allow the marketplace to address the legitimate concerns 

of parents. 

I yield back, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Berman. I actually like several of 

your ideas, particularly the one about editing criticism of popular 

politicians, but we can save that for another time. 

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

Mr. KELLER. Thank you, Mr. Chairman. First and foremost, I 

want to thank all the witnesses for taking time out of your busy 

schedules to be here. 

Just as Berman started to make sense, he trashed my Personal 

Responsibility in Food Consumption Act that banned lawsuits 

against fast food restaurants, which I may add passed the Congress 

by a two-thirds vote, and supported by 9 out of 10 of the American 

public. If ClearPlay technology had existed and had silenced Berman’s remarks on that issue, he almost could have had my vote, 

I suspected. 

5

But this is an interesting issue that puts me directly in the crosshairs of two competing interests from the area that I represent, Orlando, Florida, which is a very family-oriented youthful community 

that prides itself on the number one family vacation destination of 

the world, but is also home to companies such as Disney and Universal, which do have substantial movie-making interests, and so 

I feel a little bit like a fur sales at an animal rights convention on 

this issue. [Laughter.] 

And in light of the fact that this issue puts me squarely in the 

cross-hairs of two very friendly groups to me, I appreciate the 

Chairman holding multiple hearings on this issue. I was just thinking this morning I don’t have enough stress in my life, so it’s good 

to keep dealing with this over and over. 

I stand here today—and I had to get that full disclosure out of 

the way in the interest of straight talk—though as someone who 

is very open-minded on this issue, and appreciates very much the 

witnesses coming here. I certainly, on the one hand, understand directors and movie companies not wanting to have scenes which 

they believe are critical to them, edited out, that they may think 

change the focus of the movie. I also very much appreciate the 

technology used by companies like ClearPlay that takes movies and 

makes them all family friendly. I think it is am amazing technology. I think that the Nobel prize should go to people who give 

our community amazing technology that changes our lives like the 

George Foreman Grill and stadium seating in movie theaters 

and——[Laughter.] 

—technology that makes things family friendly. 

So I really appreciate both sides of this issue and look forward 

to getting better educated on them, and thank the witnesses again 

for coming here today. 

Mr. Chairman, I will yield back. 

Mr. SMITH. Thank you, Mr. Keller. 

Are there other Members who wish to make opening statements? 

The gentlewoman from California, Ms. Lofgren. 

Ms. LOFGREN. Mr. Chairman, I won’t make an extensive statement. I am looking forward to hearing as much of the testimony 

as I can, and I also wanted to mention how pleased I am to see 

Mr. Valenti, since he has announced his retirement, and I think it 

is enormously gracious of him to come by even though he is going 

on to brighter fields to share his views on this, certainly along with 

the other witnesses, but thank you very much, Jack. 

Mr. VALENTI. Thank you, Ms. Lofgren. 

Mr. SMITH. We will proceed, and I will introduce our first witness 

today who is the Honorable Marybeth Peters, the Register of Copyrights for the United States. Ms. Peters is the author of ‘‘The General Guide to the Copyright Act of 1976,’’ and has lectured extensively on copyright law. She received her undergraduate degree 

from Rhode Island College and her law degree with honors from 

George Washington University Law Center. 

Our next witness is Dr. Amitai Etzioni, who was named the first 

University Professor at the George Washington University, where 

he is the Director of the Institute of Communitarian Policy Studies. 

From 1987 to 1989 he served as the Thomas Henry Carroll Ford 

6

Foundation Professor at the Harvard Business School. Dr. Etzioni 

is the author of 24 books. 

The next witness is Jack Valenti, who has served as the President and Chief Executive Officer of the Motion Picture Association 

of America for the past 38 years. Born in Houston, Texas, Mr. Valenti was the youngest high school graduate in the city, and became a highly decorated serviceman while serving in the Army Air 

Corps in World War II. He has a BA from the University of Houston and an MBA from Harvard. 

Our last witness is Penny Nance, who is President of the Kids 

First Coalition, a nonprofit organization that works to educate Congress, State and local officials, and the media on a variety of issues 

relating to children. Kids First Coalition works to promote and encourage traditional families, as well as to help those in crisis pregnancies. 

Welcome to you all. As you know, we have your written statements. We ask that you limit your testimony to 5 minutes, and 

without objection the complete testimonies of all witnesses will be 

made a part of the record. 

Ms. Peters, before we begin with you, I’d like to take a minute 

to recognize Jack Valenti. 

Jack, this may or may not be your last time to testify before a 

congressional Committee. I hope it’s not your last, but if it is, I just 

want to thank you for your service to our country, for your service 

to your profession, whom you have served so well, as I mentioned 

a while ago, for 38 years. You have brought to the task intelligence, 

wit, integrity, credibility and even charm. Those are examples for 

all of us to follow, and we hope that even though you may go on 

to other endeavors, that certainly your example will continue with 

us to emulate. 

I’m tempted to quote—I think it was Bob Hope who said ‘‘Thanks 

for the memories.’’ And we certainly, if you do retire in the near 

future, we’ll remember all of those good memories and we will remember them for a long time to come. So we appreciate your being 

here. 

Ms. Peters, we’ll begin with you. 

STATEMENT OF THE HONORABLE MARYBETH PETERS, REGISTER OF COPYRIGHTS, COPYRIGHT OFFICE OF THE 

UNITED STATES, THE LIBRARY OF CONGRESS 

Ms. PETERS. Mr. Chairman, Representative Berman, Members of 

the Subcommittee, I am pleased to appear before you to discuss 

H.R. 4586, the ‘‘Family Home Movie Act of 2004.’’

Litigation addressing whether the manufacture and distribution 

of software that automatically mutes certain sounds and skips past 

certain images in a motion picture when a consumer plays a DVD 

of the motion picture in the privacy of his own home is pending in 

Federal Court in Colorado. Although I’m reluctant to express a 

view on that pending litigation, it’s necessary for me to do that in 

order to address the issues related to the merits of the bill. 

The Family Movie Act would provide that it is not a copyright 

infringement for the lawful possessor of an authorized copy of a 

motion picture to make imperceptible limited portions of audio or 

video content of the motion picture in the private home viewing of 

7

an individual. It would further provide that the use of technology 

to make such audio or video content imperceptible is not an infringement. 

As I understand the technology, it involves software that instructs a DVD to mute limited portions of the audio content or to 

fast forward past limited portions of the audio-visual content of a 

motion picture in order to avoid exposing the viewer to language 

or images that the viewer might find offensive. To qualify for the 

exception no fixed copies of the altered version of the motion picture may be made. 

I understand there’s a scrivener’s error that will be protected— that will be corrected, rather, in the version that was introduced 

yesterday. The requirement that no fixed copy of the altered 

version may be made is supposed to apply to both the act of making the content imperceptible and the use of technology. The way 

it’s worded in the bill that was introduced yesterday, it would 

apply only to the use of technology and not to the conduct. 

The conduct that takes place in the context of individuals and 

families making private performances of movies in their homes. 

The legislation basically says that this applies only to private home 

viewing, and it would have defined, as the version I saw was, ‘‘private home viewing’’ as: viewing in a household by means of consumer equipment or services that are operated by an individual in 

that household and that serve only that household. My written testimony describes the bill as permitting private home viewing and 

as containing that definition. 

The bill, as actually introduced, doesn’t use that term, but the 

concept of private home viewing remains in the bill, which now 

uses that definition to describe the context in which the conduct is 

permitted. 

I believe that both the conduct and the technology should be lawful, but I also believe that such conduct is already lawful. 

For that reason and for others, I oppose enactment of this legislation. Should this conduct be permitted? For me it’s a close call. 

We can all agree that someone watching a movie on a DVD has the 

right to press the mute button and to fast forward to avoid hearing 

or seeing parts of the movie. On balance I believe that a technology 

that basically automates that process for the consumer serves a 

beneficial purpose. 

I do, however, have a number of reservations which I elaborate 

on in my written testimony. I will mention only one this morning. 

Permitting a product that results in altered performances of a motion picture certainly raises questions about whether the moral 

rights of the directors have been violated. Because this alteration 

consists of only bypassing limited portions of the motion picture in 

context with a private performance, where that altered performance is desired by the person watching the movie, I think there is 

no violation of moral rights. 

But that is not to say that the creator of the motion picture does 

not have a legitimate artistic reason to complain, and I’m very 

sympathetic to those complaints. 

In any event, it seems clear to me that under existing law this 

conduct and these products are lawful. I believe that in order to 

violate the right to prepare derivative works, that the derivative 

8

work must be fixed, that is, an actual copy of the derivative work 

must exist. According to my understanding of the technology, there 

is no fixation of a derivative work, and if that’s true, there can be 

no infringement. 

I admit that my reading of the statute is at odds with what the 

1965 Report of the Register basically recommended, and with the 

legislative history. However, I can’t get to where they wanted to be 

with the language of the statute. I believe that fixation is required. 

I do, however, with regard to new technology, see that looking at 

the derivative work right and what it should be and what its scope 

should be in light of new technology is something that we probably 

should in fact be doing, and I basically hope that we have an opportunity to do that. 

Because I see that my time has run out, let me just quickly say 

that with regard to why I oppose it, I don’t see a need for it. I think 

the law is already clear. Second, I see little risk that the law will 

find that this conduct is unlawful, and I’m not in favor of enacting 

legislation to fix a nonexistent problem. I’d rather take this opportunity to look at what new technology may cause with regard to 

real life problems. 

I’d like to end by saying that I have a concern that basically with 

where we are, the pendency of this legislation will make the settlement in the Colorado litigation less likely, and enactment certainly 

will remove all incentive for the companies to work together to 

work out a negotiated settlement. 

If you enact this legislation, please include a sunset provision 

that will expire in two or 3 years. That will provide continuing incentives for motion picture companies and companies that produce 

these products to negotiate and come up with arrangements that 

provide both family friendly versions of movies to the public and 

give directors and motion picture studios more control over how 

their works are presented to the public. If the negotiations don’t 

work, then you can always renew the Act. 

[The prepared statement of Ms. Peters follows:]

PREPARED STATEMENT OF MARYBETH PETERS

Mr. Chairman, Representative Berman and Members of the Subcommittee, thank 

you for inviting me to appear before the Subcommittee to discuss H.R. 4586, ‘‘The 

Family Movie Act.’’ The Family Movie Act would make it lawful for a person who is watching a motion picture on a DVD in the privacy of his or her own home to use software that 

filters out certain types of content that the person would prefer not to see or hear. 

As you pointed out at a hearing last month, Mr. Chairman, such software can be 

used by parents to assist them in preventing their children from seeing or hearing 

objectionable content by muting the sound or fast forwarding past objectionable material. What material is to be filtered out is determined by the provider of the software, but such software can include options that give the user the ability to select 

categories of material that the user prefers not to see or hear. 

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. At the moment, providers of 

such software are free to sell it and consumers are free to use it. If the court ultimately rules that the making or distribution of the software is unlawful—a ruling 

that I believe is unlikely—the time may then be opportune to consider legislation. 

But meanwhile, there is every reason to believe that the proposed Family Movie Act 

is a solution to a problem that does not exist. 

9

It is difficult to address the merits of this legislation without addressing the merits of the litigation in Colorado—something that I would prefer not to do, in part 

because the litigation remains at a very early stage. The Copyright Office generally 

expresses its views on individual copyright cases only in those cases that involve 

important questions of copyright law and policy and in which an erroneous ruling 

would create precedent harmful to the appropriate balance between the rights of 

copyright owners and the needs of users of copyrighted works. For example, I have 

spoken out on issues relating to copyright infringement on peer-to-peer networks 

while litigation involving those issues has been pending because I believe that mass 

infringement on such networks poses an unprecedented threat to creators and copyright owners. In contrast, I do not believe that the litigation relating to the subject 

matter of this legislation implicates such issues, and I have no desire to be drawn 

into the Colorado litigation. 

Nevertheless, I cannot avoid offering some views on the current state of the law, 

because my recommendation against the enactment of the Family Movie Act is 

based in part on my conclusion that the conduct that it is intended to permit is already lawful under existing law. 

POLICY CONSIDERATIONS

Let me start with a proposition that I believe everybody can agree on. I do not 

believe anybody would seriously argue that an individual who is watching a movie 

in his or her living room should be forbidden to press the mute button on a remote 

control in order to block out language that he or she believes is offensive. Nor 

should someone be forbidden to fast-forward past a scene that he or she does not 

wish to see. And certainly parents have the right to press the mute and fast-forward 

buttons to avoid exposing their children to material that they believe is inappropriate. 

Does that mean that parents should be able to purchase a product that makes 

those decisions for them—that automatically mutes certain sounds and skips past 

certain images that the provider of that product believes parents would not want 

their children to hear or see? What if the parent is able to determine what categories of material (e.g., profanity, nudity, violence) should be blocked, and is willing 

to trust the provider of the filtering product to make the ultimate judgments about 

what material in a particular movie falls into the selected categories? 

