29–006 

108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–670 

FAMILY MOVIE ACT OF 2004 

SEPTEMBER 8, 2004.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4586] 

[Including cost estimate of the Congressional Budget Office] 

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

(H.R. 4586) to provide that making limited portions of audio or 

video content of motion pictures imperceptible by or for the owner 

or other lawful possessor of an authorized copy of that motion picture for private home viewing, and the use of technology therefor, 

is not an infringement of copyright or of any right under the Trademark Act of 1946, having considered the same, reports favorably 

thereon with an amendment and recommends that the bill as 

amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

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

Background and Need for the Legislation ............................................................. 3 

Hearings ................................................................................................................... 4 

Committee Consideration ........................................................................................ 4 

Vote of the Committee ............................................................................................. 4 

Committee Oversight Findings ............................................................................... 5 

New Budget Authority and Tax Expenditures ...................................................... 5 

Congressional Budget Office Cost Estimate .......................................................... 5 

Performance Goals and Objectives ......................................................................... 7 

Constitutional Authority Statement ...................................................................... 7 

Section-by-Section Analysis and Discussion .......................................................... 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 7 

2 

Markup Transcript .................................................................................................. 9 

Dissenting Views ..................................................................................................... 41 

THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Family Movie Act of 2004’’. 

SEC. 2. EXEMPTION FROM COPYRIGHT INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO 

CONTENT OF MOTION PICTURES. 

Section 110 of title 17, United States Code, is amended— 

(1) in paragraph (9), by striking ‘‘and’’ after the semicolon at the end; 

(2) in paragraph (10), by striking the period at the end and inserting ‘‘; 

and’’; and 

(3) by inserting after paragraph (10) the following: 

‘‘(11)(A) the making of limited portions of audio or video content of a motion 

picture imperceptible by or for the owner or other lawful possessor of an authorized copy of that motion picture in the course of viewing of that work for private 

use in a household, by means of consumer equipment or services that— 

‘‘(i) are operated by an individual in that household; 

‘‘(ii) serve only such household; and 

‘‘(iii) do not create a fixed copy of the altered version; and 

‘‘(B) the use of technology to make such audio or video content imperceptible, that does not create a fixed copy of the altered version.’’. 

SEC. 3. EXEMPTION FROM TRADEMARK INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO 

CONTENT OF MOTION PICTURES. 

Section 32 of the Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding 

at the end the following: 

‘‘(3)(A) Any person who engages in the conduct described in paragraph (11) of 

section 110 of title 17, United States Code, and who complies with the requirements 

set forth in that paragraph is not liable on account of such conduct for a violation 

of any right under this Act. 

‘‘(B) A manufacturer, licensee, or licensor of technology that enables the making 

of limited portions of audio or video content of a motion picture imperceptible that 

is authorized under subparagraph (A) is not liable on account of such manufacture 

or license for a violation of any right under this Act. Such manufacturer, licensee, 

or licensor shall ensure that the technology provides a clear and conspicuous notice 

that the performance of the motion picture is altered from the performance intended 

by the director or copyright holder of the motion picture. 

‘‘(C) Any manufacturer, licensee, or licensor of technology described in subparagraph (B) who fails to comply with the requirement under subparagraph (B) to provide notice with respect to a motion picture shall be liable in a civil action brought 

by the copyright owner of the motion picture that is modified by the technology in 

an amount not to exceed $1,000 for each such motion picture. 

‘‘(D) The requirement under subparagraph (B) to provide notice, and the provisions of subparagraph (C), shall apply only with respect to technology manufactured 

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

Family Movie Act of 2004.’’. 

SEC. 4. DEFINITION. 

In this Act, the term ‘‘Trademark Act of 1946’’ means the Act entitled ‘‘An Act 

to provide for the registration and protection of trademarks used in commerce, to 

carry out the provisions of certain international conventions, and for other purposes’’, approved July 5, 1946 (15 U.S.C. 1051 et seq.). 

PURPOSE AND SUMMARY

The purpose of H.R. 4586 is to clarify that existing law allows 

companies to offer technologies and services that filter out inappropriate or adult content in movies, usually digital video discs 

(DVDs). 

3 

1Family Movie Act: Hearings on H.R. 4586 Before the Subcomm. on Courts, the Internet, and 

Intellectual Property of the House of Representatives Comm. on the Judiciary, 108th Cong. 94 

(2004). 

BACKGROUND AND NEED FOR THE LEGISLATION

Motion picture fans have become increasingly concerned about 

picture content that they do not want to watch or hear, including 

that related to sex, profanity, and violence. For years, parents have 

manually turned down the volume of the audio or simply turned 

off playback of the offensive content. In recent years, people have 

begun using remote controls bundled with playback devices to accomplish the same thing. However, the ability of parents to manually filter out all of the content that they view as inappropriate has 

become more difficult as the number of sources of entertainment 

continues to increase. 

The Committee notes that airline and broadcast versions of numerous motion pictures exist that have been edited for offensive 

content. In the Committee’s view, these works manifest a valuable 

family friendly market that directors and copyright holders are 

willing to serve by editing their movies. The ongoing policy dispute 

involving H.R. 4586 may have been avoided if these airline and 

broadcast versions had been made available for sale to the public 

in the first place. 

Because these versions are not being made available by copyright 

owners, a growing number of companies are now offering services 

to assist families in their efforts to shield their children from inappropriate content. These services range from selling derivative 

works to the public that have been edited by a third party other 

than the director or copyright holder to technology that skips and 

mutes content that parents may not want their children to watch 

or hear. Such services have spawned recent litigation between the 

companies that offer these services and the affected copyright holders. 

The Committee believes these services are an important tool for 

parents and other citizens concerned about audiovisual content to 

filter out inappropriate content. There is ongoing litigation in Colorado that is placing the viability of such services into question. The 

Committee believes that legislation is necessary to clarify which 

services and technology do not conflict with those rights protected 

under existing copyright and trademark law. The Committee is not 

endorsing any particular technology or service as either legal or 

more suitable for consumers than others. The decision regarding 

preference is left to consumers; the decision regarding legality is 

left to the courts. 

The Committee is nonetheless concerned that one service that 

has adopted a model that is already legal under existing law is embroiled in litigation. In fact, the Register of Copyrights testified on 

June 17, 2004, that this model is legal under existing law.1 The 

Committee believes that ongoing litigation threatens the viability 

of services that operate under this legal model and that legislation 

to clarify the legality of this model is therefore necessary. 

The model of services that the Committee believes is legal only 

skips and mutes content without adding any new audio or video 

content while making it clear to the end user that the modified 

version may not be supported by the director. 

4 

Under existing law, moral (reputational) rights do not supersede 

parental rights to raise children as they see fit. The Committee believes that directors should be assured that their works are properly identified as such; but these same directors may not control 

every detail of how their works are displayed, particularly for a 

legal copy aired in the privacy of a consumer’s home. Several directors and a trade association representing them have argued that 

for-profit services that offer families a means to control what they 

watch in the privacy of their own home were illegal under existing 

copyright law. The Committee strongly disagrees with this interpretation of copyright law. 

HEARINGS

The Committee’s Subcommittee on Courts, the Internet, and Intellectual Property held an oversight hearing on this issue on May 

20, 2004, with testimony received from five witnesses representing 

five organizations. The Subcommittee subsequently held a hearing 

on H.R. 4586 on June 17, 2004. Testimony was received from four 

witnesses representing four organizations. 

COMMITTEE CONSIDERATION

On July 8, 2004, the Subcommittee on Courts, the Internet, and 

Intellectual Property met in open session and ordered favorably reported the bill H.R. 4586, as amended, by a vote of 11 to 5, a 

quorum being present. On July 21, 2004, the Committee met in 

open session and ordered favorably reported the bill H.R. 4586 with 

an amendment by a vote of 18 to 9, a quorum being present. 

VOTE OF THE COMMITTEE

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

House of Representatives, the Committee notes that the following 

recorded vote occurred during the Committee’s consideration of 

H.R. 4586. The Committee adopted the motion to report the bill favorably with an amendment by a vote of 18 yeas to 9 noes. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Smith .......................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon ....................................................................................................... X 

Mr. Bachus ........................................................................................................

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Ms. Hart ............................................................................................................ X 

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Carter .......................................................................................................... X 

Mr. Feeney ......................................................................................................... X 

Mrs. Blackburn .................................................................................................. X 

5 

ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Conyers ....................................................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X 

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 18 9 

COMMITTEE OVERSIGHT FINDINGS

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

House of Representatives, the Committee reports that the findings 

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

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

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

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

the bill, H.R. 4586, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, August 17, 2004. 

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

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4586, the Family Movie 

Act of 2004. 

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

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

6 

Paige Piper/Bach (for the private-sector impact), who can be 

reached at 226–2960. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 4586—Family Movie Act of 2004. 

H.R. 4586 would specify that technology used to filter certain 

material out of movies for private viewing would not constitute a 

violation of copyright or trademark law. CBO estimates that implementing H.R. 4586 would have no effect on Federal spending. 

H.R. 4586 contains no intergovernmental mandates as defined in 

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

the budgets of State, local, or tribal governments. 

H.R. 4586 would impose private-sector mandates as defined in 

UMRA. CBO estimates that the direct cost of the mandates would 

fall well below the annual threshold established by UMRA for private-sector mandates ($120 million in 2004, adjusted annually for 

inflation). 

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

collect compensation under copyright law from persons using or 

manufacturing a technology that enables making limited changes 

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

such compensation is currently received by copyright owners. 

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

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

Second, the bill also would impose a private-sector mandate on 

manufacturers, licensees, and licensors of technology that enables 

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

picture imperceptible. Such manufacturers, licensees, or licensors 

would be required to ensure that the technology provides a clear 

and conspicuous notice that the performance of the motion picture 

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

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

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

total cost of providing the notice less the direct savings achieved 

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

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

by some manufacturers. Thus, CBO expects the direct cost to comply with the mandate, if any, would be minimal. 

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

Paige Piper/Bach (for the private-sector impact), who can be 

reached at 226–2940. The estimate was approved by Peter H. 

Fontaine, Deputy Assistant Director for Budget Analysis. 

7 

PERFORMANCE GOALS AND OBJECTIVES

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

of the Rules of the House of Representatives, H.R. 4586 is designed 

to clarify the legality of existing and future services and technology 

that enable the skipping or muting of content in audio-visual 

works. 

CONSTITUTIONAL AUTHORITY STATEMENT

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

of Representatives, the Committee finds the authority for this legislation in article I, § 8, of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Section 1 provides that this Act may be cited as the ‘‘Family 

Movie Act of 2004.’’ 

Section 2 of the legislation creates a new subsection § 110 (11) of 

Title 17. This new subsection ensures that U.S. copyright law sanctions the use of any filtering service or technology that mutes or 

skips content, provided the service or technology— 

1. is confined to private, in-home use, for the household of the 

purchasing consumer only; and 

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

The Committee is aware of services and companies that create 

fixed derivative copies of motion pictures and believes that such 

practices are illegal under the Copyright Act. 

