Intellectual Property Copyright
Tug of War
by Dan Duncan
Over Memorial Day weekend, Star Wars: Episode III—Revenge of the
Sith turned around an otherwise lackluster year for the film industry.
Yet, just as the movie moguls basked in new triumph, they continued to sound
alarms over how technology has increased the threat of piracy.
Almost every legal and policy debate about copyright seems to be centered
on technology and piracy. In last month’s issue, I noted that the copyright
community—both owners and users—has been holding its collective
breath while refining lobbying strategies in anticipation of the Supreme Court’s
decision about the legality of P2P networks. But other developments in Congress
and the courts have already defined the copyright-technology matrix that is
sending shivers down the spines of Hollywood producers and directors while
renewing their resolve to battle how we access and use copyrighted works.
Last April, Congress passed the Family Entertainment and Copyright Act of
2005 (S.167), an amalgam of three bills from previous Congresses. Title I of
the bill sets out criminal penalties for recording motion pictures in
a movie theater, and Title III reauthorizes the National Film Preservation
Board. Title II, the Family Movie Act of 2005, however, establishes new standards
for exempting content-altering technologies from infringement.
The Threat of New Technology
The act arose in response to the case of Huntsman v. Soderbergh, which
was filed in 2002 and is apparently still pending before the U.S. District
Court for Colorado. The case involves technology companies that manufacture
and market filtering technologies for consumers to eliminate objectionable
content (violence, profanity, and nudity) from DVDs viewed at home. These technological
devices, such as ClearPlay, alter what viewers see when they play a disc on
a DVD player or DVD-ROM drive. Each software program corresponds to a specific
DVD that has been reviewed by ClearPlay, and the filter instructs the player
which film frames to mute or skip over without altering the content of the
The movie studios say these technologies violate their exclusive right to
create derivative works. Directors claim the devices violate their moral rights
to control the artistic integrity of their works—a concept more prevalent
in European law than in the U.S. and one that remains contentious for reciprocal
The new act effectively makes the Colorado case moot. It states that neither
individuals nor software manufacturers are liable for copyright infringement
if no permanent copy of the filtered movie is created. Similarly, the technology
companies cannot be held liable for violating any moral rights as long as they
clearly indicate before each viewing that the movie has been altered.
Fallout for the Technology Sector
This legislative defeat for the movie studios probably won’t be too
damaging to their bottom line—unless viewers start making and sharing
permanent copies of “sanitized” films. But copyright owners—despite
the billions of dollars they contribute to the national economy—may face
increasing difficulty in convincing Congress to restrain development of another
giant national economic engine—the technology sector.
Such congressional support could be crucial if the movie industry has any
hope of mitigating the effects of the May decision by the Court of Appeal for
the D.C. Circuit in American Library Association v. FCC, the flagship
broadcast case. Since 2002, the libraries and the motion picture industry had
been at odds over an FCC rule that would have required digital television receivers
and other devices manufactured after July 1, 2005, to include technology that
recognizes a code embedded by broadcasters. This code would prevent viewers
from redistributing (not “re-viewing”) a TV program after its conclusion.
The movie studios argued that the rule preserved consumers’ ability to
watch and record broadcasts in the sprit of the Sony Betamax standard, while
libraries argued that it would impinge on fair use, making it all but impossible
to use HDTV materials in distance learning.
Just 2 months before the rule was to become effective, the D.C. Circuit Court
determined that the FCC had exceeded its authority in its efforts to regulate
the use of consumer electronics products after broadcasts had ended. In other
words, because it didn’t deal with Betamaxes or VCRs, the FCC can’t
address computers and digital recorders.
The court avoided pronouncements about copyright and fair use. Still, the
decision is a blow to the movie and broadcast industries; it threatens their
ability to control how their copyrighted materials are used.
There’s no sign that the policy debates and lobbying campaigns over
copyright and technology are ending. You have to wonder whether Congress and
the courts don’t sometimes want to quote that once-famous southern Californian
Rodney King and ask, “Can’t we just all get along?”
Dan Duncan has been active in the information industry for
more than 20 years. His e-mail address is email@example.com.