H.R. 2391: Part II

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The Prohibition That Wasn’t

Many places have reported that part of H.R. 2391 will make it a crime to fast-forward through a DVD or video. They have done so because some lobbying group says so.

It’s just not so. It’s not true. The provisions of the bill that allegedly do this don’t make ANYTHING illegal.

The truth is far more convoluted than that, but first, let me show you the exact language of the bill, (with some explanations in bold italics), so you can decide for yourself.

AUDIO AND VIDEO CONTENT IN MOTION PIC-
TURES.
(a) SHORT TITLE.—This section may be cited as the
‘‘Family Movie Act of 2004’’.

(b) EXEMPTION FROM COPYRIGHT AND TRADEMARK
INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO CON-
TENT OF MOTION PICTURES.—Section 110 of title 17,
United States Code, is amended—

(This section deals with specific activities that are deemed not to infringe copyright.
These items are usually non-commercial activities, or activities like playing music in
a small restaurant or bar, or playing music in the music section of a store. In other words,
anything put into this section is not a copyright infringement.)

(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’’;

These are just grammatical changes necessary to add a new paragraph to the section.

(3) by inserting after paragraph (10) the following:
‘‘(11) the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion
picture, during a performance in that household for
private home viewing, from an authorized pre-recorded copy of the motion picture, or the creation or
provision of a computer program or other technology
that enables such making imperceptible and that is
designed and marketed for such use at the direction
of a member of a private household, if no fixed copy
of the altered version of the motion picture is created by such computer program or other technology.’’; and

This section is meant to legalize the activities of certain companies that
basically edit the nasty stuff out of movies and sell either edited copies or some device
that does the same thing on the fly. Note, it makes something LEGAL. It doesn’t make anything
ILLEGAL.

The language could be read to include fast-forwarding, except that fast-forwarding doesn’t make
the fast-forwarded material “imperceptible,” but note that if you read the provision that way, this
provision would make fast-forwarding LEGAL, not ILLEGAL.

The reality is there is no Federal law saying that fast-forwarding is legal. Then again, there is no
Federal law saying that it’s illegal, either. Most of what you do is life has no law saying that it’s legal or illegal, either.
There is no law saying that it is legal for you to eat food, walk, or drink a Pepsi, and that certainly doesn’t
mean these activities are illegal.

(4) by adding at the end the following:

‘‘For purposes of paragraph (11)—
‘‘(A) the term ‘making imperceptible’ does not
include the addition of audio or video content that
is performed or displayed over or in place of existing
content in a motion picture; and

This means showing something else over the edited section. As you’ll see later, this is aimed at TiVo.
‘‘(B) the term ‘pre-recorded copy’ means a copy
of a motion picture that—

‘‘(i) is manufactured under the authority
of the copyright owner; and

‘‘(ii) has been made available for sale to
the public.’’.

(c) EXEMPTION FROM TRADEMARK INFRINGE-
MENT.—Section 32 of the Trademark Act of 1946 (15
U.S.C. 1114) is amended by adding at the end the fol-
lowing:

‘‘(3)(A) Any person who engages in the conduct de-
scribed in paragraph (11) of section 110 of title 17,
United States Code, and who complies with the require-
ments set forth in that paragraph is not liable on account
of such conduct for a violation of any right under this Act.
This subparagraph does not preclude liability of a person
for conduct not described in paragraph (11) of section 110
of title 17, United States Code, even if that person also
engages in conduct described in paragraph (11) of section
110 of such title.

Some may claim that this paragraph is the smoking gun which illegalizes
fast-forwarding. It doesn’t. It just doesn’t. All this says is that if you’re
doing something else illegal while using this technology, this exemption doesn’t cover you.

‘‘(B) A manufacturer, licensee, or licensor of technology that enables the making of limited portions of
audio or video content of a motion picture imperceptible
as described in subparagraph (A) is not liable on account
of such manufacture or license for a violation of any right
under this Act, if such manufacturer, licensee, or licensor
ensures that the technology provides a clear and conspicuous notice at the beginning of each performance that
the performance of the motion picture is altered from the
performance intended by the director or copyright holder
of the motion picture. The limitations on liability in subparagraphs (A) and (B) shall not apply to a manufacturer,
licensee, or licensor of technology that fails to comply with
this paragraph.