Section 3 of the legislation clarifies existing U.S. trademark law 

to ensure that it cannot be interpreted to proscribe the operation 

of services identified in § 2 so long as they display a clear and conspicuous notice that the altered version is not the performance intended by the director or copyright holder of the motion picture. 

The Committee believes that an on-screen disclaimer in large font 

at the beginning of a performance of a particular work that is displayed for a length of time suitable for the average viewer to read 

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

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

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

with the requirements maintains control over the device before the 

retail purchase point, these requirements should not burden consumer electronics manufacturers. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

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

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

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

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

8 

SECTION 110 OF TITLE 17, UNITED STATES CODE 

§ 110. Limitations on exclusive rights: Exemption of certain 

performances and displays 

Notwithstanding the provisions of section 106, the following 

are not infringements of copyright: 

(1) * * * 

* * * * * * * 

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

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

persons who are unable to read normal printed material as a 

result of their handicap, if the performance is made without 

any purpose of direct or indirect commercial advantage and its 

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

the provisions of this clause shall not be applicable to more 

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

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

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

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

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

used exclusively for charitable purposes and not for financial 

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

college or university fraternity or sorority shall not be included 

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

(11)(A) the making of limited portions of audio or video 

content of a motion picture imperceptible by or for the owner or 

other lawful possessor of an authorized copy of that motion picture in the course of viewing of that work for private use in a 

household, by means of consumer equipment or services that— 

(i) are operated by an individual in that household; 

(ii) serve only such household; and 

(iii) do not create a fixed copy of the altered version; 

and 

(B) the use of technology to make such audio or video content imperceptible, that does not create a fixed copy of the altered version. 

* * * * * * * 

SECTION 32 OF THE TRADEMARK ACT OF 1946 

SEC. 32. (1) * * * 

* * * * * * * 

9 

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

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

who complies with the requirements set forth in that paragraph is 

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

under this Act. 

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

motion picture imperceptible that is authorized under subparagraph 

(A) is not liable on account of such manufacture or license for a violation of any right under this Act. Such manufacturer, licensee, or 

licensor shall ensure that the technology provides a clear and conspicuous notice that the performance of the motion picture is altered 

from the performance intended by the director or copyright holder 

of the motion picture. 

(C) Any manufacturer, licensee, or licensor of technology described in subparagraph (B) who fails to comply with the requirement under subparagraph (B) to provide notice with respect to a 

motion picture shall be liable in a civil action brought by the copyright owner of the motion picture that is modified by the technology 

in an amount not to exceed $1,000 for each such motion picture. 

(D) The requirement under subparagraph (B) to provide notice, 

and the provisions of subparagraph (C), shall apply only with respect to technology manufactured after the end of the 180-day period 

beginning on the date of the enactment of the Family Movie Act of 

2004. 

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, JULY 21, 2004 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

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

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

Chairman SENSENBRENNER. The Committee will come to order. A 

quorum is present. 

[Intervening business.] 

[11:00 a.m.] 

Chairman SENSENBRENNER. Next item on the agenda is H.R. 

4586, the ‘‘Family Movie Act of 2004.’’ The Chair recognizes the 

gentleman from Texas Mr. Smith, the Chairman of the Subcommittee on Courts, the Internet, and Intellectual Property, for a 

motion. 

Mr. SMITH. The Subcommittee on Courts, Internet, and Intellectual Property reports favorably the bill H.R. 4586 with the single 

amendment in the nature of a substitute and moves its favorable 

recommendation to the full House. 

Chairman SENSENBRENNER. Without objection, the bill will be 

considered as read and open for amendment at any point. 

[The bill, H.R. 4586, follows:] 

10 


I4586A1.eps
11 


I4586A2.eps
12 


I4586A3.eps
13 


I4586A4.eps
14 

Chairman SENSENBRENNER. And the Subcommittee amendment 

in the nature of a substitute which the Members have before them 

will be considered as read, considered as the original text for purposes of amendment, and open for amendment at any point. 

[The amendment in the nature of a substitute follows:] 

15 


A4586A1.eps
16 


A4586A2.eps
17 


A4586A3.eps
18 

Chairman SENSENBRENNER. The Chair recognizes the gentleman 

from Texas, Mr. Smith, to strike the last word. 

Mr. SMITH. I do move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SMITH. Mr. Chairman, we are here today to determine 

whether parents have the right to decide what their children watch 

on the screen in the privacy of their own home. Specifically, do parents have a right to protect their children from sex, violence, and 

profanity in the movies? 

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

DVD player that doesn’t come with a remote control, yet there are 

some who would defy the parents the right to use the equivalent 

electronic device that would protect their children from offensive 

material on television. Yes, parents might mute dialogue that others deem crucial or might fast-forward over scenes that others consider essential, but that is irrelevant. Parents should be able to 

mute or skip over anything they want if they feel it is in the best 

interest of their children. And as a practical matter, parents cannot 

monitor their children’s viewing habits all the time. 

If you look at a DVD and 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 not been 

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

violated. 

Some have said that the recent decision by RCA to stop selling 

one brand of family-friendly technology is a sign that this legislation should not proceed. This issue has never been about simply 

one company or one technology. It has always been about the ultimate right of parents to limit the profanity, sex, and violence that 

their children are exposed to in the privacy of their own home. 

In fact, the Register of Copyrights has testified that skipping of 

content is legal under the law. Most recently the Supreme Court 

itself has issued a decision in Ashcroft v. ALCU concerning the 

Children’s On-Line Protection Act. The majority opinion noted at 

length their preference for private sector filters to protect children 

from objectionable content on the Internet. Two quotes from the 

majority opinion are noteworthy. Quote, ‘‘Filters are less restrictive 

than the Children’s On-Line Protection Act. They impose selective 

restrictions on speech at the receiving end, not universal restrictions at the source.’’ the majority then added, quote, ‘‘by enacting 

programs to promote use of filtering software, Congress could give 

parents that ability without subjecting protected speech to severe 

penalties,’’ end quote. 

Just as the author of a book should not be able to force me or 

anyone else to read that book in any particular manner, a studio 

or director should not be able to force me or my children to watch 

a movie in a particular way. No one would argue that it would be 

or it should be against the law to skip over a few pages or even 

entire chapters of a book. So too it should not be illegal to skip over 

a few words or scenes in a movie. 

One criticism is that no one forces parents to make sure children 

watch objectionable movies. However, popular movies are used as 

homework assignments in many middle and high schools today. 

19 

The parents are in fact forced to allow their children to watch a 

movie in the privacy of their own home, even though the movies 

contain objectionable content. 

However, Mr. Chairman, even that criticism itself is a distraction. Parents should have the right to show any movie they want 

and to skip or mute over any content they find objectionable. The 

Family Movie Act ensures that parents have those rights. 

Mr. Chairman, I will yield back the balance of my time. 

Chairman SENSENBRENNER. Mr. Berman, the gentleman from 

California. 

Mr. BERMAN. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. Mr. Chairman, I ask my colleagues to oppose this 

bill. Notwithstanding the comments of my friend, the Chairman of 

the Subcommittee, and I think this is probably the first bill in the 

year and a half that he has been Chair and I have been Ranking 

Member where I disagree with him on an item that came out of 

Subcommittee as opposed to some other issues which don’t come 

out of our Subcommittee. 

This is not a bill about empowering parents or protecting children. Notwithstanding the rhetoric in the opening statement, notwithstanding the Republican memo, I ask the Committee to remember two things. In the subCommittee I offered an amendment 

to ensure this bill only legalizes movie editing done on behalf of 

minor children. That amendment was rejected. I also offered an 

amendment, and Mr. Schiff is going to be offering an amendment 

on this bill, that limited the filtering to profanity, violence, and explicit sexual conduct. That amendment was rejected by the majority. 

So in defeating those amendments, essentially, and in the rhetoric to defeat those amendments, the supporters of the bill as presented to us stated that it is intended to facilitate movie editing by 

anyone, for anyone, for any purpose, not just for children. So even 

the bill’s sponsors have acknowledged that this bill is not focused 

on empowering parents or protecting children. 

Let’s be clear about something else too. H.R. 4586 does not give 

parents the ability to do anything they cannot legally do today. No 

parent has ever been sued or threatened with suit for editing or 

censoring the movies their children see. In fact, the Register of 

Copyrights have testified that H.R. 4586 is, quote, ‘‘not needed because it seems reasonably clear that such conduct is not prohibited 

under existing law.’’ copyright owners themselves clearly admit 

that parents have the legal authority to do such editing in the privacy of their own home. 

The bill is also not needed to give parents the technological ability to edit or censor the movies their children watch. To a large extent, parents already have this ability. They can use their remote 

control to fast forward, mute, or turn off a movie. They can engage 

their V-chips that are built into all televisions sold these days. And 

this bill does nothing to legalize technologies that enable parents 

to make editorial decisions about which movie scenes their children 

cannot see or hear. 

20 

So what does this bill do? It gives for-profit companies the right 

to commercially exploit the copyrights and trademarks of movie 

makers without fear of liability. It allows those for-profit companies 

to make editorial decisions about movies without the input of their 

creators and to market products containing those editorial decisions to anyone, parents or otherwise. This is the key point. H.R. 

4586 does not empower parents to make editorial decisions about 

which scenes their children will or won’t see; rather, it empowers 

for-profit companies like ClearPlay to make editorial decisions 

about which movie scenes other people’s children will or won’t see. 

When a parent uses a remote control to fast-forward through a 

scene, it is the parent who views the scene and assesses whether 

it is inappropriate for the child. Again, it is absolutely clear that 

such editing is entirely legal today. However, when a parent engages a ClearPlay filter, the parent relies on a nameless, faceless 

ClearPlay employee to decide which scenes are inappropriate for 

her child. 

The question at the heart of this bill and the copyright litigation 

to which it reacts is whether ClearPlay should be able to engage 

in such commercial editing without the permission of copyright and 

trademark owners. I don’t believe Congress should be in the business of giving ClearPlay such a right. 

Even if you believe ClearPlay should have the legal ability to do 

such commercial editing, this bill won’t get you there. H.R. 4586 

only protects movie filtering technologies like ClearPlay from liability for copyright and trademark infringement, but it doesn’t protect 

them, at least at this point, from suits for patent infringement. 

