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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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April 20, 2005

What, Exactly, Did Congress Propose to Legalize?

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Posted by Alan Wexelblat

A Reg headline caught my eye: Congress legalizes DVD censorship. *Blink* OK, that's not totally out of character, but what's up? The article, by Thomas C Greene, describes a bill called the Family Movie Act.

According to Greene, this bill "indemnifies any company that makes prudish versions of movies available without authorization." That sounds a lot like sharing remixes, which I know Congress won't go for. What means this "makes... available" anyway? So off I go to Thomas to read the bill. Unfortunately there are four versions in there, and it's not clear which one the House-Senate conference committee actually sent to the President's desk.

As far as I can glean, this bill legitimizes the unauthorized (by the original artists) creation of derivative works, so long as they're under a "family friendly" rubric and they're not resold for commerical purposes. The idea is not to produce a new DVD per se, but to permit technology, such as that made by companies like ClearPlay, that allows DVD players to show a different version of the DVD than might originally have been on the disk, for example by skipping past objectionable content, or overlaying G-rated audio. ClearPlay's current product involves "downloadable filter templates" that can automatically skip past "objectionable" content. According to the company site, the filters go on a movie-by-movie basis, so you download the specific filter for the movie you want to watch.

Unless there's something in the final bill that I missed (anyone have a link to it?) I don't see how this is censorship. My guess is that what you end up with is a lot like watching movies on airline flights. Greene does note (citing Marjorie Heins of the Free Expression Policy Project) that optional technologies have a distressing tendency to become mandates, such as Internet nanny filters in public libraries. Agreed that's a danger, but I still don't see a problem with the home consumer customizing the family viewing environment.

Update: Cory has a rant about this bill, and WIRED's story by Katie Dean provides a handy link into Thomas. Dean links to the House version of the bill. Thanks to commenter using the handle "joe" for these pointers.

Update 2: the story is also appearing on more conventional media, including Declan on CNET, and an unbylined AP story (here on siliconvalley.com). Declan points out that the draconian punishments in the bill would in theory permit authorities to target individual P2P users with remarkably high penalties for sharing a single movie. Pontification on the obvious decay of a society that treats "theft" of "virtual property" more severely than actual theft of real property are left as an exercise for someone else.

Comments (14) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. Seth Finkelstein on April 20, 2005 3:20 PM writes...

Oh no ... fooder for yet another go-around for "The meaning of censorship *is* ..." :-(

Permalink to Comment

2. joe on April 20, 2005 3:33 PM writes...

It looks like the same Bill Doctorow Cory pointed to earlier:
http://www.boingboing.net/2005/04/20/new_copyright_bill_p.html

and Wired has this story:
http://www.wired.com/news/politics/0,1283,67269,00.html

Permalink to Comment

3. Walt Crawford on April 20, 2005 3:37 PM writes...

You're not the only one who doesn't see this as censorship.

My only problem with this act is that it should not have been necessary: the MPAA should not be able to sue to keep you from watching a legally-purchased copy of a movie in the manner you choose, even if that involves paying someone else (ClearPlay) to suppress the bad bits.

Hmm. By that logic, any writer with copyrighted work posted on the Internet could presumably sue any censorware company that blanks out "bad words," even when that company's software is in use in a private home: After all, it's changing the copyrighted expression without the creator's consent.

(So is skipping a track on a CD. Would the RIAA sue if somebody like ClearPlay offered special CD players that automatically skip "the nasty songs" on CDs that it recognizes? Maybe I shouldn't ask that question...)

Permalink to Comment

4. Seth Finkelstein on April 20, 2005 4:12 PM writes...

Walt - the "sue any censorware company that blanks out "bad words,"" has been brought up before, but I doubt anybody would really do it.

Permalink to Comment

5. Branko Collin on April 20, 2005 5:56 PM writes...

So what if I have this peer-to-peer filter that turns the MP3 I am looking for into a family friendly version (that is: makes no changes whatsoever, just downloads it)? Would that be legal?

Permalink to Comment

6. Crosbie Fitch on April 20, 2005 7:41 PM writes...

Branko, I like your thinking. You may be on to something there... :-)

Permalink to Comment

7. luminous on April 20, 2005 10:02 PM writes...

"According to Greene, this bill "indemnifies any company that makes prudish versions of movies available without authorization." That sounds a lot like sharing remixes, which I know Congress won't go for."

Its not quite remixes. Its making some parts imperceptible. You can't change the order. You can just skip or silence. You can't even overwrite with other, more innocuous audio.