It is very tempting to say that consumers should be able to purchase such products, and that providers of such products should be permitted to develop and market 

them. But I have to say that I am hesitant to endorse that proposition. 

First of all, 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. Parents who have 

not prescreened a movie and made their own judgments can take guidance from the 

ratings that appear on almost all commercially released DVDs. Not only do those 

ratings label movies by particular classes denoting the age groups for which a particular movie is appropriate (e.g., G, PG, PG-13, R), but those ratings now also give 

parents additional advice about the content of a particular motion picture (e.g., ‘‘PG13 . . . Sexual Content, Thematic Material & Language’’ (from ‘‘The Stepford 

Wives’’) or ‘‘PG-13 . . . Non-stop Creature Action Violence and Frightening Images, 

and for Sensuality’’ (from ‘‘Van Helsing’’)). It is appropriate that parents and other 

consumers should be given sufficient information to make a judgment whether a 

particular motion picture is suitable for their children or themselves to view. And 

there are many third-party services that supplement the information provided by 

the movie studios. For example, the ‘‘Weekend’’ section of the Washington Post contains a ‘‘Family Filmgoer’’ column that briefly summarizes current motion pictures 

and offers more detailed commentary on the suitability of each movie for children 

of various age groups. For example, last week’s column made the following observations as part of its commentary on the current motion picture, Saved!:

[H]igh schoolers may find it both humorous and intriguing. A little too adult 

for middle-schoolers, the movie contains a strongly implied sexual situation and 

rather romanticizes the idea of being an 18-year-old unwed mother. Other elements include profanity, sexual slang, homophobic talk, drunkenness, smoking 

and a jokey reference to bombing abortion clinics.

It seems that if a parent doesn’t want a child to see offensive portions of a particular movie that’s available on DVD, or if a person doesn’t want to watch such 

portions himself, there is a simple choice: don’t buy or rent the movie. In fact, those 

10

1David Pogue, ‘‘STATE OF THE ART; Add ‘Cut’ and ‘Bleep’ To a DVD’s Options,’’ New York 

Times, May 27, 2004, page G1. 2Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. ll, 123 S.Ct. 2041 (2003). 

While the Dastar decision is not the subject of this hearing, I believe that the subcommittee 

should examine whether section 43(a) of the Lanham Act should be amended to reflect what 

was the longstanding understanding prior to Dastar—that section 43(a) is an important means 

for protecting the moral rights of attribution and integrity. Although I will comment no further 

on Dastar at this hearing, and although I will not comment on the portion of the proposed legislation that would provide an exemption from liability under the Lanham Act, it is worth noting 

that in the wake of Dastar (and, for that matter, even under pre-Dastar law), there may be little 

reason to be concerned that the conduct proposed to be covered by the proposed Family Movie 

Act would violate the Lanham Act in any event. 3 Berne Convention for the Protection of Literary and Artistic Works, Art. 6bis.

of us who are truly offended by some of the content found in many movies might 

ask ourselves whether we are doing ourselves or society any favors by buying or 

renting those movies. I have always had great faith in the marketplace, and I believe that if enough people simply refuse to spend their money on movies that contain offensive material, the incentives for motion picture studios to produce them 

will diminish. 

I also have to wonder how effective such filtering products are. A review of one 

such product in the New York Times observed:

The funny thing is, you have to wonder if ClearPlay’s opponents have ever even 

tried it. If they did, they would discover ClearPlay is not objectionable just because it butchers the moviemakers’ vision. The much bigger problem is that it 

does not fulfill its mission: to make otherwise offensive movies appropriate for 

the whole family.

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. (So much for the promise to remove references to ’’God or 

a deity.’’)

Similarly, in ’’Terminator 3,’’ the software skips over the Terminator—a cyborg, 

mind you—bloodlessly opening his abdomen to make a repair. Yet you’re still 

shown a hook carving bloody gouges into the palms of a ’’Matrix Reloaded’’ character.1

Again, perhaps it’s just better to avoid getting the offending movie in the first 

place. 

Moreover, 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 dialog from his or her private home viewing of a movie. It’s another matter to say that a for-profit company should be able to commercially market a product that alters a director’s artistic vision. 

That brings me to an objection that is more firmly rooted in fundamental principles of copyright, which recognize that authors have moral rights. To be sure, the 

state of the law with respect to moral rights is relatively undeveloped in the United 

States, and a recent ill-considered decision by our Supreme Court has weakened the 

protection for moral rights that our laws offer.2 Moreover, I am not suggesting that 

enactment of the proposed legislation would violate our obligations under the Berne 

Convention to protect moral rights.3 In fact, I do not believe that the Berne Convention’s provision on moral rights forbids permitting the making and marketing of 

products that permit individual consumers to block certain undesired audio or video 

content from their private home viewing of motion pictures. But beyond our treaty 

obligations, the principles underlying moral rights are important. The right of integrity—the author’s right to prevent, in the words of Article 6bis of the Berne Convention—the ‘‘distortion, mutilation, or any other modification of, or other derogatory 

action in relation to [his or her] work, which would be prejudicial to his honor or 

reputation’’—is a reflection of an important principle. As one leading commentator 

has put it: 

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 inVerDate 0ct 09 2002 11:58 Aug 05, 2004 Jkt 089266 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\061704\94286.000 HJUD1 PsN: 94286
11

4Sam Ricketson, The Berne Convention: 1886–1986 456 (1987). 5This brief legal analysis is based on my admittedly sketchy understanding of how the products that are the subject of the proposed legislation work. If, for example, these products actually caused copies to be made of any or all of a motion picture, my analysis might well be different. 

tegrity, 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.4

I can well understand how motion picture directors may be offended when a product with which they have no connection and over which they have no control creates 

an altered presentation of their artistic creations by removing some of the directors’

creative expression. This is more than a matter of personal preference or offense; 

it finds its roots in the principle underlying moral rights: that a creative work is 

the offspring of its author, who has every right to object to what he or she perceives 

as a mutilation of his or her work. 

Although I acknowledge that there is some tension between principles of moral 

rights and the products we are discussing today, I believe that this narrowly-defined 

activity does not violate moral rights, for several reasons: (1) it takes place in the 

context of a private performance of a motion picture in which the alteration of the 

original motion picture is not fixed in a tangible medium of expression; (2) it consists only of omissions of limited portions of the sounds and/or images in the motion 

picture, rather than the addition of material or alteration of material in the motion 

picture; and (3) it is desired and implemented by the individual who is viewing the 

private performance, who is perfectly aware that there are omissions of material 

and that the director and studio did not consent to those omissions. But that is not 

to say that the creator of the motion picture does not have a legitimate artistic reason to complain—and I am very sympathetic to such complaints. 

Nevertheless, despite my misgivings, I believe that on balance parents and other 

consumers should be able to purchase products that allow them to mute and skip 

past audio and visual content of motion pictures that they believe is objectionable. 

While the artistic integrity as well as the continuity of the motion picture may suffer, the person viewing the edited performance is fully aware that he or she is viewing a performance of less than the entire motion picture because that was his or 

her preference. Because only a private performance is involved, the only changes 

consist of deletions, and no copies of an edited version of the motion picture are 

made or further communicated, I do not believe the director or copyright owner 

should have the power to stop the marketing and use of software that renders such 

a performance. 

One reason why I am reasonably comfortable with this conclusion is that, although the producer and marketer of the software is presumably making a profit 

from its sale, it is difficult to imagine any economic harm to the copyright owner. 

The software is designed to be used in conjunction with an authentic DVD of the 

motion picture. In fact, arguably some people who would not have purchased or 

rented a particular movie if they did not have the ability to skip past portions that 

they believe are objectionable will purchase or rent it if they can obtain the software 

for that particular movie. 

ANALYSIS OF CURRENT LAW

Despite my conclusion that on balance, the conduct that is addressed by the Family Movie Act should not be prohibited, I do not believe that legislation needed because it seems reasonably clear that such conduct is not prohibited under existing 

law. The exclusive rights of the copyright owner that might arguably be implicated 

are the reproduction, distribution, public performance and derivative work rights, 

but on examination, it seems clear that there is no infringement of any of those 

rights.5

There is no infringement of the reproduction right because no unauthorized copies 

of the motion pictures are made. Rather, an authorized copy of the motion picture, 

distributed on a DVD, is played in the same manner as it would be played on any 

conventional DVD player, but with some of the audio and video content of the motion picture in effect deleted from that private performance because it is muted or 

bypassed. The distribution right is not infringed because no copies of the motion picture are distributed, apart from the authorized, unedited DVD that the consumer 

has purchased or rented. The public performance right is not infringed because the 

12

6Of course, it is possible to use the filtering products to alter a performance of the motion 

picture in a public setting, resulting in an infringing public performance. But as I understand 

it, that is not the typical use, nor are the products that are the subject of this legislation marketed for such use. Moreover, if there were a public performance, it would be an act of infringement not because the performance was altered, but simply because the motion picture was performed in public without the authorization of the copyright owner. 

motion picture is played in the privacy of the viewer’s home, a quintessential private 

performance.6

Not surprisingly, the motion picture studios have not asserted claims of infringement of the reproduction, distribution and public performance rights. Rather, they 

have alleged infringement of the right to prepare derivative works. The analysis of 

that claim is a little more complex, but ultimately the result is the same: I believe 

that the arguments that such products infringe the derivative work right are weak. 

The fundamental flaw in the claim of infringement of the derivative work right 

is that the only possible manifestation of a derivative work is in the private performance itself. It is true that the home viewer who uses one of these products to 

remove some of the movie’s audio and/or visual content is seeing an altered version 

of the film. Such a version might appear to be an adaptation, or, in copyright parlance, a ‘‘derivative work.’’ But that is not my reading of the law. Section 106(2) of 

the Copyright Act gives the copyright owner the exclusive right to ‘‘prepare derivative works based upon the copyrighted work.’’ The question is, can you have a derivative work when no copy (or ‘‘fixation’’) of the derivative work exists? Is an altered 

private performance of a motion picture a derivative work when it leaves the copy 

of the motion picture intact and does not create a copy of the altered version? 

A review of the legislative history of the 1976 Copyright Act might lead one to 

the conclusion that the derivative work right can be infringed simply by causing an 

altered performance of a work. The reports of both the House and Senate Judiciary 

Committees on the 1976 Act state:

Preparation of derivative works.—The exclusive right to prepare derivative 

works, specified separately in clause (2) of section 106, overlaps the exclusive 

right of reproduction to some extent. It is broader than that right, however, in 

the sense that reproduction requires fixation in copies or phonorecords, whereas 

the preparation of a derivative work, such as a ballet, pantomime, or improvised 

performance, may be an infringement even though nothing is ever fixed in tangible form.

H.R. Rep. No. 94–1476, at 64 (1976); S. Rep. No. 94–473, at 58 (1976). I believe that 

when the House and Senate Reports spoke of derivative works, such as ballets, pantomimes, and improvisations, that are not fixed in tangible form, they were referring to public performances of works in altered form. There are strong policy reasons for recognizing a derivative work right when a work is performed publicly in 

an altered form, even if the alteration never exists apart from the performance. Certain types of works, such as the works mentioned in the legislative history, are exploited primarily by means of public performance rather than by sale of copies, and 

to require fixation of the derivative work in order to have infringement of the derivative work right could defeat the very purpose of recognizing a derivative work 

right. 

However, while it may have been the intent of Congress not to make infringement 

of the derivative work right turn on whether the derivative work has been fixed, 

I do not find that intent expressed in the language of the statute. The exclusive 

right is a right to ‘‘prepare derivative works based upon the copyrighted work.’’ The 

question then becomes, what is a derivative work? Must a derivative work be fixed 

in a tangible medium of expression? Certainly in order to qualify for copyright protection, a derivative work—like any work—must be fixed in a tangible medium of 

expression. 17 U.S.C. § 102(a). But is there a fixation requirement for infringement 

of the derivative work right? 

Although one might expect the extensive list of definitions in § 101 of the Copyright Act to include a definition of as fundamental a term as ‘‘work,’’ no such definition is exists. However, § 101 does tell us when a work is ‘‘created:’’

A work is ‘‘created’’ when it is fixed in a copy or phonorecord for the first time 

where; where a work is prepared over a period of time, the portion of it that 

has been fixed at any particular time constitutes the work as of that time, and 

where the work has been prepared in different versions, each version constitutes a separate work.

If a work is created when it is fixed in a copy or phonorecord for the first time, 

it is difficult to imagine that the work exists prior to that time. Thus, the Copyright 

13

Act seems to have the functional equivalent of a partial definition of a work; while 

it may not tell us everything that we need to know in order to recognize a ‘‘work,’’

it does tell us that a work must be fixed in a copy or phonorecord. And if it is a 

work in progress, then at any point in time, the ‘‘work’’ consists of that which has 

already been fixed. 

