Family Entertainment and Copyright Act of 2005

From: Terry Carroll <carroll[_at_]tjc.com>
Date: Thu, 21 Apr 2005 16:25:01 -0400

On Tuesday, April 19, the US House of Representatives passed the Senate's 
bill S.167, the "Family Entertainment and Copyright Act of 2005."  
Presumably, this will be signed into law by the Shrub.  It hasn't gotten a 

lot of press coverage that I've seen, and most of that has been directed to Title II, the Family Movie Act of 2005, so I thought I'd post a short summary. This necessarily has some oversimplification (and unnecessarily has my opinionated bias, but it's my summary and I'll spin it the way I like) to fit into a relatively small mailing-list post; refer to the complete bill for authoritative text.

Title I is labeled the Artists' Rights and Theft Prevention Act of 2005, and has two main provisions. The first provision adds two new types of criminal copyright infringement.

The first new criminal liability is for in-theater videorecording or transmission of a movie. Now, if you take your camcorder into a theater and tape the movie, you're not only liable for a civil suit, but you can do prison time, as well. Associated with this, the bill provides immunity to theater operators who detain suspected infringers for questioning, or while they wait for the cops. Interestingly, the conjunction here is :or" not "and."

The other new criminal liability is for distributing copies of a "work being prepared for commercial distribution." "WBPfCD" is, by definition, limited to computer programs, musical works, motion pictures and other audiovisual works, and sound recordings; i.e., unauthorized pre-publication distribution of a mere book does not trigger this provision.

This continues the trend of adding criminal provisions for what were formerly civil infringements, first started when Congress, in the No Electronic Theft Act, added newspeak to define "financial gain" to cover things that were not financial gain.

The second main pfovision added by Title I is an interesting provision for
"pre-registration" of copyright. Some background on this: one of the odd
effects of section 412 as it currently exists is that it effectively denies statutory damages and attorney's fees for infringement of unpublished works (because these remedies are available only for unpublished works if they were registered at time of infringement; and generally, works are generally registered at or about publication time, often because they're not finalized until just prior to publication). The simple (and I think appropriate) way to fix this would be to simply delete section 412(1) and allow these remedies for unpublished works without regard for their registration, but this bill takes a more ornate approach.

Title I addresses this problem through the concept of "pre-registration." It directs the Copyright Office to promulgate regulations allowing for pre-registration of certain classes of unpublished works that the CO determines are often subject to pre-publication infringement. My expectation is that this will include at least the classes of works that were included in the definition of "work being prepared for commercial distribution," i.e., computer programs, musical works, motion pictures and other audiovisual works, and sound recordings.

The effect of a pre-registration is two-fold. First, it modifies the section 411 requirement for registration prior to filing suit, allowing pre-registration to satisfy this requirement. However, if the infringement commenced prior to publication or within two months of publication, the suit is dismissed if the copyright owner did not follow up with a standard registration, either within three months of publication or within one month of learning of the infringement. The other effect is that the remedies of statutory damages and attorney's fees are available for infringement of pre-registered works; again, so long as the copyright owner follows up with a full registration within three months of publication or one month of learning of the infringement.

The dismissal provision strikes me as overly harsh against the copyright owner under certain circumstances, and I suspect is an unintended consequence. For example, assume the following: a work is pre-registered on May 1, and infringement commences on May 15. The work is published on July 1. The copyright owner learns of the registration on August 1, but does not register until October 15. Note that the registration is neither within one month of learning of the infringement, nor within three months of publication.

Under these facts, as I read the Act, there is no right against the infringer, even for ordinary damages; the infringer gets off scott-free. Essentially, the Act allows for pre-registration, but the act of pre-registration imposes an obligation on the part of the copyright owner to timely register, at the risk of waiving any right to recover damages for the pre-registration infringement. I would counsel my clients to pre-register only if certain that they know they'll be able to follow up and fully register within three months of publication. (I confess that I've read through the bill only once, and it's possible I've misread something here. If someone has an alternate reading, I'm open to correction.)

Title II of the bill is the Family Movie Act of 2005. This is the part that's gotten most of the press attention. It adds a new exemption, as section 110(11), allowing for a mechanism to skip or mask objectionable parts of a work. The 110(11) adds an exception so that making a portion of a motion picture imperceptible at the direction of a member of a private household (and making technology that allows for this) is not an infringement. The exception does not allow for making fixed copies of the work; it only allows for skipping the portions on playback.

This is, essentially, the "Clearplay amendment." Clearplay is a company that makes DVD players that "know" about the content of certain movies, and can be set to skip the parts that Clearplay has determined are objectionable, for reasons of sexual content, profanity, or violence. The Directors Guild of America and several movie studios had sued Clearplay for this, and the enactment of the FMA pretty much puts that type of lawsuit to bed. It may not expressly end this particular lawsuit (the provision does not seem to be retroactive); but the directors and studios have clearly lost the war.

As I read it, this will have no effect on companies like Colorado's CleanFlicks, whose approach was to copy the DVD, editing it for content, and then renting out the edited copy. Also, the exception applies only to motion pictures; it would not cover, for example, a similar technology applied to audio CDs.

Title III, technically a non-copyright provision, is the National Film Preservation Act of 2005"; it reauthorizes the National Film Preservation Board and National Film Preservation Foundation, and updates the laws that relate to them.

Title IV, the "Preservation of Orphan Works Act" looks to me to be correcting an oversight in the Sonny Bono Copyright Term Extension Act. That bill, which added 20 years to the term of copyright, also added what is now section 108(h), allowing libraries and archives to make copies of
"orphan works" (essentially works that are no longer being sold and copies
of which cannot be obtained at a reasonable price) for preservation purposes during the 20-year extension period. Unfortunately, section 108, in what is now section 108(i), restricted almost all its provisions to exclude musical works; pictorial, graphical and sculptural works; and most motion pictures and other audiovisual works. Title IV amends section 108(i) to remove this restriction on section 108(h); in other words, the 108(h) archival exception now applies to all works, including musical works, PGS works, and motion pictures and other audiovisual works.

In my view, this is a good step, but does not go far enough. I'd rather that the 108(h) extension cover orphan works regardless of where they are in their copyright terms. It's no less important to preserve a work with 40 years left in its copyright than it is to preserve a work with 20 years left in its copyright. If it isn't preserved early, there might not be anything to preserve later. Received on Fri Apr 22 2005 - 00:25:01 GMT