You also can't "black out" parts of scenes. If there's visuals you don't like, skipping them is all you're allowed to do.

A very cramped "remix."

Permalink to Comment

8. Fred von Lohmann on April 21, 2005 12:04 PM writes...

Whoa, there, cowboy. Not so fast. Before you conclude that there's a "derivative work" being made here, you might want to read the Intel amicus brief to the court in Denver that is handling the lawsuit against ClearPlay (which will presumably be dismissed once this bill is signed by the President).

That brief, and all the others, can be found EFF's webpage devoted to the case.

Also, there is a committee report on the bill that describes it in more detail, available through Thomas by plugging in the bill number (S.167).

Permalink to Comment

9. Neo on April 21, 2005 6:11 PM writes...

Seth wrote: "Walt - the "sue any censorware company that blanks out "bad words,"" has been brought up before, but I doubt anybody would really do it."

I would not be surprised by any lawsuit filed in the united states anymore.

I wonder if the reason this bill was passed, despite the serious flaw it has of promoting consumer rights even slightly, is to make that lawsuit go away before it can set a precedent that has a much bigger positive impact on consumer rights, which would be a nightmare for all the powers that be?

Permalink to Comment

10. Crosbie Fitch on April 21, 2005 7:24 PM writes...

You're right Neo. It's a case of "head 'em off at the pass".

But, how ironic that the very folk you'd expect to be on the side of repressing freedom of expression, are the ones that actually facilitate it.

Demand the freedom to bowdlerise, and you unwittingly demand the freedom to create a derivative.

Permalink to Comment

11. TomCS on April 21, 2005 8:51 PM writes...

The author of a work (or their successor as rights holder) has the right to determine how it is circulated and transmitted, and with that comes the right to block its bowdlerisation. If there are dirty words, it is because the copyright holder considers them integral to the work: only he/she can authorise an edited version, not a software manufacturer, or a religiously based pressure group.

If the language or substance of the Tropic of Cancer is in your view, as a parent or adult guardian, unsuitable in one or other respect for your teenager, your only legitimate response is to forbid access, not to offer your own bastardised version. Use the off switch. Bite the bullet and tell them that you don't think they are old enough, mature enough, or that the pastor wouldn't like it. Anything else is at the least dishonest. Keep your old copies of Playboy locked away.

I don't care if this reads uncomfortably into ad-blocking and the economics of US TV, it is a fundamental artistic right. Fair use allows you to excerpt, but not edit. And if the rights' owners have decided to release material in an environment which exposes you to ads, that is their right too. Tough. Buy the video, or wait for it to come on an ad free channel.

Permalink to Comment

12. Neo on April 22, 2005 3:47 AM writes...

Crosbie: Demand the freedom to what?

TomCS: Your notion of an "artistic right" is very peculiar. I don't see anything in the Progress Clause about artistic rights, other than that to "promote the progress of Science and useful Arts" artists will have "exclusive rights" to "their writings" for "limited times". The whole concept of a derivative work fails to even appear there. Others, such as Lessig, see a fundamental right to remix in the implications of the Progress Clause.

The purpose of the limited time of exclusive rights is to incentivize progress, no more. It is definitely not to prevent the creation of "unauthorized derivative works".

I would agree however that passing off an altered version as original is wrong. Apparently, television networks agree when they air a movie during prime time and announce beforehand (sometimes even after every ad break) that it's "edited for content". Rules probably require them to disclose this fact. Likewise when videotapes or televised movies announce that they've been "formatted to fit your screen".

Permalink to Comment

13. Crosbie Fitch on April 22, 2005 4:18 AM writes...

Yes, the fundamental right that artists like to over-extend is that of integrity. This simply means that unauthorised derivative works must not be implicitly or explicitly attributed to them, e.g. a movie with 5 seconds edited out.

It does not mean that no-one can create such a derivative, but that if anyone does they must take great care to ensure that no-one mistakes it for the artist's original work (though the base work should not be misattributed).

Neo: Bung bowdlerise into Google.

Permalink to Comment

14. Branko Collin on April 23, 2005 8:29 AM writes...

At Distributed Proofreaders we are/were/are going to/were planning to process the original bowdlerised Shakespeares. In the discussion that followed, some people claimed that Bowdler's reputation has been much bowdlerized, and that creating an edition of Shakespeare wasn't such an uncommon event.

Of course, Bowdler was ripping, mixing and burning public domain texts. It is not as if all the other editions of Shakespeare were destroyed. Copyright is what destroys works.

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