Because a plain reading of the statute leads to the conclusion that in order to 

have an infringement of the derivative work right, the derivative work must be 

fixed, I find it difficult to conclude that there is an infringement of the derivative 

work right when software instructs a DVD player to mute certain sounds or skip 

past certain images in a motion picture being played on the DVD. The putative derivative work is never fixed. Moreover, if, as I understand to be the case, the software itself consists of instructions to mute the soundtrack at a point a certain number of minutes and seconds into the performance of the movie, or to skip past the 

part of the movie that begins at a point a certain number of minutes and seconds 

into the performance of the movie and ends certain number of seconds later, I find 

it difficult to characterize that software as a derivative work, since none of the underlying work is actually incorporated into the software. 

There are other products in the marketplace that serve a similar function, but 

which are infringing and should not be permitted. For example, I understand that 

some products on the market consist of videotapes of motion pictures that have had 

allegedly offensive scenes physically removed from the videotape. In such cases, 

there is—and ought to be—a violation of the derivative work right: permanent copies of edited versions of the copyrighted motion pictures are made and distributed. 

They can also be redistributed, competing in the marketplace with legitimate copies 

and perhaps ending up in the hands of recipients who aren’t even aware that they 

are edited versions. But it is not the intent of the proposed Family Movie Act to 

make those products lawful. 

IS THERE A NEED FOR LEGISLATION?

Because I believe that under existing law, the conduct that is addressed by this 

legislation is already lawful, and because I believe it is likely that the district court 

in Colorado will come to the same conclusion, I do not believe there is any reason 

to enact legislation that would make lawful that which already is lawful. 

I could understand the possible need for legislation if there were substantial 

doubt as to the outcome of the litigation, or if there was a pressing need to settle 

the issue once and for all by Congressional action due to an urgent need to permit 

conduct which people could not engage in unless the legislation were enacted. But 

no injunction has been entered. The defendants are still producing their products. 

Indeed, I understand that recently a major consumer electronics equipment manufacturer has begun to distribute a DVD player that has such software preloaded—

compelling evidence that the pending litigation has not had a chilling effect. And, 

given my ambivalence about the desirability of permitting the conduct at issue here, 

I cannot endorse the notion that there is a pressing need to resolve the issue here 

and now. 

In fact, the issues raised at this hearing persuade me that we need to reexamine 

the derivative work right in order to determine whether the approach taken in 1976 

still works in the 21st Century, when technological changes may well be making fixation an obsolete concept for purposes of determining when the derivative work 

right has been violated. While the technology that we have been discussing today 

is fairly benign, it is not difficult to imagine technologies that, without creating a 

fixation of a new derivative work, result in performances that do not simply edit 

out limited portions of the work that many viewers would find offensive, but either 

add new material or result in a rendition of the copyrighted work that so changes 

the character or message of that work that it constitutes an assault on the integrity 

of the work. The marketing and use of such technologies should not be tolerated, 

and I strongly believe that any legislation that affirmatively permits the use and 

marketing of the technologies we are discussing today should also expressly prohibit 

the use and marketing of technologies that result in performances of those more 

harmful alterations of a work. 

Rather than enact narrow legislation that would create a safe harbor for the technologies that simply mute and skip content, a safe harbor that—as I have already 

explained—we do not urgently need, I believe we should take a little more time and 

give a little more thought to the extent to which the derivative work right should 

require fixation as a prerequisite for infringement. As I have already noted, 

Congress’s original, but apparently unrealized, intent was that there need not be 

a fixation of the work in order to infringe the derivative work right. We should take 

a fresh look at that judgment and ask under what circumstances, if any, fixation 

14

should be a requirement. For example, I believe that fixation should not be required 

in order to infringe the derivative work right in cases where there is a derivative 

public performance—e.g., of a play, or a ballet, the types of performances that were 

addressed in that part of the legislative history that stated that there ‘‘may be an 

infringement even though nothing is ever fixed in tangible form.’’ Whether fixation 

should be a requirement in order to infringe the derivative work right where there 

is a only private performance may require a more nuanced approach, looking at the 

nature of the alteration from the original work. The result of such a study might 

be an amendment could be in the form of a new definition of ‘‘to prepare derivative 

works based upon the copyrighted work’’ to be added to section 101. 

Assuming that you do decide to enact legislation now, I will now turn to the specific legislative text that has been proposed. 

THE FAMILY MOVIE ACT

The Family Movie Act would amend section 110 of the Copyright Act to provide 

that it is not an infringement of copyright for the owner or lawful possessor of an 

authorized copy of a motion picture to make limited portions of audio or video content of the motion picture imperceptible in the course of private home viewing of 

the motion picture. It further provides that the use of technology to make such 

audio or video content imperceptible is not an infringement. In order to qualify for 

the exemption, no fixed copy of the altered (i.e., edited) version of the motion picture 

may be made. 

‘‘Private home viewing’’ would be defined as viewing for private use in a household, by means of consumer equipment or services that are operated by an individual in that household and that serves only that household. This definition is 

adapted from the definition of ‘‘private home viewing’’ found in section 119 of the 

copyright law, the statutory license for secondary transmissions of television broadcast signals by satellite carriers. 

The legislation would codify what I believe is existing law: A consumer would be 

permitted to use technology, such as the software that we have been discussing, 

that automatically mutes parts of the soundtrack of a motion picture or fast-forwards past a part of the audiovisual content of the motion picture when the consumer is playing a lawfully acquired copy of the motion picture in the privacy of 

his or her own home. Not only would the consumer’s use of that technology be noninfringing, but the manufacture and sale of that technology would also be noninfringing, to the extent that it enables the muting or fast-forwarding. 

The legislation would also provide that it is not a violation of the Lanham Act 

to engage in such conduct, but that to qualify for this immunity the manufacturer 

of the technology must provide a clear and conspicuous notice that the performance 

of the motion picture is altered from the performance intended by the director or 

copyright holder. 

Mr. Chairman, as I have already stated, I do not believe that this legislation is 

necessary or desirable at this time. But if the subcommittee disagrees, then I believe 

that the language that you have drafted is a reasonable means of accomplishing 

your goals.

Mr. SMITH. Thank you, Ms. Peters. 

Dr. Etzioni. 

STATEMENT OF AMITAI ETZIONI, FOUNDER AND DIRECTOR, 

THE INSTITUTE FOR COMMUNITARIAN POLICY STUDIES, 

GEORGE WASHINGTON UNIVERSITY 

Mr. ETZIONI. Mr. Chairman, Members of the Committee, I greatly appreciate the opportunity to testify, and I strongly favor this 

bill. My main problem is, Mr. Chairman, that most of what I was 

going to say you already said, so let me try not to repeat too much 

of your well taken points. 

I studied this matter for more than 40 years, not the new technology, but the need the protect our children from violent and vile 

material, first at Columbia University, then the year I served in 

the Carter White House, and most recently we prepared a special 

issue of the Chicago Kent Law Review to examine the first amendment issues, which allegedly are involved here, including the Heins 

15

argument that even minors at age 1 or 2 have full court first 

amendment rights, and nobody can protect them from any vile or 

violent material. Otherwise, their first amendment rights are, we 

are told, being abridged. 

The data is unmistakable, violence—and one of the merits of this 

bill, it covers not just pornography but also violence. Violence 

causes enormous harm to children. Our culture is awash in video 

games, movies, music which encourages violence, and by any sort 

of scientific measure, it’s made children more predisposed to violent 

acts themselves, to drug abuse, to misbehaving in school. I don’t 

want to take all the time to make—to list 1100 studies which show 

the harm done to children, especially by violence. 

The argument that we cannot distinguish creative violence, 

which is essential to the story, from gratuitous violence, is completely unsustainable. Courts and other people have found very 

clear criteria to distinguish violence which adds nothing to the 

story, is just added to the movie so it will sell better in countries 

that don’t speak English or for other gratuitous reason. 

The only word I would like to add the your opening statement 

is parents don’t only have a right, they have a duty to shape the 

educational environment of their children. That’s what parenting is 

all about. So the notion—especially about young children, age up 

to 12—that parents would—that they should leave them exposed to 

whatever the media puts in there, and that they’re not allowed any 

help against it, I find undermining parents’ ability to shape the 

educational environment of their children. 

I ch0ose—I have five sons. I cho0se the books they read, when 

they’re young, when they once reach 12 or later, they make their 

own choices. I cho0se the school to send them to. I go to my board 

meetings of the school to participate in shaping what the school 

teaches them. And in the end, these are just minor forces countering the flood, which will not stop. So if we do not allow this technology to work, all we’re going to do, we’re going to leave all the 

other sources of media, video games and such, which reach our 

children, in place. And we’re not allowed one of the few tools which 

allow parents to somewhat, help them somewhat in defending their 

children. 

The same fallacious arguments have been raised against other 

technologies. We were told when the V-chip was introduced, that 

it’s going to be the end of the world. When ratings were introduced 

to the movies we were told that that’s going to be end of creative 

skills. The evidence simply shows that no harm was done to the 

creative industry, but you slightly help parents to protect their 

children. 

I see no, nothing wrong if TiVo or anybody else would, as a next 

step, make it easier to acquire edited versions, exactly as defined, 

for use in the private home, and maybe one day the industry will 

get around to issue us age-appropriate products, to allow us to buy 

videotapes and DVDs which are marked, ‘‘These have been cleaned 

up for children 12 and younger,’’ ‘‘Those are suitable for adolescents,’’ and ‘‘Those are suitable for everybody else.’’

Let me say in summary, I’m strongly in favor of the bill as drafted. 

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Let me add as a footnote, if I may, as a Jew, I very much regret 

you drawing the Holocaust into this, Mr. Berman. 

[The prepared statement of Mr. Etzioni follows:]

PREPARED STATEMENT OF AMITAI ETZIONI


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Mr. SMITH. Thank you, Dr. Etzioni. 

Mr. Valenti? 

STATEMENT OF JACK VALENTI, PRESIDENT AND CHIEF EXECUTIVE OFFICER, MOTION PICTURE ASSOCIATION OF AMERICA 

Mr. VALENTI. Thank you, Mr. Chairman. First I really want to 

thank you. I was deeply moved by what you said, and I’m grateful 

to you and Congresswoman Lofgren as well. These are trying times 

for me right now. 

But this Committee has been the great protector of intellectual 

property, which I need not point out to this Committee, is America’s greatest trade export, producing great surplus balances of payment while we’re bleeding from trade deficits. 

I want to thank you, Mr. Chairman, the Ranking Member, Mr. 

Berman, for 4077, H.R. 4077, which is I think one of the best measures that’s come out of this Committee, and I hope it becomes law. 

Thank you for that. 

And finally, Mr. Chairman, before I begin my pathetically 

ineloquent comments, I come before you with great reluctance. 

You’ve been a great champion and a great friend, and I find myself 

quite hesitant in trying to take issue with you on anything, so I 

hope you’ll allow me to do this, because I really believe in what I’m 

about to say, but I do regret very much that we’re on different 

sides on this. Please forgive me. 

What I want to say here is simple and straightforward, and it’s 

this, that it rests on two very impressive premises. And one of 

them is that the right to make derivative works, whether fixed or 

nonfixed, from a copyrighted work, is under law, under copyright 

law, a fundamental right that is exclusively the right of the copyright owner. And to change it, to diminish it, to shrink it, I think 

is not in the long-range interest of this country. And the second is, 

my second premise is, it is the marketplace, not the Congress, that 

ought to deal with these commercial disputes, and that’s what they 

are. And before I finish here, I will tell you I think we’re on our 

way to having it done in the proper way. 

Now, what this law tells us, I think with great clarity is, as I’ve 

said, that only the copyright owner has the right to determine who 

changes, produces a derivative work from his copyrighted work. 

Now, this movie filtering bill, I think would so seriously erode that, 

that allows somebody making money off of skipping scenes or dialogue, which disfigures the original vision of the creator who spent 

a year or two working on this movie, and it cost $100 million to 

make, and somebody somewhere in a back room—we don’t know 

who they are—really makes these kind of cuts. And Ms. Peters, in 

her comments, points out that even that is awkwardly done, and 

it doesn’t even get the job done. So there’s some kind of a 

misfigurement going on. It’s not what the creator had in mind. 

I fought for 38 years to both defend the first amendment and to 

make sure that artistic integrity could be preserved in this country. 

I think it is valuable, and I think in any way to dishonor it, is not 

good for this country. 

Now, let me go on to what I think is important. I don’t have any 

objection, nor do I think the creative people have, in people’s homes 

68

to do what they choose to do with the technology, fast forwarding 

and all the stuff that they do, nothing wrong with that. But somebody, for profit, to come in and make these judgments, and then 

to display it and deploy it to the known western world is not right, 

it is just not right. 