At least one company, Nissan Corporation, claims to have a patent over ClearPlay-type technology and has sued ClearPlay for patent infringement. Since Thompson Electronics recently pulled its 

ClearPlay-enabled DVD players from the market, it appears that 

Nissan’s patent claims are well founded. Thus, if H.R. 4586 were 

to become law, ClearPlay very likely will not be able to distribute 

its technology. In fact, if it is—— 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. BERMAN. I ask unanimous consent for 2 additional minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. BERMAN. If the patent claims are valid, Nissan Corporation 

would be the only company that H.R. 4586 benefits. Nissan would 

be the only company that could distribute its technology without 

fear of liability. Knowing the professed intent of the bill’s sponsors, 

I find it highly ironic that H.R. 4586 may exclusively benefit Nissan. Nissan, unlike ClearPlay, distributes a technology called Custom Play—well, actually ClearPlay distributes the same technology, but Nissan advertises that it allows movie viewers to either 

reduce or enhance the level of violence, sex, and profanity in a 

movie. The Nissan Web site states that using Custom Play technology, an adult can play a version of an adult video that 

seamlessly excludes content inconsistent with the viewer’s adult 

content preferences. And that is presented at a level of explicitness 

preferred by the adult. Adult content categories are standardized 

and are organized into five groups: who, what, camera, position, 

and fetish. In other words, H.R. 4586 exclusively protects from liability a technology that, among other things, enables viewers of 

21 

pornographic movies to filter out the nonpornographic scenes. I am 

sure its sponsors don’t intend H.R. 4586 to solely benefit a company that makes pornography more pornographic; however, that 

may very will be its effect. 

Now they are aware of the risk, I think they should think twice 

before asking Committee Members to vote in favor of this bill. 

Upon reflection, I think the bill’s sponsors may agree with the Register of Copyrights who testified, quote—— 

Chairman SENSENBRENNER. The gentleman’s time has once again 

expired. 

Without objection, all Members’ opening statements will appear 

in the record at this point. 

[The prepared statement of Ms. Waters follows:] 

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Chairman, I move to strike the last word. 

Mr. Chairman, I have significant concerns about this bill. Mr. Berman has expressed many of them. Yet these concerns are somewhat lessened because the technology that we are addressing does not create an altered copy that can be redistributed to other users or to the public generally. 

As I understand the technology, it employs software that will filter what appears 

on a dvd player when a movie is inserted, but it does not alter the movie itself. I 

see some persuasiveness to the view that Representative Lofgren expressed in our 

Subcommittee markup that the technology simply assists authorized users in doing 

what they already have a right to do: namely, to view only those portions of a movie 

or a TV show that they wish to watch. 

Nonetheless, I question whether H.R. 4586 is necessary. I also believe that we 

must acknowledge that the bill contains no meaningful limits on the scope of permissible filtering. As a result, I believe that it will impinge on the artistic freedom 

of motion picture creators, weaken the rights of motion picture copyright owners, 

and raise First Amendment concerns. 

As I noted at the Subcommittee markup, if our goal is to protect young people 

from content that their parents deem objectionable, I believe that there are far less 

drastic means available to accomplish this. 

We know that there are versions of movies that appear on airlines and on television that are edited from the original work. While sometimes these movie versions 

are edited to shorten the time of the film or to delete the credits, they also sometimes are edited to ensure that content not deemed suitable for children is deleted. 

It seems clear to me that where the public, or a company like ClearPlay, has access to the so-called ‘‘airplane’’ or ‘‘TV’’ versions of movies that these versions will 

properly protect young people from potentially objectionable content. 

Thus, I continue to believe that if we are going to legislate in this area, where 

‘‘airplane’’ or ‘‘TV’’ versions of a movie are licensed to a company like ClearPlay or 

where such versions are available for sale to the public, the airplane or TV version 

should represent the outer limit of permissible content editing. 

We should prevent the use of filtering software to create edited versions of movies 

that contain edits other than those included in the ‘‘airline’’ or ‘‘TV’’ version where 

such a version is available to the public, and not permit additional filtering of the 

work without the consent of the motion picture owners and creators. 

Mr. Chairman, I am not seeking to require any movie owner to create an ‘‘airline’’ 

or ‘‘TV’’ version of any movie, nor should we require a movie owner to make an airline or TV version available to the public or to license such versions to companies 

like ClearPlay where such versions do exist. 

Mr. Chairman, I know that there is considerable controversy as to whether the 

software employed by ClearPlay violates the copyright or trademark laws, and my 

comments are not intended to express a view on that dispute. Yet, as I noted at 

our hearing on this bill, I think that the public would be well-served if the parties 

to the ClearPlay litigation can reach a commercial settlement of this dispute. 

I have no interest in allowing the possibility of legislation like this bill to be used 

as a club to influence settlement negotiations between the movie studios and 

ClearPlay in the federal court litigation pending in Colorado, or to influence any 

other efforts to arrive at a commercial resolution of this dispute. I fear that the 

prospect of this legislation is derailing meaningful settlement discussions. 

22 

It seems as if the prospect of this legislation may have caused ClearPlay to raise 

its demands and to take certain terms off the table that it previously had offered. 

I am advised that ClearPlay is now asking that it be allowed to edit movies made 

by ‘‘final cut’’ directors for which no airplane or TV version is available. With regard 

to films for which TV or airplane versions are available, ClearPlay is now asking 

that it be able to make its own edits, rather than use the TV or airplane edits. 

Mr. Chairman, I am very concerned about preserving the rights of the movie studios and creative artists to protect their exclusive right to create derivative works 

based upon their copyrighted motion pictures. If the movie owners and the movie 

creators and directors can agree to give ClearPlay a license to exhibit ‘‘airplane’’ or 

‘‘TV’’ versions of movies or if such versions are available to the public directly, the 

public will be very well-served. In these circumstances, I see no compelling reason 

whatsoever to create further exemptions from copyright and trademark law. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. Are there amendments? Gentleman 

from Texas, Mr. Smith, has a perfecting amendment. And the clerk 

will report the amendment. 

The CLERK. Mr. Chairman, I have two amendments. 

Chairman SENSENBRENNER. This is Smith Texas 074 XML. Is 

that the right one? The clerk will report that amendment. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 4586 offered by Mr. Smith of Texas. 

[The amendment to the amendment in the nature of a substitute, 

offered by Mr. Smith of Texas, follows:] 

Chairman SENSENBRENNER. Without objection, the amendment 

will be considered as read. The gentleman from Texas will be recognized for 5 minutes. 

Mr. SMITH. I will be brief. The perfecting amendment makes one 

simple change to the Subcommittee reported bill. The existing bill 

refers in section 3 to manufacturers. The amendment would change 

such references to manufacturers, licensees, and licensors. This 


A4586B.eps
23 

amendment would ensure that those who were involved in licensing the technology identified in this act do not also face trademark 

claims. 

So I urge my colleagues to support the perfecting amendment. 

And also, Mr. Chairman, I want to point out to my colleagues who 

are here today that the bill did receive bipartisan support as it was 

marked up in the Subcommittee. 

Ms. LOFGREN. Would the gentleman yield? I just wanted to briefly comment about the bill and certainly this is a technical amendment. I think, and Mr. Berman’s last comment about the use of 

technology to go the other direction in terms of content, emphasizes 

that really, although there has been a lot of discussion about the 

use of technology to protect parents, it is really about consumer 

rights in my judgment. 

And it seems to me that if an individual has a right not to watch 

parts of a DVD, which we all agree consumers have that right— 

you can go to the bathroom, you can go to the refrigerator—then 

it seems to me you have the right to use whatever technology you 

wish to as a tool to advance that right. So I think it is important 

to note that this technology does not permanently alter the underlying DVD, it has never changed, but it is merely a tool to allow 

people to watch what they want to watch, either enhanced so that 

they don’t have to watch the nondirty parts, or to take out all the 

violence and dirty parts or whatever. 

So looking at it in that way this is just a consumer rights bill. 

And I feel very comfortable in supporting it. 

I thank the gentleman for yielding to me to say so. 

Mr. SMITH. I thank the gentlelady from California for her comments. Mr. Chairman, I yield back. 

Chairman SENSENBRENNER. Mr. Berman. 

Mr. BERMAN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. I have no objection to this amendment of a technical nature. I am not asking people to oppose this amendment. I 

just want to respond that were there a company to develop a software that enabled parents or consumers to develop filters to exclude items they wanted to, we would be talking about something 

very different. But this is not what this legislation authorizes and 

purports to legalize. 

And again I simply go back to the fact that things which empower consumers are very different than things which substitute 

for consumers’ judgment with a product owned by somebody else so 

that their trademark and their copyright is changed. And the fact 

that this doesn’t touch—if ever I heard of a distinction without a 

difference, the fact that this is a filter that makes imperceptible 

that which comes off of the DVD as opposed to altering the DVD 

to me is a distinction without a difference. They are changing what 

the creator of that work intended. I think that they should be 

working with that creator and that copyright owner to provide a licensed version of those things when they are in the business of 

making a profit by producing and distributing and selling these filters. 

I yield back. 

24 

Chairman SENSENBRENNER. The question is on the amendment 

to the amendment in the nature of a substitute offered by the gentleman from Texas, Mr. Smith. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. Ayes have it. The amendment is 

agreed to. 

Further amendments? The gentleman from California Mr. Schiff. 

Mr. SCHIFF. I have two amendments at the desk. If I could take 

up the first, 110. 

Chairman SENSENBRENNER. The clerk will report Schiff 110. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 4586 offered by Mr. Schiff. Page 1, line 15, strike 

‘‘limited’’ and insert ‘‘profane, sexual or violent.’’ page 2, line 22, 

strike ‘‘limited’’ and insert ‘‘profane, sexual, or violent.’’ 

[The amendment to the amendment in the nature of a substitute, 

offered by Mr. Schiff, follows:] 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. I thank the Chairman. Before I go to the merits, I 

wanted to join my colleague from California, Mr. Berman, in his remarks. This bill is really not about parents having editorial discretion over the films that their children see, but rather whether one 

private company or a series of private technology makers should 

have the unrestricted ability to edit someone else’s work product 

and put it into the market, edit it in any way they like without 


A4586C.eps
25 

having, as they are required under current law, to negotiate those 

rights with the developer of the content. 

This is, in just a different forum, one of the many disputes between the technology makers and the makers of content about who 

want to control that content. That is really what is at the heart of 

the bill. I think this amendment lays bare what this bill is really 

about. Because in sum what this amendment does is ensure that 

the protections provided by the legislation would only be extended 

to technology that is aimed at protecting viewers from profane, sexual, or violent content. 

This amendment was offered by Mr. Berman in Subcommittee. 

And as has been pointed out, while the proponents of the underlying bill have indicated that their goal is to provide filters that 

would sanitize movies of sex, violence, and profanity, the current 

bill is not drafted to limit its provisions to such edits; rather, the 

bill would legalize a far wider and unbridled universe of filtering 

to either increase profane, violent, and sexual content or decrease 

it. 

This legislation would provide a safe harbor to a company that 

proactively markets this product as a means of isolating sexual 

content for the viewer, as has been indicated by my colleague from 

California. And I sincerely doubt the proponents of this legislation 

intend to do that, but that is the effect. 