This provision is meant to require that anybody editing the nasty stuff out of movies provide notice that
this is what is happening. If you extend the meaning of this section to include fast-forwarding (which, as we’ve noted
is rather dubious), all any manufacturer has to do is provide a notice essentially saying, “If you fast-forward, you’re altering
the movie.”

‘‘(C) The requirement under subparagraph (B) to
provide notice shall apply only with respect to technology
manufactured after the end of the 180-day period beginning on the date of the enactment of the Family Movie
Act of 2004.’’.

(Manufacturers of the “take the naughty bits out” material have 180 days to add the notice.)

(d) DEFINITION.—In this section, 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’’, ap-
proved July 5, 1946 (15 U.S.C. 1051 et seq.).

That’s it; that’s all they wrote. Do you see anything being made illegal here?

No?

If you’d like to see some more, you can see the comments made in the Congressional Record, here and here, and it’s clear that the purpose of this bill is to protect those naughty-bit-removers (they’re being sued at the moment). It’s true that language in bills can take on different meanings, but as we’ve seen, even if you liberally interpret the language, the worst you can say is that recorder/players will have to tell you that you’re missing something when you hit the fast forward button.

So what’s really going on here?

The Real Story…

The Real Story

First, the people spreading this story, PublicKnowledge.org, is, to put it mildly, biased on this subject. They say that they’re not against copyright, but you’ll look long and hard to find an instance in which they are in favor of protecting the copyright holder.

They have the perfect right to do that and advocate their point of view, just understand they’re as biased as the RIAA or MPAA on the other side of the argument.

What is really going on is as follows:

1) Broadcasters really don’t like the ability of devices like Replay TV when they enable viewers to entirely skip (as in “skip thirty seconds” as opposed to fast-forward through thirty seconds) recordings. There’s been some lawsuits, and some changes made by these companies as to these capacities.

Not that companies like TiVo are adverse to advertising, indeed, in a couple months, TiVo plans to put up its own ads during the time you’re fast-forwarding through someone else’s. (That’s why there’s that little provision saying that showing something else over a skipped section is no good; it’s meant to stop this.)

2) A few movie makers apparently want you to see promotional ads every time you view the DVD of their movie, so a few of them have wired the DVD that way.

3) In the last couple years, the naughty-bit removers went into business. The content creators didn’t like what they were doing and sued them. So some obliging Congressman who liked what they were doing decided to specifically make what they were doing inarguably legal.

The operative sections of the original “Family Movie Act of 2004” read as follows (you don’t really need to read this, if you’ll take my word on what it says, just skip the stuff in italics):

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.’.

Yes, the language is somewhat different than in the version now being considered in the Senate, but outside of the anti-TiVo provision, there’s no real difference between the two. Obviously, if you’re TiVo, you don’t like this one bit, but besides that, this current version is no different than the initial.

Yes, there is the “making this legal doesn’t make other illegal things legal” clause, and I wouldn’t doubt Hollywood had something to do with that, but that doesn’t make anything new illegal.

Now it’s quite possible that the movie makers and broadcasters are telling folks like ReplayTV and TiVo or hardware manufacturers that letting people edit a recording or DVD somehow violates copyright under current law.

You may think this is a bad idea, and I would agree, but this bill doesn’t make that idea law. In fact, if anything, the provisions of this bill weaken that argument. At worst, it changes nothing. What it does not, and I repeat, does not do is strengthen the argument, or make it law.

You might think it a good idea to have a provision specifically legalizing certain types of skips for ads, but that’s not in this bill. That doesn’t make all skipping illegal.

From all outward appearance, it looks like some advocacy firm that wants the bill defeated, period, are trying to do that by telling everyone that fast-forwarding will become a crime if this bill is passed.

It just isn’t so.

We’ll talk about the remaining provisions of the bill, and what we think of them tomorrow. I think you’ve had enough for today; I have. 🙂

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