One objection is this, our objection is, I think for the Congress 

to give political and legal cover to companies who do this, by offering a disfigured version of a movie without regard to the creative 

vision of the director and approval of the studio just doesn’t make 

any sense. 

That brings me to my second issue, my second premise. I would 

hope that this Committee would allow the parties to negotiate. 

Now, you know this has been going on for some time, Mr. Chairman, and you rightly said it’s a long time. But I am not part of 

these negotiations because antitrust law prevents the MPAA from 

getting involved. So I can only tell you what I have been told and 

do in part believe. And that is that these negotiations are complex, 

multi-faceted, multi-tiered, and that these are negotiations that 

take both sides to agree. Now, what has happened is, that I’ve been 

told that the prospect of having victory handed to them, without 

having to go through these negotiations, is causing on the other 

side a diminishing incentive to negotiate. 

I don’t blame ClearPlay. Frankly, if I was in their shoes, I’d be 

doing exactly what they’re doing, talk, talk, talk, but don’t make 

a deal. Let Congress do it for you. You get everything free. Why 

negotiate? And I think that’s pretty smart tactics on their part. 

And therefore, Mr. Chairman, I think you should know that the 

studios, I am told, also are negotiating with another company providing the same services, called Trilogy. And Trilogy has sent a letter to this Committee saying, ‘‘We believe the marketplace ought 

to decide this, as it has to do.’’ This is a business agreement that 

Congress has no expertise in. 

Now, I want to finish by saying—before that red light is going 

on, and dismays me considerably, I might add——[Laughter.] 

But I want to finish as I began, Mr. Chairman. I endorse your 

objectives, and that is to have more family friendly movies in 

choices for America, and we’re doing that. All you have to do is go 

down and look at the top grossing pictures every week, and you 

will see increasingly at the top of the list the G and the PG rated 

films. Now, the reason why they’re there is because they’re a complete narrative. Other pictures are not a complete narrative, because if ClearPlay has its way, you will see something in there that 

will not only dismay you, it will puzzle you, because the conversation, the dialogue, the scenes that have been taken out, which rips 

apart the journey of the dramatic narrative. So I think with great 

passion, Mr. Chairman, I believe if you could go back and say, ‘‘Negotiate now, it’s going to be business negotiations, not a congressional law to do this,’’ it will get done. 

Thank you. 

[The prepared statement of Mr. Valenti follows:]

PREPARED STATEMENT OF JACK VALENTI

Chairman Smith, Mr. Berman, distinguished Members of the Subcommittee: 

This Committee stands in the vanguard of the protectors of copyright and intellectual property in this country. You, Chairman Smith and you, Ranking Member BerVerDate 0ct 09 2002 11:58 Aug 05, 2004 Jkt 089266 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\061704\94286.000 HJUD1 PsN: 94286
69

man, both introduced H.R. 4077, which can be justly hailed as a valuable and important measure that protects copyrighted works. All those who work and create in 

the intellectual property community—America’s greatest trade export—have deep 

gratitude for your championing of copyright. Which is why it is with deeply profound reluctance that I must testify in opposition to the movie filtering bill called 

the ‘‘Family Movie Act.’’ My brief here is simple and straightforward. It rests on two impressive premises. 

The first is that the right to make ‘‘derivative works’’ from a copyrighted work is, 

under copyright law, a fundamental property right belonging exclusively to the copyright owner, and should be preserved else copyright begins to decay. The second is 

that the marketplace, not Congress, is the best place to resolve the type of commercial dispute that gives rise to this legislation. 

The law tells us, with great clarity, that the owner of a copyrighted work—and 

only that owner—has the authority to decide if someone else may produce a product 

derived from that copyrighted work. The title deed of this valuable principle has 

solid congressional roots. It is enshrined in Section 106 of the Copyright Act. It 

means that no one may usurp your right to prepare and sell, for example, an 

abridged version of your book, song, or movie because they think that some members of the public might pay for a version that eliminates certain parts of that creation. 

The movie filtering bill would seriously erode that core right by legalizing businesses that sell technology, for a profit, which can ‘‘skip and mute’’ scenes or dialogue to create an abridged version of a movie, as long as no ‘‘fixed copy’’ of the altered version is created. Of course, we understand that the purpose of the bill is 

to come to the aid of commercial services that, without permission of the owners 

of the copyright, use this technology to create so-called ‘‘family friendly’’ versions of 

movies. These versions delete scenes or mute dialogue that the service’s employees 

deem too violent, too coarse, too suggestive, or otherwise may be objectionable to 

some members of the American public. 

But the legislation is in no way cabined to permit only such services to flourish, 

and, consistent with the First Amendment, probably could not. Anyone could use 

this statute to go into business to sell abridged versions of movies for any purpose: 

to skip every part of the movie except the violent scenes; to remove any reference 

to, say, interracial dating; or simply to offer a one-hour version of a classic movie 

like ‘‘Saving Private Ryan,’’ eliminating all the parts somebody thought were nonessential. And while this legislation is confined to movies, is there any principled 

difference between businesses that make their money offering edited versions of 

someone else’s movies and those that would offer edited music or books distributed 

in digital form? 

The inroads into copyright law allowed by this bill could have other unhappy consequences. Failure to adequately protect the exclusive right of copyright owners to 

authorize the making of derivative works and the rights of authors would violate 

U.S. obligations under the Berne Copyright Convention. Moreover, a breach of the 

obligation relating to derivative works would be actionable under the WTO TRIPS 

provisions. 

The future of our creative industry, and its spectacular nourishment of the U.S. 

economy, depends on the ability of U.S. trade negotiators to persuade other nations 

to respect our copyrights by strictly complying with their international obligations 

under the Berne Convention and the WIPO Copyright Treaty. I ask you to consider 

this indisputable truth: if the Congress enacts a law that is inconsistent with our 

international obligations, our ability to insist that our trading partners comply with 

their obligations to us is severely undermined. 

It is obviously in our companies’ interests to produce movies that appeal to a large 

number of people of all ages, call them ‘family friendly’ or however you describe 

them. And we do not, of course, object to people in their homes for our own personal 

tastes fast forwarding through scenes they might not want to watch, or might not 

want their children to watch. Our objection is simply to Congress providing legal 

cover to companies that want to make a profit by offering an edited, abridged 

version of a movie without regard for the wishes of the director who created the 

movie or the studio that owns the copyright to the movie. 

That brings me to my second point: I ask you to allow the parties and the market 

to sort this out without any legislation. Is that not a sensible, reasonable suggestion? 

As you know, Mr. Chairman, there is pending litigation in the court that will decide the dispute between the parties. This litigation includes the commercial concerns that sell a variety of kinds of ‘‘movie filters,’’ the movie studios that own the 

copyrights, and the directors who created the movies being abridged. More importantly, there are also ongoing productive negotiations between individual studios 

70

and the editing services to try to resolve this dispute through licensing agreements 

acceptable to all sides. The essence of this solution would involve the studios, in consultation with the directors, creating ‘‘airplane-like’’ versions of popular movies. The 

commercial editing services would use these versions as templates from which to 

prepare their alternative versions. 

These negotiations are complex, multi-issued, and multi-sided. These are not negotiations that the antitrust laws permit to be carried out by the MPAA, operating 

as an association. Instead, each studio must discuss the terms and conditions of any 

licensing agreements individually with each of the film filtering firms. I am, therefore, not privy to the exact details of the negotiations between the individual studios 

and the filtering companies. I do understand that substantial progress has been 

made, and there is hope for a light at the end of the tunnel. 

However, I am also hearing that the prospect of having victory handed to them 

by legislation may have dampened the enthusiasm of one side to come to fair terms. 

It is self-evident that if a party believes that it will obtain everything that it wants 

for free, there is less incentive to bargain in good faith. 

I hold out great hope that agreements can be hammered out that would result 

in acceptable commercial and artistic choices for everyone. Any settlement agreed 

to among the parties is far more likely to accommodate all the interests concerned 

than any legislative solution imposed upon them. This is a decision that needs to 

be developed in the marketplace between commercial firms, and is unsuitable to 

being judged and decided by legislation. 

I know that this has taken time. But give us the chance we need to attempt to 

work this out. We all know that the threat of potential legislation will continue to 

hang in the air. We just ask that a clear message be sent to all sides: ‘‘Work this 

out as business groups do every day, by negotiation, not by legislative threat.’’

Mr. Chairman, I have no quarrel with your objective: to increase choices for families who want to watch our movies. We want the same. But, with much passion, 

we believe that goal has to be achieved through business agreements that make 

sense in the marketplace. Pushing this legislation through now will not, I fear, be 

seen in the fullness of time as a boost for America’s parents, but as a unnecessary 

blow to the first principles of copyright. 

Thank you, Mr. Chairman, and your colleagues on the Committee.

Mr. SMITH. Thank you, Mr. Valenti. 

Ms. Nance. 

STATEMENT OF PENNY YOUNG NANCE, PRESIDENT,

KIDS FIRST COALITION 

Ms. NANCE. Thank you, Mr. Chairman and Members of the Committee, and it it’s not fair that I have to go after the charming and 

eloquent Mr. Valenti, but I’ll try my best. 

My name is Penny Young Nance, and I’m the President of the 

Kids First Coalition. We’re a nonprofit educational and advocacy 

group that I founded with the goal of protecting children and advancing pro-family legislation. I sit before you not only as a profamily advocate, but also as a very concerned mother of two young 

children. 

Today I’m here to represent members of my organization, mostly 

moms who downgraded professional careers to stay home full time, 

or like I do, part time with their children, as well as countless parents across the country that seek to protect their children from 

graphic sexual images and violence which unmistakably damage 

our children. 

The Kaiser Family Foundation reports that 95 percent of children, ages 0 to 6, live in a home where there’s a VCR or a DVD 

player. They say that on average these kids watch just the VCR 

or DVD player—this is not totaling in television time—40 minutes 

a day. And of course, we all know that not everything viewed by 

these children is age appropriate. Recent studies by the American 

Psychological Association and the American Academy of Child and 

71

Adolescent Psychiatry, both say that the major effects of seeing violence on TV or movies are children may become less sensitive to 

the pain and suffering of others, children may be more fearful of 

the world around them, or even worse, children may become more 

likely to behave in aggressive or hurtful ways toward others. 

On the issue of a child’s exposure to viewing graphic sex, Donna 

Rice Hughes’ group, Enough is Enough, has found that kids exposed to the viewing of graphic sex scenes begin to view sex without responsibility as acceptable and even desirable. And no big surprise, in the long range with this kind of view inculcated in their 

little hearts, often leads to damaging behavior and STDs and early 

teen pregnancies. It’s a problem. Even without the science, which 

overwhelmingly concurs, parental instinct and basic common sense 

tell us to shield our kids from graphic sex and violence on TVs and 

movies. 

I’m not an expert on copyright issues, and nor does my organization take any kind of a position, except to say that stealing is 

wrong, and parents need to teach their children to respect other 

people’s property. On the other hand, I don’t believe that the entertainment industry should try to keep helpful technology, such as 

ClearPlay, from parents. 

As a parent I welcome all technology that gives parents options 

to protect their kids, and I even challenge the entertainment industry to work with technology leaders, families and parents groups, 

to develop even more market-based approaches. 

Ultimately I think this will help the industry by opening up new 

markets, and I’ll give you an example of how from my own experience. As I mentioned earlier, I’m the mother of two young children, 

and my son loves Spiderman. I was shopping recently in Target, 

with about, you know, 200 other women just like me, walking 

through the aisle, and I came across a kiosk with the Spiderman 

DVD. In fact I have it here today. Now, at that time I did not purchase it. I paused in front of the kiosk. I toyed with buying it. I 

wanted to get it for him because he loves it so much. He’s so interested in super heroes, and I wanted to buy it. But ultimately I 

walked away. I didn’t purchase it because it’s too violent for him, 

it’s too dark. He could not see it. 

Fast forward a week or two. I went out and purchased a DVD 

player with the ClearPlay technology. I also purchased at the same 

time the Spiderman DVD, and I brought it home, I hooked it up, 

with some help from my husband, actually. [Laughter.] 

I was able to choose to filter, out of 14 different categories, that 

I could choose from and decide what was appropriate for my children and what was not. 

I have included in my testimony all of the categories, but the 

main areas were violence, language, sex and nudity, and even drug 

use. Using all of the filters I screened the DVD, and now I feel 

comfortable with allowing my children to view at least part of it. 

I mean it’s a dark movie, so a little bit goes a long way, but now 

they can see it, and I bought it because now I am confident. 

Without ClearPlay I would not have purchased the DVD. What 

a great tool to help me to protect my kids. And I hear this, you 

know, from moms as I do call-in, you know, talk radio shows, callers call in. Just from my own experience as a soccer mom, one of 

72

the top concerns of American women is how do we protect our children from being inundated with scenes of graphic violence and sex 

and language. How do we protect our kids? 