So this amendment would ensure that Congress is not promoting 

unintended consequences providing licenses to those that make filters that are less desirable. And since the amendment really goes 

precisely at what the proponents say they want to accomplish, I 

can only assume if they oppose the amendment that their goal is 

something different, that their goal is not really to limit the violence, the sexual, the profane, but rather to give a competitive economic advantage to some technology makers over other technology 

makers, to all technology makers over content makers, because 

what the technology makers seek to do they are capable of doing 

through negotiation. And currently those negotiations are going on. 

But if Congress steps in and changes the playing field, it obviously advantages some of the technology makers vis-a-vis others. 

But if our goal really is to limit this to protecting minors, to empower parents, this amendment goes right to the heart of what the 

proponents seek to do. And I think it will be apparent based on the 

support for this amendment or its opposition what is really at 

stake here. 

And I would urge all my colleagues to support this limiting language. I would yield back the balance of my time. 

Chairman SENSENBRENNER. Mr. Smith. 

Mr. SMITH. Mr. Chairman, we dealt with this amendment in 

Subcommittee, but I am happy to register my objection to it again. 

The Family Movie Act is not about just profane, sexual, or violent 

content, it is about the right of parents to decide what their children see. Parents may choose to skip over or mute anything they 

want to, quite frankly. It might be profane, sexual or violent content, but they might also choose to mute or skip over other content 

that they find objectionable. This content, for example, could include drug use that a parent does not want their teenager to 

watch, or it could simply be a scary part of a movie that an 8-yearold will get nightmares from. In other words, it is not just limited 

26 

to the profane or the sex or the violence. Whatever the content depicted on the screen, parents should have a right to use a remote 

control to mute or skip over it or use technology to accomplish the 

very same thing. 

I urge my colleagues to oppose the amendment. 

Mr. CANNON. Would the gentleman yield? 

Mr. SMITH. I would be happy to. 

Mr. CANNON. This, of course, has been a very interesting issue 

to me, since I represented all of the defendants in litigation between the studios and directors on the one hand, and the producers 

of innovation and technology that allows people a great deal more 

freedom as they look at Hollywood’s otherwise admirable products. 

But I have a concern that is very important to me. We have in that 

lawsuit a number of technologies and theories of law. I am wondering if the gentleman from Texas could comment on the implications of this bill for other theories of law that are represented in 

that lawsuit. In other words, when the lawyers for the studios and 

the directors stand up and argue what we do here today, will that 

have an effect on that lawsuit, or do you see it as independent, 

maybe establishing some principles but not jeopardizing other arguments or issues? 

Mr. SMITH. Would the gentleman yield? I envision this legislation 

as being independent both from lawsuits and from any specific 

technology, if that reassures the gentleman. And one reason for 

this legislation is that, quite frankly, we don’t know what a specific 

court in a specific State is going to do. What we want to do here 

is make sure that parents, in whatever State they live, have the 

right to mute or skip over certain material that they consider to 

be offensive and not in the best interest of their children. 

Does that help the gentleman? 

Mr. CANNON. I thank the gentleman. 

Mr. BERMAN. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. Mr. Chairman, I obviously support the gentleman’s 

amendment. Only two comments I want to make. One, in presenting the bill, this is about presenting—allowing parents, empowering parents to prevent children from seeing inappropriate violence, hearing inappropriate profanity, viewing inappropriate sexual content. 

Mr. Schiff offers an amendment and now it is about empowering 

parents to filter any item, including items that don’t fit into those 

categories for children. When we offer an amendment that says all 

right, let’s just allow this for when the parents are using filters to 

show it to the children, this is not about just parents showing it 

to the children. 

Why with all the rhetoric, why don’t we just go right to the gentleman from California’s point; they think it is a consumer right to 

have a commercial company create its own filters which are then 

sold to change, fundamentally in many cases, either in a pornographic enhancing or a pornographic reducing way or in any other 

way, the product of an artistic creation owned by somebody else. 

The second point I want to make is the comment that this is 

technology neutral. Just read the bill. This only purports to authorize one type of technology, a technology by means—it is a techVerDate Aug 04 2004 00:51 Sep 09, 2004 Jkt 029006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\HR670.XXX HR670
27 

nology, if you look at the bill, the making—which allows the making of limited portions of audio or video content imperceptible by 

or for the owner or other lawful possessor, for private use in a 

household, although that may be changed by a subsequent amendment that the gentleman may offer, which are operated by an individual in that household, serve only such household, do not create 

a fixed copy of the altered version. 

If you create a fixed copy of the altered version, then this technology—that technology is not permitted. This bill is not technology 

neutral. This favors the ClearPlay-type technology, not technologies 

which alter, mutilate, splice, or whatever dice means, in the context of this. It is not a technology neutral proposal. 

Mr. SCHIFF. Would the gentleman yield? I wonder if I might pose 

a question to the gentleman from Texas that how far he thinks this 

legislation or other ought to go. Should purchasers of the technology be able to use it to edit a film to change the ending of a 

film? 

Mr. SMITH. Would the gentleman yield? Let me repeat a couple 

of things that I thought I had made clear but apparently did not. 

First of all, I feel that parents should be able to use the technology 

to skip over anything that they deem offensive. If they want to skip 

the ending of a movie, even though someone else might consider it 

to be crucial, I think that is the right of the parents. 

So to follow upon what Mr. Berman just said, we have given examples of sex, violence, and profanity, but I made clear from the 

very beginning those are just the most egregious examples. I gave 

an example of a parent not wanting to see drug dealing, for example. 

So all the examples that you all might come up with are really 

red herrings or straw men or distractions to get us away from the 

real issue to me, which is the right of parents, the right of consumers, even in Ms. Lofgren’s words, to use technology that we 

might have done—it might have been manual a generation ago, it 

might be by remote control in other year or two—but to use technology to skip over anything they deem offensive in the privacy of 

their own home. 

We are not talking about changing permanently the film or the 

DVD or the VCR. We are not talking about selling it for profit. We 

are not talking about commercializing it. We are talking about the 

right of parents to do what they want to do with the VCR in their 

own home. 

Mr. BERMAN. I yield to the gentleman from Massachusetts. 

Mr. DELAHUNT. I was just simply going to ask the Ranking Member Mr. Berman here, aren’t there other technologies that are in 

existence at this moment in time that do exactly what the gentleman from Texas wishes to do? 

Mr. BERMAN. V-chips, remote controls, mute buttons, fast-forward buttons. 

Mr. DELAHUNT. Is that why the—— 

Mr. BERMAN. And other—and technologies which empower the 

parent—although I know it is not just the parent—but the parent 

to create their own filters to show movies. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. DELAHUNT. Mr. Chairman. 

28 

Chairman SENSENBRENNER. The gentleman from Massachusetts. 

Mr. DELAHUNT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. DELAHUNT. I yield whatever time Mr. Berman needs to complete the point that he was making. 

Mr. BERMAN. On the theory that it is a point that I have already 

made, I will not make it again. 

Chairman SENSENBRENNER. That is appreciated. 

Mr. BERMAN. At this moment. 

Mr. DELAHUNT. Again, I would just make the observation that I 

think it is rather clear that in the exchange between Mr. Smith 

and Mr. Berman and Mr. Schiff, and I applaud the gentleman for 

his amendment, I think it really does clarify for us this is really 

not—and I think we should be clear—this is not about violence, 

this is not about profanity, this is not about inappropriate sexual 

scenes, this is about a technology that will be provided a particular 

commercial advantage. That is what I see this to be. And I think 

it is absolutely inappropriate. 

And for those that have concerns about children viewing sex, violence, et cetera, any kind of unacceptable behavior, there are technologies that are in existence right now. We as a Committee are 

intruding ourselves into litigation. Yes, I understand the gentleman’s point regarding that it would not be used in the sense of a 

particular discrete lawsuit; however, let’s not kid ourselves. The 

parties to that particular litigation are waiting for action and it 

does create a certain leverage for Clear Channel in terms of the negotiations, because I presume that at some point in time reasonable people will work out an agreement and a settlement will be 

affected. 

Mr. CANNON. Would the gentleman yield? 

Thank you. We actually agree on a point here. I believe this bill 

gives a technological advantage; at least it makes clear that one 

technology is appropriate. I would like to make clear for the record 

that doing so doesn’t—I think the gentleman from California was 

suggesting that there may be some rationale here for application 

of this theory as limiting the theories of law that the other, in this 

case plaintiffs, those people who are being sued by the directors 

and the studios have; that is, as I review this, I believe that this 

bill only adds protection to a particular technology and does nothing to undermine the theories of the case of the other plaintiffs 

with other technologies. And I would like to know if the gentleman 

from California, or Mr. Delahunt, you believe anything other than 

that. 

Mr. DELAHUNT. Reclaiming my time, I agree with the gentleman 

from Utah. This is all about, in my opinion, providing leverage for 

negotiations to secure a settlement. It has nothing to do with the 

outcome of legislation. 

Mr. BERMAN. Would the gentleman yield? 

Mr. DELAHUNT. Yield to the Ranking Member. 

Mr. BERMAN. Taking up a theme that the gentleman said earlier 

and the gentleman from California implied, I guess when you say 

it is about sex, violence, and profanity, it is really about the money. 

It does create an implication, I suggest, because the Register of 

Copyrights says for the copyright purposes you really don’t need 

29 

this bill, because a fixed copy isn’t created through this filter and 

therefore it doesn’t violate copyright now. 

Now, that is not a comment on the facts of the particular litigation and the Register acknowledges she hasn’t seen the evidence 

that is being presented in that case. But when you have a bill that 

says do not create a fixed copy of the altered version, it certainly 

leaves an implication that if you do create a fixed copy, you are in 

bad shape. And so I would argue that by clear implication from the 

language of this bill, people with other kinds of technologies that 

don’t meet the test of this bill, are in high risk. 

Mr. SMITH. Would the gentleman yield? 

I certainly agree with Mr. Berman if we were to tamper with or 

alter permanently with the disc, that would be a copyright violation. But just for your sake, I think the record ought to be accurate. 

A while ago you mentioned Clear Channel instead of ClearPlay. 

That happens to be a constituent firm, and I wouldn’t want to involve them in the this debate. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The question is on the adoption of the amendment by the gentleman from California, Mr. Schiff. 

Those in favor will say aye. 

Opposed, no. 

The noes appear to have. The noes have it. The amendment is 

not agreed to. 

Are there further amendments? 

Mr. SCHIFF. I have a further amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

[The amendment to the amendment in the nature of a substitute, 

offered by Mr. Schiff, follows:] 


A4586D.eps
30 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 4586 offered by Mr. Schiff. Add at the end the 

following: Section 5—— 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentleman from California will be recognized for 5 minutes. 

Mr. SCHIFF. Mr. Chairman, this is a simple but important 

amendment that would provide a 3-year sunset for the legislation. 

