Re: Family Entertainment and Copyright Act of 2005

Thank you Terry
THE SHRUB?
I have not heard that before, but I have been saving "A good wine needs no bush" for the appropriate opportunity Jim Brennan

On 4/21/05, Terry Carroll <carroll[_at_]tjc.com> wrote:
> 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 unpublished works (because these remedies are available only for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.
>
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Received on Tue Apr 26 2005 - 02:15:15 GMT