So we are thrilled to have any kind of new technology that helps 

us. We can’t put them in a bubble. They live in the world that we 

live in. There’s lot of images every day that they’re inundated with. 

Now, not all movies are appropriate for kids, and again, parents 

still have to use discretion, but it’s just great to have one more tool. 

New technology is so valuable to us as a country, but with it comes 

challenges and responsibilities. I always tell parents that they 

must be the first line of defense and remain vigilant against all 

threats. ClearPlay or any other technology is simply a tool and not 

a substitute for parental oversight. If there’s a question, I still 

watch the movie first to make sure the material is age appropriate 

even with the filtering system. Even as adults it’s important to be 

cognizant of what we feed our minds. There are certainly DVDs I’ll 

feel more comfortable buying now or renting for my husband and 

I with the use of ClearPlay. 

There’s a biblical proverb that says: As a man thinks in his 

heart, so is he. And the secular version is: garbage in, garbage out. 

So it’s good for all of us. 

In closing, the Kids First Coalition is grateful for new technologies like ClearPlay that support parents and protect kids. 

Thank you for allowing me to testify before you today with just 

such a great group of people here. 

[The prepared statement of Ms. Nance follows:]

PREPARED STATEMENT OF PENNY YOUNG NANCE

Hello, my name is Penny Nance and I am the President of Kids First Coalition, 

which is a non-profit educational and advocacy group I founded with the goal of protecting children and advancing pro-family legislation. I sit before you not only as 

a pro-family advocate but also a very concerned mother of two young children. 

Today, I am here to represent the members of my organization, (mostly moms 

who have downgraded professional careers to raise kids) as well as the countless 

parents in this country who seek to protect their children from graphic sexual images and violence which unmistakably damage children. 

The Kaiser Family Foundation contends that about 95% of American children 

ages 0–6 live in homes with a VCR or DVD player. They say that these kids watch 

a DVD or video about 40 minutes per day. We of course all know that not everything viewed by these kids is age appropriate. 

Recent studies by the American Psychological Association and the American Academy of Child and Adolescent Psychiatry both say that the major effects of seeing 

violence on TV or movies are:

• Children may become less sensitive to the pain and suffering of others

• Children may be more fearful of the world around them

• Children may be more likely to behave in aggressive or harmful ways toward 

others

On the issue of a child’s exposure to the viewing of graphic sex, Donna Rice 

Hughes’ organization Enough is Enough has found that kids exposed to the viewing 

of graphic sex scenes begin to view sex without responsibility as acceptable and desirable. No big surprise, these attitudes can often lead to teen pregnancy and sexually transmitted diseases. 

Even without the science, which overwhelmingly concurs, parental instinct and 

basic common sense tell us to shield our kids from graphic sex and violence on TV 

and movies. 

I am not an expert on copyright issues nor does my organization take a position 

except to say that stealing is wrong and parents need to teach children to respect 

other people’s property. On the other hand, I do not believe that the entertainment 

industry should try to keep helpful technology such as ClearPlay from parents. As 

73

a parent I welcome all technologies that give parents options to protect their kids. 

I even challenge the entertainment industry to work with technology leaders, families and parents groups to develop even more market based solutions. Ultimately, 

I think this will help the industry by opening up new markets. I will give you an 

example of how. 

As I mentioned earlier, I am the mother of two young children. My son loves 

Spiderman. A couple of weeks ago I was shopping in Target and I paused in front 

of the Spiderman DVD. I toyed with buying the DVD but I decided against it because it is just too violent for him. Last week, I bought a new DVD player with 

ClearPlay and a Spiderman DVD. After hooking up the new DVD player I was able 

to specifically choose to filter out fourteen categories of material and then password 

protect my choices. I have included all the categories with my written testimony but 

the main areas were violence, language, sex and nudity and illicit drug use. 

Using all the filters, I screened the DVD and now I feel comfortable allowing my 

children to view at least part of the movie. Without ClearPlay, I would have not 

purchased the DVD. What a great tool to help me protect my kids. Of course even 

with this new technology, not all movies are appropriate for kids. Again, parents 

still need to use discretion but its great to have one more tool. 

New technology is so valuable to us as a country, but with it comes new challenges and responsibilities. I always tell parents that they must be the first line of 

defense and remain vigilant against all threats. ClearPlay or any other technology 

is simply a tool not a substitute for parental oversight. If there is a question, I still 

watch the movie first to make sure the material is age appropriate even with the 

filter system. Even as adults it’s important to be cognizant of what we feed our 

minds. There are certainly DVD’s I will feel more comfortable buying or renting for 

my husband and I with the use of ClearPlay. There is a biblical proverb that says, 

‘‘as a man thinks in his heart so is he.’’ The secular version of that saying is garbage 

in garbage out. 

In closing, the Kids First Coalition is grateful for new technologies like Clear Play 

that support parents and protect kids. Thank you for allowing me to testify before 

you today. 

ClearPlay Filter Settings

There are 14 different ClearPlay Filter settings. Each of these settings can be 

turned on or off. This allows for over 16,000 potential user configurations.

1. Strong Action Violence: Filters excessive or repeated violence, including fantasy violence.

• Strong Fantasy/Creature Violence

• Sustained/Repetitive Violent Actions

• Crude Comic Violence

2. Gory/Brutal Violence: Filters brutal and graphic violent scenes.

• Fierce, Brutal Violence

• Graphic/Bloody Violence

• Rape/Rape Scene

• Torture

3. Disturbing Images: Filters gruesome and other disturbing images.

• Macabre Images, Dead/Decomposing Bodies

• Bloody/Horror Imagery

• Gruesome/Disturbing Imagery

4. Sensual Content: Filters highly suggestive and provocative situations and dialogue.

• Highly Sensual Dialogue and Situations

• Highly Provocative and Revealing Clothing

• Highly Provocative Innuendo

5. Crude Sexual Content: Filters crude sexual language and gestures.

• Overt Crude Sexual Language

• Overt Crude Sexual Actions or Gestures

• Crude Sexual Slang or Idiomatic Expressions

6. Nudity: Filters nudity, including partial and risque ́ art nudity.

74

• Rear Nudity

• Topless/Front Nudity

• Partial Nudity/Veiled Nudity

• Nude Photos/Art

7. Explicit Sexual Situation: Filters explicit sexual dialogue, sound and activity.

• Sex Scenes

• Sex Related Sounds

• Sexually Explicit Actions/Images/Dialogue

8. Vain Reference to Deity: Filters vain or irreverent references to God or a 

deity.

9. Crude Language and Humor: Filters crude language and bodily humor.

• Crude Scatological Word/Sound

• Crude Scatological Image

10. Ethnic and Social Slurs: Filters ethnically or socially offensive insults.

• Racial Slurs

• Social Slurs

11. Cursing: Filters profane uses of hell and damn.

12. Strong Profanity: Filters swearing and strong profanities.

13. Graphic Vulgarity: Filters harsh and vulgar words and phrases.

14. Explicit Drug Use: Filters vivid scenes of illegal drug use.

• Drugs being used in a vivid/graphic manner.

Mr. SMITH. Thank you. 

Ms. Peters, let me direct my first question to you. You said in 

your written testimony, ‘‘I believe that, on balance, parents and 

other consumers should be able to purchase products that allow 

them to mute and skip past audio and visual content of motion pictures that they believe is objectionable.’’ And you said that, ‘‘It 

seems reasonably clear that such conduct is not prohibited under 

existing law.’’ And in your oral testimony a few minutes ago, you 

were less than, say, absolute in your feeling that this is legal. You 

mentioned authorities, in fact, on the other side. 

My question for you is, yes, we do have a court case in Colorado; 

we know how you think it is going to rule. But we really do not 

know how other courts across the country might rule, and there is 

such a thing as forum shopping. You have Members of Congress, 

including at least one individual here today, who is opposed. So 

there is opposition. There are other individuals, including panelists, who feel that copyright law is being infringed. 

Why, then, shouldn’t we inject some certainty into the equation 

and pass legislation so that there is not this uncertainty and so 

that you have more confidence in your statement as well? 

Ms. PETERS. I do have confidence in my statement. Obviously, 

people see things differently, and I have spent the better part of 

the last 2 weeks asking many academics and people in the copyright industries how they perceived this issue. 

I believe very strongly that the view I expressed is, in fact, the 

correct view, and I think that is the view that the court is going 

to reach. So——

Mr. SMITH. Well, I hope you are right, but you cannot guarantee 

that any court where a suit is brought——

Ms. PETERS. I can never guarantee any court will ever do anything that I think is right. 

75

Mr. SMITH. And that is my point. I think that is a good reason 

for the legislation, but thank you. 

Dr. Etzioni and Ms. Nance, both of you all came to the same conclusion, though from different perspectives. Dr. Etzioni’s was more 

of an analytical approach. Ms. Nance, you are the only mother 

present, and that was a personal approach. But your conclusion 

was that children are harmed. More specifically—Dr. Etzioni, let’s 

begin with you—how are children harmed by this culture issue of 

violence? 

Mr. ETZIONI. Well, you choose the social science measure, if it is 

more a predisposition to crime, more likely to act out aggressively 

in school, doing less well on academic tests. You choose the measurement, and there is a strong correlation, like also to science studies. We could spend a week arguing about chi squares and such. 

But at the end of the day, every time—there have been done what 

we call mega-reviews that has summarized the study of the 1,100 

relevant studies—we come to the same conclusion. There is a 

strong correlation between exposure and antisocial behavior. 

I would very briefly mention one study because it is particularly 

telling. There were three Canadian villages who were behind a 

mountain at an earlier age before we had cable and all that. And, 

therefore, they could not get a TV signal. Then, finally, they were 

‘‘blessed’’ and they got TV signal. There was a significant rise in 

crime in the months and year that followed, but all the other villages stayed at the same level. This is just one of the many studies. 

Mr. Chairman, if you will allow me one other comment, as to the 

notion which was just explored that the bill may be in some way 

redundant, let me say it is very important for Congress to express 

its values even if it is redundant, especially given that previous 

bills which dealt not directly with this technology but this issue, 

like CIPA and COPA, did not cover violence. Their only concern is 

pornography, which the evidence is there, but not nearly as compelling as violence. So I congratulate you on helping us have a technology which will also protect our children from violence. 

Mr. SMITH. Okay. Thank you, Dr. Etzioni. 

Ms. Nance? 

Ms. NANCE. Well, Mr. Chairman, many of you will remember, 

some of you have small children, but children are basically 

sponges. They absorb so much more than we do. They are taught 

by so many different sources than just parents. We as parents wish 

that we were the only place that they took information from, but 

that’s not the case. And we know from just, you know, our daily 

interactions with our kids that they’re very affected by what they 

view, what they watch. 

I read something that Parents Television Council put out not too 

long ago about some interviews and a study they had done with 

teachers, and they noticed—these parents—or, excuse me, these 

teachers had noticed on the playground that on Monday morning, 

or whatever day it was, that the kids were particularly violent— fighting, kicking. You know, it seemed like this one day of the week 

they had more problems than any other time. 

They started digging and trying to decide, you know, what was 

the problem, what was happening. They discovered that on this 

particular night before school they were watching WWF 

76

Smackdown, which is Worldwide Wrestling Federation 

Smackdown. It was the violent images were affecting their behavior directly the next day. 

That’s not shocking. Moms know that. And my own child, you 

know, we don’t even have cable in our house. That’s how careful 

I am. My child was watching a show on Saturday morning, and I 

noticed—you know, she’s only 7, but she was using very sort of 

teenager slang to me and being slightly disrespectful. And I suddenly put two and two together. She was imitating what she was 

hearing these older kids say. 

What they watch affects them deeply. 

Mr. SMITH. Thank you, Ms. Nance. 

Without objection, I’m going to recognize myself for an additional 

30 seconds, and that’s to ask Mr. Valenti a question. Mr. Valenti, 

your testimony expressed some concern about the commercialization of these movies that might have been filtered. I am hoping to 

reassure you, in our legislation we explicitly say that it is for private home viewing, we use one phrase, and private use as well. We 

do not endorse nor contemplate the sale or commercialization of 

movies that have been filtered. We’re talking about private home, 

individual parent and child-parent relationship. Is that reassuring 

to you that we’re keeping it within those confines? 

Mr. VALENTI. I wish I could say yes, but the answer is no, because ClearPlay is a commercial company. It’s selling this, and I 

guess it hopes to increase its sales exponentially over the years. 

So——

Mr. SMITH. But, actually, the sales of movies might increase as 

well if families were reassured by the content not being offensive. 

Mr. VALENTI. I’m not going to quarrel with that because the family must purchase, so it’s not a question of loss of revenue. But I 

think of something just as valuable. It’s the loss of creative integrity; it’s the loss of dramatic narrative. It’s somebody, as I said earlier, that works a year, 2, 3 years on a project, a movie, and then 

have it disfigured in a way that is contrary and despoiling of the 

creative vision of not only the director and his creative team but 

the copyright owner as well. 