As has already been pointed out the Register of Copyrights testified 

at the Subcommittee that the issues touched upon in this legislation are currently in the middle of litigation and negotiation, litigation addressing whether the manufacture and distribution of such 

technology violates the copyright law. And the Lanham Act is in 

Federal court with a summary judgment motion still pending. 

The parties to the pending litigation include the commercial providers of various movie filters available, the movie studies that own 

the copyrights, and the directors who are legitimately concerned 

about their rights as creators. But more importantly and perhaps 

more promising, are the serious ongoing negotiations that have 

been occurring between the individual studios and technology providers aimed at resolving this dispute through mutually acceptable 

licensing agreements. Indications are that those negotiations have 

progressed substantially well. However, this legislation will surely 

bring these negotiations to a complete halt. 

By supporting a 3-year sunset, Congress will be sending a clear 

message that negotiations should still be taken seriously. My colleagues on the other side of the aisle have often urged us to permit 

the marketplace to resolve a host of issues. This amendment would 

do just that. If we provide a small incentive to the studios and 

technology providers to work something out over the next 3 years, 

a permanent exemption is not needed. 

This amendment would also ensure that Congress can revisit 

this issue to make sure there are no unintended consequences. As 

we have already heard, the legislation would currently potentially 

provide a safe harbor to a company which markets its product as 

a means of isolating and enhancing sexual content for the viewer. 

And I doubt the proponents of legislation intended to promote that. 

It will ensure that Congress can come back and determine whether 

this legislation has indeed had such unintended consequences. 

I would urge my colleagues’ support. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Smith. 

Mr. SMITH. I oppose the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SMITH. The issue before us today is still what right do parents have to control what their families see in the privacy of their 

own home. If we think that parents should have such right, there 

is no justification for limiting those rights. Are we saying that parents can only protect their children for 3 years? Parents have a 

moral right and in fact a legal responsibility to protect their children from offensive material. Most parents remain heavily involved 

in the lives of their children. Why should we limit parental rights 

to only the next 3 years? 

31 

The Register of Copyrights has already testified that what one of 

these companies is doing is legal, not that they are only legal for 

a certain number of years. This amendment seems to ignore the 

Register’s testimony. Also, Mr. Chairman, I don’t know of a single 

precedent by this full Committee where we have limited or attempted to limit any right. And I don’t think we should start to by 

limiting the right of parents to only 3 years. 

So I would encourage my colleagues to oppose this amendment. 

I yield back. 

Chairman SENSENBRENNER. The gentlelady from Texas, Ms. 

Jackson Lee. 

Ms. JACKSON LEE. I thank the Chairman. I would like to strike 

the requisite number of worlds. 

Chairman SENSENBRENNER. The gentlelady is recognized for 5 

minutes. 

Ms. JACKSON LEE. I will add my comments to incorporate Mr. 

Schiff previous amendment which was defeated—I thought that 

was certainly an effort of reasonable compromise—and then, of 

course, to add my comments on the present amendment that 

speaks to this question of a limitation, and combine it with my concern for the broadness of this legislation and to indicate that in the 

past I have been frankly welcoming a legislation that deals with 

the prohibition of obscenity and other untoward activities that 

might impact children. But in this instance, I think there are several points that would undermine this legislation at this point. 

One, there is ongoing litigation that may have an alternate viewpoint. Of course, here we go again. We are trying to thwart the 

third branch of government. That will be occurring in the next 48 

hours as we debate legislation on the Marriage Protection Act. We 

now want to close the door prematurely and interfere with ongoing 

litigation. 

Secondarily, I think it is noted that we voted in this Committee, 

some of us, on the V-chip which has been working for a number 

of years. 

And then I want to take my good friend up on his question of 

morality, my good friend from Texas. He is absolutely right. It is 

a question of morality. What we have heard so often is that it is 

a question of parents being parents. Some of us who are parents 

realize that those are very challenging responsibilities. But parents 

have the opportunity to sit down with their children and be selective of what is on and what is not. 

The interesting point about this, of course, is that this is an economically biased legislative initiative. The poor parents who can’t 

afford this technology will have their household, I assume, filled up 

with these bad movies, if you will, leave them to, I guess, their religious views and their morality. But the rich folks can go off to the 

Hamptons and leave the kids in front of sophisticated technology. 

Well, I believe in equal opportunity. Let all parents be parents, 

poor people, middle-class people, and rich people. Leave the technology alone and sit down and tell your kids what to look at, or 

turn the TV off, or sit down with them and discuss the issue. 

My concern was there was nudity in ‘‘Schindler’s List,’’ nude bodies. Are you suggesting there is nothing wrong with that? There 

was interracial relationships in Spike Lee’s ‘‘Jungle Fever.’’ it is all 

a matter of taste and it is all a matter of having a family member 

32 

sit down and deal with their children. Some of us have been perfect 

and imperfect. But it is our responsibility. We can be aided by certain tools, and I think the V-chip is reasonable. But I would argue 

at this point, with ongoing litigation, the fact that this is a purchased item and therefore some will get it and some won’t, I just 

think at this point we need further facts and further study before 

we support this particular legislation. 

But I would support both amendments, one that has been defeated, but I rise in support of Mr. Schiff’s amendment. I yield back 

my time. 

Chairman SENSENBRENNER. Question is on the second Schiff 

amendment. 

Those in favor will say aye. 

Opposed, no. 

Noes appear to have it. Noes have it. And the amendment is not 

agreed to. 

Are there further amendments? The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized. 

Mr. SCOTT. I would like to ask the gentleman from California a 

couple of questions to make sure I understand this. This machine 

that we are allowing to be used is not content neutral like a VCR 

or cassette tape, it is movie-specific, where would you have to buy 

a subscription to a specific movie for this thing to work; that is to 

say, you can’t view the altered version without paying somebody 

some money for that specific movie. Is that right? 

Mr. BERMAN. Close to right. Here, what you are doing is buying 

a filter, one of a number of filters in the case of ClearPlay, that 

are offered for a specific film that will be used when you show that 

film, it will be used on your machine, on your DVD player, and 

which will then filter out what some employees at ClearPlay decided should be filtered out. So it is you buy filters for a specific 

movie. It is not film neutral. It does not edit out certain words or 

certain scenes from all movies. It is movie specific. 

Mr. SCOTT. To get this movie after this altered version software, 

I buy the movie, and then have to pay someone a subscription fee 

or money to get this altered software, movie specific. 

Mr. BERMAN. That is right. A subscription I think that is actually—that is maybe their business model, subscriptions to choose 

which filters for which movies that we have decided we should create filters for and what—the kinds of things that our employees are 

filtering. 

Mr. SCOTT. Obviously you have trademark implications if you are 

selling a product which will show a version of a movie and the people that produce the movie don’t get a cut of the action. 

Mr. BERMAN. That is exactly right. 

Mr. SCOTT. Now, does the pending litigation—would the outcome 

of the pending litigation solve this question? 

Mr. BERMAN. Yes. The pending litigation would solve—it would 

either say this kind of filtering system does not violate copyright 

law, does not violate the Lanham Act trademark law, or it does. 

And if it was concluded that it does, than perhaps we would want 

to consider—then debate the merits of whether they should be allowed and we should exempt and under what conditions we should 

33 

exempt this kind of technology from copyright law and trademark 

law. 

Ms. LOFGREN. Would the gentleman yield? I think it is important 

to clarify that the person who makes the movie, the DVD, is compensated; because in order to play the movie using the technology, 

you either have to buy the DVD or rent the DVD. So that doesn’t 

change. It is just how you watch it that changes. I thank the gentleman. 

Mr. SCOTT. I would ask—but to view the different version, you 

would have to buy the DVD; but if for some reason you wouldn’t 

buy it unless you could have the enhancement, movie-specific enhancement so it would be ‘‘Training Day’’ without cuss words, the 

without-cuss-words edition, you would have to pay extra for, and 

the people who made ‘‘Training Day’’ would not have the editorial 

decision as to what gets cut out and what doesn’t and they would 

get no cut of additional money. 

Ms. LOFGREN. That is correct. If you used your remote to skip 

over the parts, or if you went to the refrigerator to get a beer while 

they were doing the dirty words, no one would get a cut of the beer 

for the altered version. 

Mr. SCOTT. But you didn’t have to pay for the use of the remote 

control in the VCR. 

Mr. BERMAN. You have to pay for the beer but you don’t have to 

otherwise pay to go to the refrigerator. The fact is that altered 

forms of films are a revenue stream for copyright owners. And that 

is why there is a market for films for airplanes, films for television, 

and in some cases, by the way, original cuts for DVDs that aren’t 

shown in the theater. Each one of those produce revenue streams 

for the copyright owners and the creators. 

And under the collective bargaining agreements, the copyright 

owners must consult with the creators before they make those, so 

both as to how it is edited and the revenue stream, copyright owners traditionally recover additional monies for that altered version. 

Chairman SENSENBRENNER. The time of the gentleman has expired. Are there further amendments? 

For what purpose does the gentleman from California seek recognition? 

Mr. BERMAN. I have an amendment at the desk, amendment 

number 2. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 4586 offered by Mr. Berman. 

Page 1, line 15, after—— 

[The amendment to the amendment in the nature of a substitute, 

offered by Mr. Berman, follows:] 

34 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentleman from California will be recognized for 5 minutes. 

Mr. BERMAN. Thank you, Mr. Chairman. 

H.R. 4586 limits the copyright and trademark rights of movie 

producers and directors, provides them no compensation or royalties for those statutory limitations of their rights. It was just pointed out in the dialogue that the gentleman from Virginia undertook 

with Ms. Lofgren and myself. 

The stated justification for these limitations on copyright and 

trademark rights is to ensure parental access to technological tools 

that filter objectionable content in motion pictures. My amendment 

will advance these goals in much the same way. It requires the 

manufacturers of these filtering technologies to offer competitors 

royalty-free licenses to their technology in order to get the protection from liability provided by H.R. 4586. 

This amendment will ensure the most widespread dissemination 

of filtering technologies to parents. It will ensure the best technologies available from a wide variety of vendors. If will ensure 

that parents will not have to pay monopoly prices for access to that 

technology. I think my amendment is fair. And if it is fair to limit 

the intellectual property rights associated with movies in order to 

benefit parents, then it is fair to the intellectual property rights of 

the filtering companies who are filtering without the consent of the 

copyright owners and without compensating them in order to benVerDate Aug 04 2004 00:51 Sep 09, 2004 Jkt 029006 PO 00000 Frm 00034 Fmt 6659 Sfmt 6601 E:\HR\OC\HR670.XXX HR670

A4586E.eps
35 

efit parents. If it is fair to provide movie copyright and trademark 

holders with no royalties in exchange for the loss of their rights, 

then filtering companies should likewise expect no royalties for a 

similar loss. That is my amendment. 

Mr. SCHIFF. I would like to say to my colleague from California, 

this is a brilliant amendment. It is very much a consumer—— 

Mr. BERMAN. I didn’t think of it. 