Mr. SMITH. Okay. As you said, this is one of the few times where 

we disagree, but I thank you for your comment. 

Mr. VALENTI. Thank you. 

Mr. SMITH. My time has expired, and the gentleman from California is recognized. 

Mr. BERMAN. Thank you very much, Mr. Chairman. 

First, I want to differentiate—I want to just not take exception, 

but your conclusion about my position, the notion that I would 

have an informed opinion about whether ClearPlay’s technology 

violates copyright law gives me a level of credit for knowledge that 

I do not deserve. I have no idea—I mean, I’m interested in the different arguments. I think we have a court that’s going to make 

that decision. I am interested in the Register’s opinion of the issue, 

and I’d like to ask Ms. Peters just a couple of questions. 

The bill essentially says copyright law isn’t violated in the making of limited portions of audio or video content of a motion picture 

impresentable—imperceptible by or for the owner of an authorized 

copy of that motion picture. So that would be Ms. Nance in her 

77

1See letter dated July 6, 2004, in the Appendix, p. 89, from the Honorable Marybeth Peters, 

for clarification of answer to question posed by Subcommittee Member. 

home, the owner of an authorized copy, showing it in her home 

using this filtering technology to make the scenes that she wants 

to help keep her child from seeing imperceptible. 

If the maker of the film in selling the DVD or the videocassette 

or the digital transmission makes as a matter of contract law a 

limitation that says you are not authorized to filter out frames that 

you don’t like, under this bill as written now would the owner of 

this copy be allowed to use this filtering technology? 

Ms. PETERS. My understanding, at least at present, is that where 

there are exceptions in copyright law, they do not trump contractual provisions. 

Mr. BERMAN. That’s right. 

Ms. PETERS. And, therefore, the issue is whether or not it’s a contract of adhesion that would not be basically upheld. So—but my 

guess is that the answer would be that the contract, if it wasn’t a 

contract of adhesion, would have to be honored. 

There’s a separate issue with regard to enforcement, because the 

truth of the matter is that would only apply to the purchaser of the 

DVD, not to ClearPlay. 

Mr. BERMAN. So the irony is that if it is not a contract of adhesion, if it’s clear and done in a way to make sure that it avoids that 

particular problem, your view of existing law would give the parent 

freer reign under the present system than this bill, if enacted as 

it’s presently written, would provide for the case where a contract 

would trump. 

Ms. PETERS. Maybe yes.1

Mr. BERMAN. All right. Dr. Etzioni talks about—and, I mean, I 

think this is a very important issue, this question of—I don’t know 

the answer to it. I hear his study of the three Canadian villages. 

I also am told that no place in the world is the level of violence 

in videos greater than in Japan, a country with a substantially 

lower rate of violent crimes than the United States. I mean—I 

mean, people agree or disagree, and I truly, just like I can’t—I 

wouldn’t pretend to know just how copyright law should be interpreted. I wouldn’t pretend to fundamentally know what the answer 

to this question is, but I think it’s certainly a legitimate area. But 

I would like to ask Dr. Etzioni how—what he thinks of somebody 

who developed a filtering technology that took any of his many articles or 24 books and, without his consent, eliminated a variety of 

different positions in those books, and then through that filtering 

technology allowed people to read something very different than he 

wrote or consented to. 

Mr. ETZIONI. On the first point, Congressman Berman, without 

going into Japan and Indonesia and all the other variations—— Mr. BERMAN. Canada is okay but Japan is not? 

Mr. ETZIONI. No, I am happy to go country by country, but I 

want to suggest a shortcut. If you’re willing to rest the case on any 

panel of social science—the National Academy of Science, the 

American Association of Psychiatry—you choose the panel who reviewed these data, and you’re willing to abide not by my or somebody else’s summary but by the six panels of experts, this bill will 

78

be welcomed by all of them because there have been endless reviews of the literature. And you’re right, there’s a study here that 

shows that when they’re all put together, they leave no doubt. 

Mr. BERMAN. All right. Well, I think there’s a case to be made, 

and that’s why we have ratings, and Mr. Valenti is responsible for 

that rating system. That’s why we generally agree that parents 

should keep their kids from seeing certain things, certain movies, 

reading—certain video games, certain books at a particular point 

in life. 

What about my second question? 

Mr. ETZIONI. Right. Anytime you find in any of my books anything which would be offensive or hurtful or harmful to children, 

please tear out that page. And I’ll provide the scissors. There is no 

question that we’re not talking about disfiguring anything. That 

movie is the same. It is not changed one iota after children be protected from its scenes. 

There is no parent alive who will think that everything we allow 

adults to view should be also exposed to minor children. 

Mr. BERMAN. But the bill——

Mr. SMITH. The gentleman is recognized for an additional 

minute. 

Mr. BERMAN. Thank you. The bill you are embracing, I mean, 

you made a comment—and I congratulate you, Mr. Chairman, for 

not just including—allowing filtering out of pornographic scenes 

but of violent scenes. This bill doesn’t talk about pornography and 

violence. It talks about filtering anything that the designer of the 

software wants to provide a filter for and then the parent chooses, 

including some of the scenes that you resent that I referenced. 

That’s your right. But the bill is totally neutral on the issue of 

what things ClearPlay can design filters for, not pornography and 

violence but anything. You can design it to enhance the level of violence by eliminating the non-violent scenes and the non-pornographic scenes. You can distort this any way you want as you improve this technology. 

Mr. ETZIONI. Your distortion is my protection of my children. But 

I’m delighted to hear that it can be used for other purposes. If I’m 

a devout religious person and there’s a movie which my children 

are asked to view for school next week, and I believe that most of 

it is of great merit but there is some scene that offends my religion, 

I’d very much like to have a technology to protect them from it up 

to a certain age, say up to age 12, we can argue. And so the fact 

that it allows additional filtering is extremely welcome. 

Mr. SMITH. Thank you, Mr. Berman. 

The gentleman from California, Mr. Keller, is recognized for his 

questions. 

Mr. KELLER. Thank you, Mr. Chairman. From Florida, but I appreciate that. 

Mr. SMITH. What did I say? 

Mr. KELLER. You said California. 

Mr. SMITH. I’m sorry. I know better. The gentleman from Florida. 

One of those States on the ocean, right. 

Mr. KELLER. A lot of people confuse me for Arnold 

Schwarzenegger with our physiques. It happens all the time. 

[Laughter.] 

79

Listening to this—and I swear on my life that I’m objective here 

and in the middle—it seems to me that there may have been a 

major strategic error in the directors adding ClearPlay to the suit. 

That’s just what it seems like to me, and I’ll tell you why, and I 

certainly think there’s some merit to the suit and I can understand 

why it was filed. There are companies out there who break 

encryption codes, and they change words and they blur nudity and 

they reproduce edited versions of a DVD on another DVD. That 

seems to me a crystal-clear violation of copyright law, and I can understand why that suit was brought. 

But adding ClearPlay, which doesn’t do any of that—and they 

merely sell the consumer a filter which the consumer chooses to 

buy or not buy, and then goes to Blockbuster and puts that in and 

skips over certain objectionable words or scenes, and then sends 

back to Blockbuster the movie in the exact same condition—is all 

that ClearPlay does here. 

And when I hear that, well, we shouldn’t act and just let the parties negotiate, I can certainly understand that, you know, you have 

the Register of Copyright Office saying ClearPlay is not doing anything wrong and that’s all they’re doing, yet this company has been 

in a suit for 2 years, had to spend over $1 million. Summary judgment has been pending for 6 months, and we know after that that 

at the end of it, whoever loses is going to go up on appeal, and 

there’s going to be millions and millions of more dollars. And that’s 

a lot to ask a small company who most folks think are not doing 

much wrong. 

Again, I’m not trashing the suit. There’s a good reason for the 

suit with these other folks. But I’m wondering—let me start with 

Mr. Valenti—if that’s essentially the case, is there any hurt at all 

to the financial bottom line of the movie companies based on the 

technology filters that ClearPlay is selling? 

Mr. VALENTI. I don’t know about what financial losses or gains 

are there because this is a new technology. I don’t think it—it’s had 

only a minuscule entry into the marketplace to this hour. 

Mr. KELLER. Okay, because from what I hear, there are different 

objections raised by your side, and I say ‘‘your side,’’ the studios 

and directors collectively. The financial one doesn’t seem to have 

much merit to me at this point. The one that seems to carry weight 

is, hey, I’m Steven Spielberg, and I directed this ‘‘Jaws’’ movie, and 

I don’t want you taking out this scene with Jaws coming onboard, 

and that’s a critical part of the movie. That makes some sense to 

me, and I’m sympathetic to that. But the financial side, I haven’t 

seen the testimony in two hearings to support that. 

Ms. Peters, did I characterize your testimony about accurately 

there? 

Ms. PETERS. Yes, you did. 

Mr. KELLER. Okay. And you’re the one who said what you said, 

but yet you still feel we should wait because what they’re not doing 

is not illegal in your view. Can you understand in light of the resources of this little company being depleted, which it looks like, 

at least in some people’s mind, like they’re not doing anything 

wrong but they may not have years and years to go, you know, paying over $1 million a pop to defend this litigation. 

80

Ms. PETERS. I understand, I do understand that concern. But 

that’s true for all small companies and start-up businesses. So the 

question is: You as policymakers, at what point do you step in to 

put an end to the problem? For me, it’s very difficult here because 

the court has not even ruled on—at this moment, I understand 

that there may be a cloud and there may be the appeal hanging. 

But there is no injunction out there stopping them from doing this. 

I think the law—that it will come out that it will deny summary 

judgment because they have not embodied any of the audiovisual 

content of the motion picture. It’s software that operates to bring 

about a certain result. But it doesn’t violate the derivative work 

right as it exists today. And as I said, my big fear about legislation 

is unintended consequences. I have no problem with this particular 

scenario. I do have problems with a lot of the scenarios that Mr. 

Berman suggested. And I do very strongly believe in the integrity 

of the final product that is the result of the creators being totally 

distorted. And I’m worried as a—working in a library, about what 

is history. So I have real reluctance to go jumping in with legislation now. 

Now, maybe you can craft a bill that is narrow enough. I do 

think that technology is going to cause huge issues for the future, 

and I think one of them is going to be on whether or not you need 

fixation in order to have a violation of the derivative work right. 

And I would like the Copyright Office to look into that. 

Mr. KELLER. Okay. Thank you. 

Mr. Chairman, I yield back. 

Mr. SMITH. Thank you, Mr. Keller. 

The gentlewoman from California, Ms. Waters, is recognized for 

questions. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

I’d like to thank our panelists for being here today, and I would 

like to just reiterate probably what has been said over and over 

again, that we’re all very much concerned about our children and 

what they have access to and the impact that movies have on our 

children. And no matter what our approaches are, we all share that 

same very basic concern. 

Mr. Chairman and Members, I’m very concerned at this point 

about whether or not the hearings that we’re holding are timely or 

whether or not this hearing or the possibility of legislation like this 

bill can be used as a club to influence settlement negotiations between the movie studios and ClearPlay in the Federal court litigation pending. 

Mr. Valenti, you referred to this, you alluded to this, I think, in 

your statement. Could you expand on this a bit and help me to understand whether or not what we’re doing at this particular time 

makes good sense in light of what is going on right now with the 

litigation? 

Mr. VALENTI. Congresswoman Waters, the negotiations have 

been going on for some time. It’s very difficult to negotiate when 

one side believes, as I said in my testimony, that legislation is 

going to favor them and if they just hold on and not make any final 

negotiations, they will get everything they want because of legislation. 

81

Keep in mind also the Directors Guild has made two proposals, 

I have been told, to ClearPlay. At this point, ClearPlay has not 

made any proposals. As a matter of fact, I have been told—and, 

again, I can’t certify this—that they have stiffened their position. 

I believe that the Directors Guild have said that they would have 

license—they would agree to licensing agreements by the copyright 

owners if they took the airline version of a film, which has been 

edited by the director or with his consultation so that he approves 

of what has been done to that movie so it doesn’t destroy the dramatic narrative. That’s what this is about. This can be done. 

Our companies, the seven member companies, are not against 

the proposition of licensing to ClearPlay. It’s doing it on a basis 

that both sides will agree to. I believe if ClearPlay understood that 

this legislation was going to wait for another year, or whatever, I 

think there would be an end to this negotiation, and an end that 

both sides would accept. I truly believe that. 

Ms. WATERS. Thank you, Mr. Valenti, for expanding on that discussion that you initiated in your testimony. And I’d like to direct 

my remarks now to my colleagues and to our Chairman. 