Mr. SCHIFF. It is very much a consumer rights amendment. It expands the benefits for the consumers that the proponents of the underlying bill purport to be concerned about. 

And I do have one question about both the amendment and the 

underlying bill, and that is, does the underlying bill permit, for example, one of the makers of this filter technology to advertise, buy 

a filter for ‘‘The Terminator’’ and you can change ‘‘The Terminator’’ 

in this way, or buy a filter for this movie and basically use the 

names, use the likenesses, use the subscription of the films without 

ever having to compensate the film makers? 

Mr. BERMAN. It certainly would, unless this bill is amended to 

strip that right from these people. And in addition, it contains a 

provision prohibiting Federal courts from hearing first amendment 

cases. No, it would certainly allow that. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. BERMAN. Yes. 

Chairman SENSENBRENNER. The Chair recognizes the gentleman 

from Texas, Mr. Terminator. 

Mr. SMITH. Thank you, Mr. Chairman. I oppose the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SMITH. I really do have some difficulty understanding the 

reasoning behind the amendment. It seems to say—— 

Mr. BERMAN. Would the gentleman yield? I would like to repeat 

the reasoning. 

Mr. SMITH. It seems to say that American intellectual property 

laws that allow directors and studios to profit from their work for 

95 years do not apply to those who create other forms of intellectual property. I recognize that some in Hollywood disagree with 

what companies like ClearPlay and others are doing, and that is 

certainly their right. But should we then stop such companies from 

offering their technology to interested parents by legislating a taking of a company’s intellectual property? 

I have not seen any justification as to why this Committee 

should legislate the taking of someone else’s intellectual property 

simply because someone in Hollywood doesn’t like them. What is 

good for the goose is good for the gander. Perhaps we should require movie studios to offer free licenses to all who want to watch 

their movies because some people this country don’t like the movies 

made in Hollywood. I urge my colleagues to oppose the amendment. 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. I would like to observe that on a Committee of 37 

men and women, all but four of whom are lawyers, how we could 

be taking a matter that has been filed in a Federal court since August 2002—and we know that negotiations are ongoing—and 

passed a law dealing with the specific issues that are in the litigaVerDate Aug 04 2004 00:51 Sep 09, 2004 Jkt 029006 PO 00000 Frm 00035 Fmt 6659 Sfmt 6601 E:\HR\OC\HR670.XXX HR670
36 

tion is beyond me. Can any Member in this case explain to me why 

we are doing this? This is so exceptional that I would seek an explanation if there is one. And I would yield to anyone. 

Mr. BERMAN. Thank you, John. 

My friend, the Chairman of the Subcommittee’s point, you made 

my point. I view this bill as a taking. This is not simply about what 

is cut, what is obliterated from the creator’s work, it is about 

whether the creator is entitled to any stream of revenue for the altered version of his work. And you will—I am saying if it is good 

for the goose, it is good for the gander. If you are going to have 

a taking of the creator’s artistic rights and the copyright owner’s 

rights, then let’s have a compulsory royalty-free license for the creators of this technology, because our goal is to protect the children. 

Chairman SENSENBRENNER. The question is on the Berman 

amendment to the amendment in the nature of a substitute. 

Those in favor will say aye. 

Opposed, no. 

Noes appear to have it. Noes have it. The amendment amount 

is not agreed to. 

Mr. BERMAN. Move to strike the last word. 

Chairman SENSENBRENNER. We are running out of time. 

Mr. BERMAN. I am going to have raise one issue. Then we will 

go to a vote. 

The CHAIRMAN. The gentleman is recognized for 5 minutes. 

Mr. BERMAN. Thank you, Mr. Chairman. There is a concern that 

hasn’t been raised by any amendment, that I will not offer as an 

amendment, that while this is entitled the Family Movie Act, it 

covers more than movies, could cover live over-the-air television 

programming, and that it immunizes from liability companies that 

manufacture technology to edit TV programs, including commercial 

stripping. 

In other words, this might, this bill might well legalize the elimination of a fairly common business model, which is over-the-air 

commercial television. And without trying to debate that issue now, 

I am just wondering if the Chairman might be willing to consider 

working through this issue to see if—what his intent would be with 

respect to that possibility. 

Chairman SENSENBRENNER. Would the gentleman yield? 

The answer is yes, we will in work to consider this, with no 

promises being made as to a result. 

Mr. BERMAN. Well, that is quite an offer. Maybe I can keep you 

engaged. 

Chairman SENSENBRENNER. The Chair is always happy to be engaged with the gentleman from California. 

If there are no further amendments, without objection, the Subcommittee amendment in the nature of the substitute laid down as 

the base text is amended as adopted. A reporting quorum is 

present. 

The question occurs on the motion to report the bill, H.R. 4586, 

favorably, as amended. 

All in favor will say aye. 

Opposed, no. 

Ayes appear to have it. 

Mr. BERMAN. rollcall. 

37 

Chairman SENSENBRENNER. A rollcall is ordered. Those in favor 

of reporting the bill favorably, as amended, will answer aye. Those 

opposed will answer no. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. 

Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

[No response.] 

The CLERK. Mr. Hostettler. 

[No response.] 

The CLERK. Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Mr. Keller. 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. 

Ms. Hart. 

Ms. HART. Aye. 

The CLERK. Ms. Hart, aye. 

Mr. Flake. 

[No response.] 

The CLERK. Mr. Pence. 

[No response.] 

The CLERK. Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Carter. 

Mr. CARTER. Aye. 

The CLERK. Mr. Carter, aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

38 

Mrs. Blackburn. 

Mrs. BLACKBURN. Aye. 

The CLERK. Mrs. Blackburn, aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. 

Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. 

Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

[No response.] 

The CLERK. Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

Mr. Watt. 

Mr. WATT. Pass. 

The CLERK. Mr. Watt, pass. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. 

Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. 

Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. No. 

The CLERK. Ms. Baldwin, no. 

Mr. Weiner. 

[No response.] 

The CLERK. Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Ms. Sanchez. 

Ms. SANCHEZ. No. 

The CLERK. Ms. Sanchez, no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Members in the chamber who wish 

to cast or change their vote? If not, the clerk will report. 

The gentleman from North Carolina, Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Hostettler. 

39 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

The CLERK. There are 18 ayes, and 9 noes. 

Chairman SENSENBRENNER. The motion to report favorably, as 

amended, is agreed to. Without objection, the bill will be reported 

favorably to the House in the form of a single amendment in the 

nature of a substitute incorporating the amendments adopted here 

today. 

Without objection, the Chairman is authorized to go to conference pursuant to House rules. Without objection, the staff is directed to make any technical and conforming changes. 

All Members will be given 2 days as provided by House rules in 

which to submit additional dissenting, supplemental, or minority 

views. 

The purpose for which this meeting has been called having been 

accomplished, the Committee stands adjourned. 

[Whereupon, at 12:00 p.m., the Committee was adjourned.] 

(41) 

1 H.R. 4586, the ‘‘Family Movie Act of 2004,’’ 108th Cong., 2d Sess. (2004). The bill’s proponents refer to movies that have been sanitized of what they consider to be offensive content 

as ‘‘family friendly.’’ 2See Derivative Rights, Moral Rights, and Movie Filtering Technology: Hearing Before the 

Subcomm. on Courts, the Internet, and Intellectual Property of the House Comm. on the Judiciary, 108th Cong., 2d Sess. 86 (May 20, 2004) (written statement of Taylor Hackford, Directors 

Guild of America) [hereinafter May 20, 2004 Hearing]. 3Family Movie Act of 2004: Hearing on H.R. 4586 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the House Comm. on the Judiciary, 108th Cong., 2d Sess. 67– 

70 (June 17, 2004) (statement of Jack Valenti, President and Chief Executive Officer, Motion 

Picture Ass’n of America) [hereinafter H.R. 4586 Hearing] 4Declaration of Dean Robert Rosen In Support of the Director Parties’ Opposition to 

ClearPlay, Inc.’s, Trilogy Studios, Inc.’s, and Family Shield Technologies, LLC’s Motion for Summary Judgment, Huntsman v. Soderbergh (D. Colo.) (02–M–1662) [hereinafter Rosen Decl.]. 5 H.R. 4586 Hearing at 6 (statement of Marybeth Peters, Register of Copyrights). 

DISSENTING VIEWS

We strongly oppose H.R. 4586, the ‘‘Family Movie Act of 2004.’’ 

With the purported goal of sanitizing undesired content in motion 

pictures, H.R. 4586 immunizes from copyright and trademark liability any for-profit companies that develop movie-editing software 

to make content imperceptible without permission from the movies’ 

creators.1 H.R. 4586 takes sides in a private lawsuit, interferes 

with marketplace negotiations, fails to achieve its goal, is unnecessary and overbroad, may increase the level of undesired content, 

and impinges on artistic freedom and rights. 

The bill’s proponents would have us believe that this bill is about 

whether children should be forced to watch undesired content, but 

it is not. The issue in this debate is who should make editorial decisions about what movie content children see: parents or a forprofit company. Supporters of H.R. 4586 believe companies should 

be allowed to do the editing for profit, and without permission of 

film creators, while opponents believe parents are the best qualified to know what their children should not see. The legislation 

would accomplish little beyond inflaming the debate over indecent 

content in popular media and interfering with marketplace solutions to parental concerns. 

That is why H.R. 4586 is opposed by: (1) entities concerned with 

the intellectual property and artistic rights of creators, including 

the Directors Guild of America,2 the Motion Picture Association of 

America,3 and the Dean of the UCLA Film School; 4 and (2) experts 

on copyright law, such as the Register of Copyrights.5

A. H.R. 4586 WOULD IMPROPERLY INTERFERE WITH PENDING LITIGATION AND PREMATURELY TERMINATE MARKETPLACE NEGOTIATIONS

TO SETTLE THE DISPUTE

As a preliminary matter, the legislation is inappropriate because 

it not only addresses the primary issues in a pending lawsuit but 

also takes sides with one of the parties to that suit. The U.S. District Court for the District of Colorado currently has before it a 

case that began as an action brought by a company called Clean 

42 

6 Huntsman v. Soderbergh, No. 02–M–1662 (D. Colo. filed Aug. 29, 2002). The parties are 

awaiting a ruling on a motion for summary judgment. 7 Complaint and Jury Demand, Huntsman v. Soderbergh (D. Colo.) (No. 02–M–1662). 8 ClearPlay has fourteen filter settings: (1) strong action violence, (2) gory/brutal violence, (3) 

disturbing images (i.e., macabre and bloody images), (4) sensual content, (5) crude sexual content, (6) nudity (including art), (7) explicit sexual situations, (8) vain references to deity, (9) 

crude language and humor, (10) ethnic and racial slurs, (11) cursing, (12) strong profanity, (13) 

graphic vulgarity, and (14) explicit drug use. 9See The Player Control Parties’ Opening Brief in Support of Their Motion for Summary 

Judgment, Huntsman v. Soderbergh (D. Colo.) (No. 02–M–1662). Section 106(2) of title 17, 

United States Code, gives to authors the exclusive right to ‘‘prepare derivative works based on 

the copyrighted work.’’ The Copyright Act further defines a ‘‘derivative work’’ as ‘‘a work based 

upon one or more preexisting works, such as a translation, musical arrangement, dramatization, 

fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work 

consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a 

whole, represent an original work of authorship, is a ‘derivative work.’ ’’ 17 U.S.C. § 101. 