I have come to understand, despite the fact that I’m viewed as 

a liberal or a progressive, that Government can’t solve everything 

and there are times when Government should just hold and allow 

those who are involved in negotiations, certainly in litigation, to 

see what they can get done. I would hope that I am not—no one 

is attempting to use me or this Committee or this Congress to 

threaten or intimidate or to be leveraged in an effort to have their 

way. And I would hope that we would be wise enough to allow the 

negotiations to continue and to say to both parties, you better go 

solve it, that it is not in the best interest of any of us for the Congress to jump in and try to determine the outcome. 

There are a lot of issues at stake here, certainly issues about 

freedom of speech, issues about how we basically decide what is the 

proper direction in protecting our children, and whether or not in 

this atmosphere and environment that we’re in now, where all kind 

of rights are being threatened, whether or not we take advantage 

of this atmosphere at election time and all of that to look as if we 

are better than others because we care more about the children 

than others. I think it’s time for us all to cool out and let the negotiations go forward. 

Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Ms. Waters. 

The gentleman from Virginia, Mr. Forbes, is recognized for questions. 

Mr. FORBES. Thank you, Mr. Chairman, and let me just echo my 

appreciation to all the members of the panel and the Members of 

this Committee for both their questions and comments, and then 

to tell you a ‘‘but,’’ and the ‘‘but’’ is I think most of it is irrelevant, 

and let me just tell you why. I’ve never seen a subject that probably has more red herrings than this one does in my life, and let 

me just lay them out because, like Mr. Keller, I am legitimately 

trying to get to the fundamental issues that we have here. 

On the one side, there are those who will say the legislation 

might put pressure on one side to settle or to do something they 

otherwise would not do. Yet we also have one side saying that the 

82

cost ligation and the delay in the litigation may force one company 

out of business and put pressure on them to settle. 

I hear today testimony that this is not a net loss of revenue; it’s 

about creative integrity. I don’t think there’s anybody in here that 

believes this issue is about ‘‘Schindler’s List.’’ You know, even in 

protecting children, that’s important and I agree with the testimony that’s there. But I think at the core of this legislation are certain fundamental rights in our copyright law. One of them we always support is financial protection for the creators of works. We 

want to do that, but that’s not the issue here. And I think the core 

issue here is more what my rights are as a consumer once I have 

purchased a product. 

You know, let’s go back to a book, because I am legitimately trying to find this out. If I purchase a book, there is no one in here, 

no author in here that’s going to come in and tell me that I don’t 

have the right to go through that book and block out phrases that 

I don’t want to see. 

Now, most of us in here, you’re like me, whether it’s now I’m in 

Congress or before when I was practicing law, I’m going to have 

staff that go through and—that I hire to go through and block out 

those phrases if I don’t want to read them or I don’t want to see 

them. Technology has moved us another step. Most of the time 

now, instead of holding a book in my hand, I have a computer disk 

that I put into the computer, and I may block out phrases. 

But let me flip it around the other way. Suppose instead of blocking out phrases, my question is that I only want to read certain 

things. Let me give you an example. I just got back from Normandy 

and read a number of books on Normandy. And I might want to 

only read about the 29th Division at Normandy. Nobody in here 

tells me that if I want to read Steven Ambrose’s book about D-Day 

that I’ve got to read the whole book. I can just say to my staff 

member or anybody else, ‘‘I only want to read the sections about 

the 29th Division.’’ Give me 20 books, have a computer program 

that picks out for me everything about the 29th Division. That’s all 

I want to see. I don’t care—you know, the author may tell me, 

‘‘You’ve got to read the whole thing, the whole book to get the 

whole flavor of what I wanted to communicate.’’ But I think my 

right as a consumer is that I don’t have to do that. I can just say, 

‘‘No, I want to read about the 29th Division.’’

And so I guess my wrestling with this is it looks like to me that’s 

the core of this issue. It is whether or not as a consumer in my 

home I can buy a product that doesn’t, as Mr. Keller says, transform or change the original creative right, but does the author of 

that work have the creative integrity, ability, right to mandate that 

I’ve got to read everything in there? It may not be that I have objections to it because of religious reasons or anything else. I might 

just not have the time. But I ought to have the ability—or the interest. But I ought to have the ability, it would seem to me, to be 

able to say I don’t want to see this and I want to see something 

else. 

And so my question to the panel is: Why shouldn’t I have that 

fundamental core right as a consumer to either say give me all of 

the 29th Division clips from a movie that I want to find or, reverse, 

take out all the sexual items in that movie? Why don’t I as a conVerDate 0ct 09 2002 11:58 Aug 05, 2004 Jkt 089266 PO 00000 Frm 00086 Fmt 6633 Sfmt 6601 G:\WORK\COURTS\061704\94286.000 HJUD1 PsN: 94286
83

sumer have that right? And that’s what this legislation to me is all 

about. That’s the fundamental—— Mr. BERMAN. Would the gentleman yield for a question? 

Mr. FORBES. Sure. 

Mr. BERMAN. I think you’re absolutely right. But should a company be able to market without the consent of Steven Ambrose or 

the authors of those other 29 books a technology that sells excerpts 

of great books on the 29th Division? 

Mr. FORBES. Well, and I’m glad you said that. The answer would 

be, no, they couldn’t market a book that has the excerpts because 

you would be changing and creating a new product. But I believe 

very much, just as I could hire my staff—and, Mr. Chairman, my 

time is out. 

Mr. SMITH. Without objection, the gentleman is recognized for an 

additional minute. 

Mr. FORBES. But just as I could hire my staff to come in and say, 

‘‘I want you to find everything on the 29th Division,’’ I believe they 

could give me a computer program or technology that I could plug 

in that wouldn’t change the original works of art, but it would find 

for me clips about the 29th Division or, the reverse, take out things 

that I didn’t want to see. It’s not changing, and that’s the real essence of this legislation. We’re not talking about changing that 

work and putting a different work. We’re talking about a technology that has outstripped where we were before, that basically 

says this is a way that I can find the scenes or the phrases that 

I want, or I can not have to read the other ones that I don’t want 

to read. I don’t see the difference between the two and——

Mr. BERMAN. Well, would the gentleman yield for one more question? 

Mr. FORBES. If the Chairman will give me the time, I’ll yield. 

Mr. SMITH. You’ve still got the time, Mr. Forbes. 

Mr. BERMAN. It is a way to read portions of 29 books without 

buying them when you get that computer program. 

Mr. FORBES. Well, you’re talking about two different things. If 

you’re talking about stealing copyrighted material, that’s a whole 

different issue. What I’m talking about here is when I have legitimately purchased the material and I walk in—and that’s what 

we’re talking about. We’re not talking about anybody who’s stealing 

one of these movies. They think they should be prosecuted. We’re 

talking about an individual who legitimately purchases the movie 

and walks in but doesn’t way to see everything in it or perhaps 

wants to find certain—suppose—suppose I’m a critic, suppose I just 

want to see certain scenes and see how they were. Why shouldn’t 

I be able to buy technology that’s going to just give me those 

things? 

Mr. BERMAN. Would the gentleman yield? 

Mr. SMITH. The gentleman’s time has expired. 

Mr. FORBES. Thank you. 

Mr. SMITH. The gentleman, the other gentleman from Virginia, 

Mr. Goodlatte, is recognizes for his questions. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. I have a statement I’d ask be made a part of the record, and I want to thank 

you first for holding this hearing and for your leadership in attempting to resolve this issue, because I think it is an issue well 

84

worth resolving, both for the motion picture industry and for consumers. 

I also want to thank you for assembling an incredibly impressive 

panel. Marybeth Peters is well known to this Committee. Dr. 

Etzioni has been around almost as long as Jack Valenti. [Laughter.] 

I read his sociology books when I was in college 30-plus years 

ago. And Ms. Nance and her organization are an important group 

that have worked with the entertainment industry on a number of 

occasions to promote kid-friendly entertainment, and I think that’s 

a valuable asset, both for, again, families and the entertainment industry. 

And, finally, Jack Valenti. I have on a number of occasions enjoyed at Disney-MGM Studio in Florida the Great Movie Ride or 

Great American Movie Ride. No one—no one—has had a greater 

movie ride than Jack Valenti. And I thank you for what you’ve 

done for decades to promote a great industry, and the corollary to 

that has been your championing of intellectual property rights. And 

the work not only in this country but around the world to protect 

them has been very important, not just for the movie industry but 

for establishing the principle that intangible property is every bit 

as important as tangible personal property when we protect those 

rights. So I certainly understand your perspective. 

I also, though, very much understand that parent, because I have 

been in that situation with a child who knows about that latest, 

absolutely most popular movie that’s out there and just demands 

day after day to see it, and you say, Well, you know, I know there’s 

some stuff in there that I’d really not like to have my 7-year-old, 

my 10-year-old, or even my 12-year-old see that movie. But if I had 

the technology to be able to say you can see all of it except for 

these parts, even if it is not the perfect work—and I agree with 

you, it’s not the perfect work when you take those out—that’s a 

concern. 

I also have a concern, on the other hand, dealing with what impact this on the Digital Millennium Copyright Act and the use of 

encryption that the industry has used to protect these materials. 

I was very involved in writing that Act. I know that one of the 

underpinnings of that Act is the prohibition against circumvention 

of copy protection technologies. Some have argued that these anticircumvention measures should be weakened, but I believe that 

these measures are crucial tools to help content owners protect 

their intellectual property from piracy and unauthorized copies. 

So as we work our way through this, I’d like to know, because 

I’m concerned that if movie editing technologies are using copy—

devices to crack copy protection codes to break into a DVD, even 

to edit out certain offensive materials, that creates some concerns 

on my part and a slippery slope. While this legislation does not expressly allow the use of anti-circumvention technologies, it also 

does not expressly prohibit it. And I’d like to know both what the 

implications of that are and from each of you whether that would 

improve the legislation if there was a provision in there that would 

expressly prohibit editing tools that circumvent copy protection 

technologies. 

We will start with Mr. Valenti. 

85

Mr. VALENTI. Copy protection technology, Mr. Goodlatte, is at the 

forefront of how we enter the Digital Age. If we are not able to protect our movies in the Digital Age, we don’t own anything. And, 

therefore, it is literally in the vanguard—and you, I must thank 

you, because you have been a champion of protection. Any piece of 

legislation that allows someone else to circumvent the encryption 

violates the DMCA. And I think that would be a terrible remedy 

to offer in any bill. 

Now, do I think this bill ought to have a specific bar against 

decryption, circumvent encryption? I sure do, but that doesn’t mean 

that I support the bill. 

I think the essence here—and if I may spring from the rostrum 

of your question—— Mr. GOODLATTE. As long as you allow me time to let the other 

three answer the question. 

Mr. VALENTI. Because the short answer is absolutely, we cannot 

allow anyone to circumvent encryption. That is going to be our 

technological salvation in the years to come, and without it, the 

whole world is going to be swarming all over our material. 

But to leap from that rostrum to Congressman Forbes—and I understand where you’re coming from. I understand where Congressman Goodlatte is. I am a father of three children, and I was very 

stern, my wife and I, when our kids were growing up. Even though 

I invented the rating system, I also observed it. And there were 

certain movies I wouldn’t allow my children to see. I don’t believe 

children ought to be able to see every movie they want to see. I 

think every now and then, to coin a phrase, ‘‘Just say no,’’ which 

is what a lot of parents do. If parents have a casual regard for 

what their children see, then there’s no way you’re going to salvage 

that child’s future conduct. 

So I share everything you say, Congressman Forbes. I am with 

you on that. 

Mr. SMITH. The gentleman from Virginia is recognized for an additional minute so the witnesses can respond. 

Mr. GOODLATTE. Thank you, Mr. Valenti. 

Ms. Nance? 

Ms. NANCE. Well, I don’t know that I have a comment necessarily on encryption, but, you know, I just want to—I just want 

to sort of point out here, this is the DVD that I bought. It’s mine. 

I plugged it in, I used it. It didn’t change it. It’s exactly the same 

as I bought it. Even if I wanted to change it, it’s mine once I own 

it. I shouldn’t be stealing it. It belongs to me. 

A couple of other things is there has to be a market for something for you to sell it. And while there’s a huge market out there 

for parents to protect their kids from violence, graphic sex, nudity, 

profanity, there probably isn’t much of a market to do all these 

other things that you’re concerned about. And I understand, I can 

appreciate where you’re coming—— Mr. GOODLATTE. Let me take back my time because I appreciate 

that, but indeed there is a huge market to do all these other things 

were concerned about. It’s called KaZaA, Napster—— Ms. NANCE. Those are stealing, though. 

Mr. GOODLATTE. Right. And we want to make absolutely sure 

that we don’t do anything that would put us——

86

2See letter dated July 6, 2004, in the Appendix, p. 89, from the Honorable Marybeth Peters, 

for clarification of answer to question posed by Subcommittee Member. 

Ms. NANCE. I agree. 

Mr. GOODLATTE.—on a slope toward telling the intellectual property community as a whole, including the motion picture industry, 

that we’re going to have a situation where they begun the process 

of eroding their ability to protect their intellectual property——

Ms. NANCE. I completely agree with you. I’ve fought these peerto-peer sites tooth and nail over pornography. 

Mr. GOODLATTE. Ms. Peters? 

Ms. PETERS. I’m an extremely strong supporter of technologies 

that are used by copyright owners to protect their works. As I understand the technology here, it does not implicate the anti-circumvention provisions. 

Mr. GOODLATTE. That is good. So, in other words, if we were to 

put a provision in here to say that other people attempting to do 

other things could not invade the language of the DMCA, you 

would, A, agree with that and, B, feel that it would not be harming 

companies like ClearPlay to kind of do what they’re doing. 

Ms. PETERS. That’s right.2

Mr. GOODLATTE. Dr. Etzioni? 

Mr. ETZIONI. Thanks for not giving a number to my age. [Laughter.] 

I see no reason these two concerns cannot be reconciled by allowing invasion for this purpose and not for sale or any other purpose, 

not setting a precedent for other violations. 

Let me just add one sentence. Several times we heard about the 

right of the creator of those works as if one right is an absolute 

and trumps all other rights. Ninety-five percent of what we do in 

ethics and much of what we do in law is try to deal with conflicting 

rights. In this case, it’s the right of parents to bring up decent citizens against the right of a creator of a work to insist that children 

will see all of it and not part of it. 

Mr. GOODLATTE. Thank you for your forbearance, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

Let me say to the panelists that several Members have questions 

they would like to submit to you in writing. Particularly Mr. Berman I know has some questions. And if you all can respond to 

those within 2 weeks, we’d appreciate it. 

Further, the gentleman from California is recognized for a 

minute for some observations. 

Mr. BERMAN. I simply didn’t want to be the only person on this 

Subcommittee not to comment on Mr. Valenti’s, Jack’s appearance 

here. I myself, given the time between I first heard of his interest 

in moving on from MPAA to now, I’ve assumed that this will not 

be the last time you would be appearing before our—if the past is 

prologue, we will see you again. But I hope particularly that you 

will understand and know the admiration and warmth I feel for 

you and what you’ve contributed to the industry, to the protection 

of intellectual property, and to my own personal abilities as a legislator here, as well as to the country from your service. 

Mr. VALENTI. Thank you. 

87

Mr. SMITH. Thank you, Mr. Berman, and I thank all the Members for their attendance, and I thank the witnesses for their very, 

very informative and good testimony today. And we stand adjourned. 

[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.] 

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LETTER FROM THE HONORABLE MARYBETH PETERS


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RESPONSES OF MARYBETH PETERS TO POST-HEARING QUESTIONS

FROM REP. HOWARD BERMAN

1. You state that you would prefer not to address the merits of the litigation in Colorado, and have no desire to be drawn into it. Further, you 

admit to a sketchy understanding of the workings of the products that are 

the subject of the litigation. Unfortunately, some litigant is almost sure to 

argue to the court that your testimony represents a definitive opinion on 

the appropriate outcome of the Colorado litigation. Do you think you know 

enough about the facts of the case, the ClearPlay technology, and the other 

technologies involved to definitively state whether the Colorado court 

should find them infringing or non-infringing?

Answer: I do not pretend to know everything there is to know about the ClearPlay 

technology, or even to know what is in the record of the Colorado litigation; therefore, I have no views on how the court should rule on the facts of that particular 

lawsuit. In my testimony, I stated that the conduct that is described in the proposed Family Movie Act is not infringing under current law. If ClearPlay’s technology does something other than that which is described in the legislation, then 

the court might well conclude that it is an infringer.

2. In your written testimony, you describe as ‘‘fairly benign’’ the filtering 

technology we have been discussing, and state your ‘‘conclusion that on 

balance, the conduct that is addressed by the Family Movie Act should not 

be prohibited.’’ However, the filtering technology covered by the bill may 

skip everything but the violence in Gangs of New York, or may cut all references to the Holocaust from a World War II documentary. Do you believe 

such filtering technology is ‘‘fairly benign’’ when put to these uses? If not, 

why do you believe that, on balance, such filtering technology should be 

legal?

Answer: When I characterized the technology involved in one the this legislation as 

‘‘fairly benign,’’ I probably should have referred to the particular application of 

that technology that the legislation is intended to address, rather than to the 

technology itself. I do not believe that all of the uses permitted by the bill would 

be benign, and I certainly do not believe that the conduct you have described is 

benign. Certainly a technology that permits deletion of portions of a motion picture could be used in ways that no reasonable person could condone. That is one 

of the reasons why I oppose the legislation. However, I am not persuaded that 

use of such technology in such a fashion is unlawful under current law, and I 

would hesitate to say that it should be unlawful, since I do not believe the law 

should ordinarily discriminate among applications of technology based on the message that the person using the technology wishes to convey.

3. You say one reason you are comfortable with the conclusion that movie 

filtering technology should be legal is because ‘‘it is difficult to imagine any 

economic harm to the copyright owner.’’ I don’t have the same difficulty. 

If there is a market for movie filters, that means consumers are willing to 

pay something above and beyond the cost of a DVD for a sanitized version 

of the movie. Isn’t the copyright holder, who has the exclusive right to reproduce and distribute sanitized versions, suffering economic harm when 

a filtering company captures that additional revenue?

Answer: Not unless that revenue is revenue that the copyright holder would have 

a reasonable expectation of capturing, and it does not appear that the motion picture studios currently have any intention to exploit the market for ‘‘sanitized’’

versions of their motion pictures. If motion picture studios do begin to offer such 

versions, then the case could well be made that the offering of filtering products 

is causing economic harm to the copyright owners. That is one of the reasons why 

I believe that if the Family Movie Act is enacted, it should include a sunset provision so that Congress can reevaluate the need for the legislation in a few years. 

One of the factors that Congress should evaluate at the time would be whether 

motion picture studios have begun to offer or license such versions of their motion 

pictures. Also, keep in mind that my interpretation of both current law and the 

bill preserves the copyright owner’s exclusive rights over fixed copies of altered 

works, and the distribution of such copies may be a more convenient and successful business model for the consumer to obtain and enjoy such versions than the 

marketing of filtering software.

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

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

Mr. Chairman, 

I must express my opposition to the legislation before us today. Perhaps this hearing will convert me, but I doubt it. I have too many concerns about the nature and 

implications of this bill. Clever redrafting might address some of these concerns, but 

nothing can address my concerns about its basic premise. 

While I believe parents should be able to protect their children from exposure to 

media they find offensive, I don’t believe the legislation before us today will advance 

this goal. In some ways, it may have the opposite effect. 

This legislation sends the wrong message to parents; namely, that technology can 

fulfill parental responsibilities. In our modern world, parents cannot control what 

their kids see and hear every minute of the day. Parents must, as Professor Heins 

testified on May 20, equip their children for exposure to offensive media, not just 

turn on the TV or movie filter and leave the room. Technology should not become 

an excuse for avoiding the hard work of parenting. 

To be clear, I don’t oppose the ClearPlay technology itself. Rather, I am opposed 

to legislation that benefits one particular business over its competitors, and abrogates the rights of copyright owners and trademark holders in the process. The marketplace is the proper forum for resolving this business dispute, not Congress. Congress should focus on encouraging the relevant copyright owners and trademark 

holders to work out a licensing deal for ClearPlay technology, not roil the waters 

with legislation that verges on a bill of attainder. 

Unfortunately, the legislative activity on this issue appears to have already hampered the industry negotiations. I understand that, following the May 20 hearing, 

ClearPlay presented new demands that represented a significant departure from its 

previous position in the negotiations. In other words, the positions of the parties, 

which had been fairly close before the May 20 hearing, are getting farther apart as 

the prospects for legislation improve. 

Since neither ClearPlay nor any of its competitors has been found liable for copyright or trademark infringement, this legislation addresses a hypothetical problem. 

While a federal District Court has before it a case raising these issues, it has not 

yet issued even a preliminary ruling. Furthermore, the Register of Copyright will 

apparently testify that ClearPlay is likely to succeed. In other words, there is no 

problem for Congress to correct. While legislation addressing hypothetical problems—like the law protecting fast food restaurants against obesity liability—is all 

the rage these days, it is not a trend with which I agree. 

Most importantly, Congress should not give companies the right to alter, distort, 

and mutilate creative works, or to sell otherwise-infringing products that do functionally the same thing. Such legislation is an affront to the artistic freedom of creators, and violates fundamental copyright and trademark principles. 

The sanitization of movies allowed by this legislation may result in the cutting 

of critically important scenes. For instance, the legislation legalizes the decision of 

a ClearPlay competitor to edit the nude scenes from Schindler’s List—scenes critical 

to conveying the debasement and dehumanization suffered by concentration camp 

prisoners. 

Further, a close reading of the bill reveals that it will also legalize editing that 

makes movies more offensive, more violent, and more sexual. Just as the legislation 

allows nudity to be edited out, it allows everything but nudity to be edited out. For 

instance, the legislation allows some enterprising pornographer to offer a filter that 

edits the movie Caligula down to its few, highly pornographic scenes, and endlessly 

loops these scenes in slow-motion. The legislation would also appear to legalize filters that make imperceptible the clothes of all actors in a movie. Do the bill sponsors really want to legalize all-nude versions of Oklahoma and Superman? 

The types of edits legalized by this bill are limited only by editorial imagination. 

Anti-tobacco groups could offer a filter that strips all movies of scenes depicting tobacco use. Racists might strip Jungle Fever of scenes showing interracial romance 

between Wesley Snipes and Annabella Sciorra [SKEE-ORA], perhaps leaving only 

those scenes depicting interracial conflict. Holocaust revisionists could strip World 

War II documentaries of concentration camp footage. Fahrenheit 911 could be filtered free of scenes linking the Houses of Bush and Fahd. 

Since the bill also applies to television programming, a number of troubling consequences may result. Digital Video Recorder services like TiVo, which enable their 

subscribers to digitally record TV shows for time-shifting purposes, might offer filters geared to those programs. This is not far-fetched: at least one DVR service has 

already tried to filter out all commercials. In the future, they might offer filters that 

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cleanse news stories of offensive content; for instance, by editing out comments critical of a beloved politician. In fact, under the bill the DVR service could unilaterally 

engage these filters without the permission of the TV viewer, and thus might choose 

to filter out stories helpful to a corporate competitor or critical of a corporate parent. 

I know that these outcomes are opposite to the intent of the bill’s sponsors, but 

they are the unavoidable outcomes nonetheless. And these are just a few of the 

problems that are apparent after just two days’ reflection. Thus, I hope the Subcommittee will not rush to legislate in this area, and instead will allow the marketplace to address the legitimate concerns of parents. 

I yield back the balance of my time. 

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

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

ON THE JUDICIARY

At the outset, I am embarrassed we are even considering this bill. The Republicans 

know full well that the directors and ClearPlay are engaged in settlement negotiations to resolve a lawsuit over copyrights; they are using this bill and this second 

hearing to pressure the directors and help the other side. 

In my tenure in Congress, this is only the second time I can remember having 

a one-sided hearing involving on-going settlement talks; not surprisingly, the first 

was a few weeks ago on the same issue. Our hearings should be reserved for public 

policy debates, not for strong-arming private litigants. 

It is more troubling considering that we are here to continue the Republican assault on the First Amendment and media content. In the past few months, we’ve 

seen Republican overreaction to a televised Superbowl stunt and to radio broadcasts. Now the self-proclaimed moral majority is turning to movies. 

Censoring filmmakers would diminish the nature of this medium. Let us not forget that Schindler’s List was on broadcast television completely uncut. The movie 

studio and the broadcasters knew the film could not convey its feeling and authenticity if it was edited. Despite this, the movie has been edited by censors to diminish 

the atrocities of the Nazi party. Traffic, an acclaimed anti-drug movie, has been 

edited in a way that makes drug use appear glamorous. 

This is not to say that movie fans should be forced to watch the latest Quentin 

Tarantino movie. People looking for family-friendly fare have countless choices. Parents are inundated with commercials for the latest children’s movies. Hollywood has 

its own ratings system that tells parents which movies are suitable for children and, 

over the past several years, has increased its output of G- and PG-rated films. 

Newspaper reviewers make specific mention of family-friendly films. Finally, organizations like Focus on the Family provide information on movies for parents who 

seek it. In short, there are options. 

At the hearing on this bill, we heard our colleagues Rep. Randy Forbes (R-VA) 

and Rep. John Carter (R-TX) say the government has no business in this issue. The 

last time I checked, Congress was a part of the government. Having said that, there 

is a simple solution to this problem. It is a market-based solution that conservatives 

should like. If a family finds a particular DVD offensive, it should not buy it.

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