The Register of Copyrights has testified as to her opinion about the copyright issues involved 

in the case. The Register believes that infringement of the exclusive right under 17 U.S.C. 

§ 106(2) to make derivative works requires creation of a fixed copy of a derivative work. H.R. 

4586 Hearing at 7. While the Register’s opinion clearly bears much authority, it is neither binding on a court nor dispositive of the pending lawsuit. Due to the novelty of both the legal and 

technological issues involved, the court may very well reach a different conclusion from that 

drawn by the Register. 10See The Player Control Parties’ Opening Brief in Support of Their Motion for Summary 

Judgment, Huntsman v. Soderbergh (D. Colo.) (No. 02–M–1662). 

Flicks against directors of movies.6 Clean Flicks sought a declaratory judgment against several directors that its business practice of 

providing edited versions of movies to consumers does not violate 

the rights of those who own the copyrights and trademarks for the 

original movies.7

In the course of litigation, the number of parties expanded. Because Clean Flicks claimed that its conduct was lawful under the 

Copyright Act, the directors sought to join the movie studios in the 

dispute. In addition, a Utah-based company known as ClearPlay 

joined on the side of Clean Flicks. ClearPlay employees view motion pictures and create software filters that tag scenes they find 

offensive in each movie; this editing is done without notice to or 

permission from the copyright owners (the movie studios) or movie 

directors.8 When downloaded to a specially-adapted DVD player, 

the ClearPlay software filter instructs the player to ‘‘skip and 

mute’’ the tagged content when the affiliated DVD movie is played. 

Consumers who play a DVD they have rented or purchased would 

thus not see or hear the scenes that ClearPlay has tagged for filtering. 

The bill directly addresses copyright and trademark issues raised 

in the case and inappropriately takes the side of one party. First, 

the content creators allege in the lawsuit that ClearPlay makes derivative works in violation of the Copyright Act; in particular, they 

argue ClearPlay’s editing software violates their exclusive rights as 

movie copyright owners to make modifications or other derivations 

of the original movies.9

Though no court has ruled on this issue, the bill would assist 

ClearPlay by preemptively vitiating this legal claim. It would 

amend the law to state that certain technology which makes portions of motion picture content imperceptible during playback does 

not violate copyright law. While not benefitting Clean Flicks and 

certain other defendants, the bill is specifically designed to legalize 

ClearPlay technology. 

Second, film directors claim that ClearPlay violates their trademark rights under section 43(a) of the Lanham Act.10 The directors 

43 

11See 15 U.S.C. § 1125(a)(1). 12Despite the extremely complicated nature of these negotiations, they had proceeded quite 

far. In December 2003, the DGA agreed not to object under its collective bargaining agreement 

if the studios offered ClearPlay a license to utilize the edits contained in television and airplane 

versions of movies. The DGA believed this compromise was tolerable because a film’s director 

usually makes the necessary edits for television and airplane versions and is able to control the 

integrity of such edited versions. Over the course of the next several months, the studios conveyed an offer along these lines to ClearPlay. 

More recently, ClearPlay presented the studios with a counteroffer. The studios forwarded this 

counteroffer to the DGA for its response. In a May 29, 2004 response, the DGA relaxed certain 

limitations on a previous agreement to allow ClearPlay to license the television and airplane 

versions of movies. Rather than accept this offer, or present a good-faith counteroffer, ClearPlay 

apparently has enlarged its demands: (1) for movies where, no airplane or television version is 

available, it has sought the ability to edit them; and (2) with regard to films for which television 

or airplane versions have been made available, it is asking that it be able to make its own edits, 

rather than use the pre-existing edited versions. 

allege that ClearPlay uses their trademarked names in a way that 

is likely to cause confusion as to the affiliation, connection, or association of ClearPlay with the director, or as to the origin, sponsorship, or approval of ClearPlay by the director.11 Their allegation is 

based on the fact that a ClearPlay-sanitized film still indicates the 

name of the director, making it incorrectly appear as if the director 

has approved the sanitized version. 

As with the copyright claims against ClearPlay, the bill would 

usurp judicial consideration of the trademark claims against 

ClearPlay by legalizing the very conduct at issue in the pending 

litigation. The bill would make it legal under trademark law to sell 

a product that alters a work and then still attribute that work to 

the original’s creator. The effect would again be to specifically benefit one party, ClearPlay, to the detriment of all others involved in 

pending litigation. 

In summary, the directors and movie studios have non-frivolous 

legal claims against ClearPlay. Because the case has not proceeded 

past the most preliminary stages at the trial level, there has not 

been any statutory interpretation, let alone a problematic one, that 

would justify a legislative solution. In other words, the law has yet 

to be interpreted in this area, so there is no rational basis for Congress to pass legislation that eliminates certain copyright and 

trademark rights that are at issue between specific parties. 

Passage of this legislation is even more problematic considering 

that, over the past year, movie creators have negotiated in good 

faith to settle their dispute with ClearPlay. The movie creators had 

offered ClearPlay terms that would allow it to deploy its technology 

without fear of copyright or trademark liability.12 Unfortunately, 

due to the two hearings on this issue and the movement of H.R. 

4586, those negotiations have stalled; ClearPlay has been 

emboldened to present several new demands that represent a significant step back from its previous positions. The growing prospects for a legislative fix have caused ClearPlay to abandon goodfaith negotiation and have made it less likely that consumers will 

have the choices the bill’s proponents allegedly desire. 

In short, fundamental fairness prohibits Congress from passing 

legislation to influence a pending case and private business negotiations. As a matter of equity, it is unfair to change the rules in 

the middle of the game, particularly to help one specific entity; if 

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44 

13See H.R. 4586 Hearing at 8 (statement of Marybeth Peters, Register of Copyrights) (‘‘I do 

not believe that such legislation should be enacted—and certainly not at this time. As you know, 

litigation addressing whether the manufacture and distribution of such software violates the 

copyright law and the Lanham Act is currently pending in the United States District Court for 

the District of Colorado. A summary judgment motion is pending. The court has not yet ruled 

on the merits. Nor has a preliminary injunction been issued—or even sought.’’) 14 H.R. 4586 Hearing at 9 (written statement of Marybeth Peters) (emphasis added). 15Motion Picture Ass’n of America, Movie Rating System Celebrates 34th Anniversary with 

Overwhelming Parental Support (Oct. 31, 2002) (press release). The industry has five rating categories: G for General Audiences, PG for Parental Guidance Suggested, PG-13 for Parental Caution Suggested for children under 13, R for Restricted (parent or guardian required for children 

under 17), and NC-17 for No Children 17 and under admitted. 16 In 1999, filmmakers released 14 G-rated and 24 PG-rated major motion pictures. In 2000, 

there were 16 G-rated and 27 PG-rated films. In 2001, 8 G-rated and 27 PG-rated movies were 

released. In 2002, 12 G-rated and 50 PG-rated pictures were distributed. Finally, in 2003, 11 

G-rated and 34 PG-rated motion pictures were released. 17 H.R. 4586 Hearing at 15 (statement of Amitai Etzioni, Founder and Director, The Institute 

for Communitarian Policy Studies, George Washington University). 

ness. For these reasons, H.R. 4586 should not be considered while 

litigation is pending.13

B. H.R. 4586 IS UNNECESSARY

Regardless of the outcome of the pending litigation, this legislation should not be brought before the House because it is unnecessary. Its supposed rationale is to make it easier for parents and 

children to avoid watching motion pictures with undesired content, 

but parents and children already have such options. 

At the outset, there is an obvious marketplace solution to 

undesired content in that consumers can merely elect not to view 

it. As the Register of Copyrights testified: 

I cannot accept the proposition that not to permit parents to 

use such products means that they are somehow forced to expose their children (or themselves) to unwanted depictions of 

violence, sex and profanity. There is an obvious choice—one 

which any parent can and should make: don’t let your children 

watch a movie unless you approve of the content of the entire 

movie.14

The motion picture industry has even enhanced the ability of 

consumers to exercise this choice. For decades and on a voluntary 

basis, it has implemented a rating system for its products that indicates the level of sexual or violent content and the target audience age.15 Each and every major motion picture released in theaters or on DVD or VHS bears such a rating. Such ratings effectively enable parents to steer their children away from movies they 

consider inappropriate. 

Most importantly, the film rating system enable parents to identify movies that they consider appropriate for their children, and 

the industry has acted to make this choice meaningful. The industry annually releases dozens of films geared toward audiences who 

do not wish to see sexual, violent, or profane content.16 As a result, 

it is clear that the movie industry provides parents with abundant 

opportunity to find films they will consider appropriate for their 

children. The movie industry has, therefore, already met the request of an H.R. 4586 supporter who looked forward to a day when 

‘‘the industry will get around to issue us age-appropriate products.’’ 17

45 

18May 20, 2004 Hearing at 20 (statement of Jeff J. McIntyre, Senior Legislative and Federal 

Affairs Officer, American Psychological Ass’n). 19FEDERAL TRADE COMM’N, MARKETING VIOLENT ENTERTAINMENT TO CHILDREN: A FOURTH

FOLLOW-UP REVIEW OF INDUSTRY PRACTICES IN THE MOTION PICTURE, MUSIC RECORDING &

ELECTRONIC GAME INDUSTRIES 10 (July 2004). 20David Pogue, Add ‘‘Cut’’ and ‘‘Bleep’’ to a DVD’s Options, N.Y. TIMES, May 27, 2004, at G1. 

While some of the bill’s supporters say these choices are meaningless on the grounds that the entertainment industry markets 

violent and sexual content to youth,18 that claim is false according 

to the most recent and objective report. The Federal Trade Commission conducted the most recent study on this issue and concluded the following: 

On the whole, the motion picture industry has continued to 

comply with its pledge not to specifically target children under 

17 when advertising films rated R for violence. In addition, the 

studios generally are providing clear and conspicuous ratings 

and rating information in advertisements for their R- and PG13 rated films.19

The industry is, therefore, doing its part to keep undesired content 

away from children. 

The facts demonstrate that parents have the information and 

tools necessary to make and enforce informed choices about the 

media their children experience and have plenty of wholesome 

media alternatives to offer their children. 

C. H.R. 4586 WOULD LEGALIZE EDITING THAT IS INCOMPREHENSIBLE

AND OVERBROAD AND WOULD LEAD TO AN INCREASE IN UNDESIRED

CONTENT

H.R. 4586 would lead to editing that is inconsistent, overbroad, 

and counterproductive. First, ClearPlay does not screen out the 

content it purportedly is designed to filter. The New York Times 

found that ClearPlay’s editing does not conform to its own standards: 

For starters, its editors are wildly inconsistent. They duly 

mute every ‘‘Oh my God,’’ ‘‘You bastard,’’ and ‘‘We’re gonna 

have a helluva time’’ (meaning sex). But they leave intact various examples of crude teen slang and a term for the male 

anatomy. 

In ‘‘Pirates of the Caribbean,’’ ‘‘God-forsaken island’’ is bleeped, 

but ‘‘heathen gods’’ slips through.20

In this regard, ClearPlay is seemingly ineffective, and the legislation would be, as well. 

Second, the legislation is overbroad and would go beyond its allegedly intended effects of legalizing tools for sanitizing movies of 

sex, violence, and profanity. In fact, H.R. 4586 would legalize a far 

wider and less desirable universe of filters for profit than its sponsors have disclosed. Filters could be based on social, political, and 

professional prejudices and could edit more than just movies. 

For instance, because the bill is not explicitly limited to the deletion of sex, violence, and profanity, it would legalize socially-undesirable editing, such as: 

46 

21 ClearPlay actually has made such edits. ‘‘In its alterations of the film, ClearPlay chooses 

to omit the racist language [used by white police officers against a young Rubin Carter] that 

is integral to our understanding of the story. . . . ClearPlay skips these lines in full, choosing 

to fast-forward its version of the movie to a later part of the interrogation scene. However, it 

is via this racist and threatening language that the audience connects with the intimidation that 

the young Carter must feel and the racism he is encountering at the very center of law enforcement.’’ Rosen Decl., supra note 4, at 6–7. 22See Markup of H.R. 4586 Before the House Comm. on the Judiciary, 108th Cong., 2d Sess. 

(July 21, 2004) (amendment offered by Rep. Adam Schiff (D-CA) to limit editing to profane, sexual, and violent content) [hereinafter H.R. 4586 Markup]. The amendment was defeated by voice 

vote. Id. 23 H.R. 4586 Markup (statement of Rep. Lamar Smith (R-TX)). 24 H.R. 4586. 25 17 U.S.C. § 101. 

• A filter that edits out racial conflict between law enforcement and minorities in The Hurricane, conflict that sets the 

context for how the minorities later react to the police; 21

• A filter that skips over the nude scenes from Schindler’s 

List, scenes that are critical to conveying the debasement 

and dehumanization suffered by concentration camp prisoners; 

• A filter that strips Jungle Fever of scenes showing interracial 

romance and leaves only those scenes depicting interracial 

conflict; and 

• A filter marketed by Holocaust revisionists that removes 

from World War II documentaries any footage of concentration camp. 

The legislation also would immunize products that filter political 

or business content based on the opinions of the creator, including: 

• A filter that skips over political advertisements contrary to 

the positions of the developer’s beliefs; 

• A filter that cleanses news stories, such as by editing out 

comments in support of or in opposition to government policies; and 

• A filter that deletes television stories either helpful to the filter developer’s competitor or critical of the developer’s corporate parent. 

We would hope that none of the bill’s proponents would condone 

such malicious editing. Unfortunately, at the full Committee markup of the legislation, the sponsors rejected an effort to limit the 

proposal to its purported scope of profane, sexual, and violent content.22 If enacted, H.R. 4586 could lead to the editing of artistic 

works based upon racial, religious, social, political, and business biases. 

Moreover, the bill would permit the editing of works other than 

movies. While the bill’s author argues that its purpose is to sanitize 

movies,23 a close reading of the legislation shows that it would permit the editing of broadcast television programming, as well. More 

specifically, H.R. 4586 permits the ‘‘making of limited portions of 

audio or video content of a motion picture imperceptible.’’ 24 The 

copyright law defines ‘‘motion pictures’’ as ‘‘audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying 

sounds, if any.’’ 25 Because this definition includes television proVerDate Aug 04 2004 00:51 Sep 09, 2004 Jkt 029006 PO 00000 Frm 00046 Fmt 6601 Sfmt 6601 E:\HR\OC\HR670.XXX HR670
47 

26 H.R. REP. NO. 1476, 94th Cong., 2d Sess. (1976) (House report on the 1976 Copyright Act). 27 In the Matter of Commission Seeks Public Comment on Spectrum Policy Task Force Report: 

Joint Reply Comments of the Association for Maximum Service Television, Inc. and the National 

Association of Broadcasters Before the Federal Communications Comm’n, ET Docket No. 02–135 

13 (Feb. 28, 2003). 28 Using CustomPlay, ‘‘[a]n adult can play a version of an adult video that seamlessly excludes 

content inconsistent with the viewer’s adult content preferences, and that is presented at a level 

of explicitness preferred by the adult. Adult content categories are standardized and are organized into five groups Who, What, Camera, Position, and Fetish.’’ CustomPlay, Content Preferences (visited Aug. 24, 2004) <http://www.customplay.com/mccontent.htm>. 29 Nissim Corp. v. ClearPlay, No. 04–21140 (S.D. Fla. filed May 13, 2004). 30 In response to a cease-and-desist letter from Nissim, a manufacturer of DVD players, Thomson, pulled ClearPlay-enabled players from the retail market. 31SAM RICKETSON, THE BERNE CONVENTION: 1886–1986 456 (1997) (‘‘Any author, whether he 

writes, paints, or composes, embodies some part of himself—his thoughts, ideas, sentiments and 

feelings—in his work, and this gives rise to an interest as deserving of protection as any of the 

other personal interests protected by the institutions of positive law, such as reputation, bodily 

integrity, and confidences. The interest in question here relates to the way in which the author 

presents his work to the world, and the way in which his identification with the work is maintained.’’). 32 NATIONAL ENDOWMENT FOR THE ARTS, STRATEGIC PLAN: FY2003–2008 3 (Feb. 2003). 

grams,26 the legislation would permit editing of broadcast television. 

As a result, the bill would legalize a filter that skips, for instance, all commercial advertisements during playback of free, 

over-the-air broadcast television programming. The revenues that 

broadcast television companies generate from selling commercial 

advertisement time is the sole means by which television programming is financed.27 Permitting television commercials to be deleted 

would reduce the ability of television programmers to sell ad time 

and thus make it financially difficult for television stations to remain in business. Consumers across the country would thus be deprived of a prime and free source of news, entertainment, and other 

information. 

Finally, the legislation could lead to increased violence and sexual content in entertainment. Just as H.R. 4586 allows nudity to 

be edited out, it allows everything except nudity to be deleted. This 

concern is not merely hypothetical. Nissim Corporation has patented a technology called CustomPlay that, among other things, enables viewers of pornographic movies to filter out the non-pornographic scenes and ‘‘enhance’’ the adult-viewing experience.28

Additionally, because H.R. 4586 only protects technology developers like ClearPlay from liability for copyright and trademark infringement, Nissim may cause the bill to backfire on its sponsors. 

Nissim has sued ClearPlay for patent infringement, claiming to 

have a patent on ClearPlay-type film-editing technology.29 If 

Nissim’s claims are valid, then only Nissim could distribute such 

film-editing software.30 Thus, contrary to its stated purpose, H.R. 

4586 could succeed in legalizing only Nissam’s technology, which 

enables users to increase the proportion of sex or violence in a 

movie. 

D. H.R. 4586 WOULD IMPAIR ARTISTIC FREEDOM AND INTEGRITY

The problems with this legislation are compounded by the fact 

that it violates principles of artistic freedom and expression. The 

concept of protecting artistic freedom is well recognized.31 The National Endowment for the Arts states ‘‘[a]rtistic work and freedom 

of expression are a vital part of any democratic society.’’ 32 For this 

48 

33 Id. at 8. 34 Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, 1971. 35 17 U.S.C. § 106A. 36 15 U.S.C. § 1125. 37 133 CONG. REC. H1293 (daily ed. Mar. 16, 1987) (statement of Rep. Robert Kastenmeier). 38 H.R. 4586 Hearing at 10 (written statement of Marybeth Peters). 

reason, the NEA seeks to preserve works of art,33 and an important part of preservation is to ensure artists are involved in how 

their creations are portrayed. 

This principle, commonly referred to as a ‘‘moral right,’’ is so important that it is required by international agreements and is codified in U.S. law. For instance, the Berne Convention for the Protection of Literary and Artistic Works grants creators the right to object to ‘‘any distortion, mutilation, or other modification of, or other 

derogatory action in relation to, the said work, which would be 

prejudicial to his honor or reputation.’’ 34 The United States, recognizing the importance of this right, subsequently enacted it into 

both copyright law 35 and trademark law.36

While moral rights protection for U.S. creators is far weaker 

than the protection afforded European creators, a certain level of 

protection for the moral rights of U.S. creators does exist. The ability of creators to bring claims under the Lanham Act, just as directors have done against ClearPlay, does provide creators with an 

important ability to protect their moral rights. In fact, the availability of section 43(a) was one of the specific reasons Congress decided, during adoption of the Berne Convention Implementation 

Act, that U.S. law met the moral rights obligations contained in the 

Berne Convention.37 By limiting the availability of Lanham Act 

suits, H.R. 4586 is limiting the moral rights of directors in a way 

that conflicts with U.S. obligations under the Berne Convention. 

Contrary to our laws and international obligations, H.R. 4586 

does not require that filtering be done with the permission of the 

content creator or owner, but rather creates an exemption from 

copyright and trademark liability for filtering. As the Register of 

Copyrights stated before the Subcommittee: 

I have serious reservations about enacting legislation that permits persons other than the creators or authorized distributors 

of a motion picture to make a profit by selling adaptations of 

somebody else’s motion picture. It’s one thing to say that an individual, in the privacy of his or her home, should be able to 

filter out undesired scenes or [dialogue] from his or her private 

home viewing of a movie. It’s another matter to say that a forprofit company should be able to commercially market a product that alters a director’s artistic vision.38

It is clear, therefore, that the legislation violates an artist’s right 

to his or her artistic integrity. To permit editing of a creation without the permission of the creator is to encourage censorship and to 

vitiate freedom of expression. 

In conclusion, H.R. 4586 is ill-conceived, poorly-drafted legislation. Beyond its patent assault on intellectual property rights, the 

bill inappropriately involves Congress in a private business dispute 

and would lead to socially undesirable editing and actually permit 

the distribution of technology that makes pornography even more 

49 

pornographic. Finally, it encourages unwarranted intrusions into 

artistic freedom. For these reasons, we dissent. 

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

ROBERT C. SCOTT. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

WILLIAM D. DELAHUNT. 

ROBERT WEXLER. 

TAMMY BALDWIN. 

Æ