Not yet released and already a critical disappointment: still in committee, the proposed "Family Movie Act of 2004" garners few accolades.

• Author: Brozik, Matthew David

1. INTRODUCTION: IN PRODUCTION

   Currently under consideration in Congress is a bill to enact the "Family Movie Act of 2004." (1) The act would make it expressly lawful for a person watching a motion picture on DVD at home to use a combination of hardware and software as necessary to filter out certain types of content--violent or sexually explicit material, for example--that the viewer would prefer not to see or hear (or have children see or hear). (2) The proposed legislation, although brief, is important enough that at the legislative hearing on the act, the House Subcommittee on Courts, the Internet, and Intellectual Property heard from persons of no less distinction than the Register of Copyrights and the president of the Motion Picture Association of America, among others. (3) The proposal to enact the legislation is controversial, moreover, drawing harsh criticism from at least one Democratic representative who has characterized the bill as a Republican attempt to censor the movie industry and to improperly force the settlement of a pending federal lawsuit. At best, however, the proposed legislation is unnecessary, as it would only make affirmatively lawful what is now not unlawful.

2. FEATURE PRESENTATION: "THE FAMILY MOVIE ACT OF 2004"

   1. Scene: The House of Representatives

      On June 16, 2004, during the second session of the 108th Congress, in the House of Representatives, Mr. Lamar Smith of Texas, for himself and Mr. Randy J. Forbes of Virginia, introduced H.R. 4586, a bill:

      [t]o provide that making limited portions of audio or video content of motion pictures imperceptible by or for the owner or other lawful possessor of an authorized copy of that motion picture for private home viewing, and the use of technology therefor, is not an infringement of copyright or of any right under the Trademark Act of 1946. (4) The short title of the act is the "Family Movie Act of 2004." (5)

      After its introduction, the bill was referred to the House Committee on the Judiciary, F. James Sensenbrenner, Jr. (WI), Chairman. The following day, June 17, the bill would be further referred to the Subcommittee on Courts, the Internet, and Intellectual Property, and that subcommittee would hold its hearings on the bill. (6)

      The witnesses at the subcommittee hearing would be: the Honorable Marybeth Peters, Register of Copyrights, Copyright Office of the United States, The Library of Congress; Dr. Amitai Etzioni, Founder and Director, The Institute for Communitarian Policy Studies, The George Washington University; Mr. Jack Valenti, President and Chief Executive Officer, Motion Picture Association of America; and Ms. Penny Nance, President, Kids First Coalition. (7)

   2. (Meanwhile ... in Colorado)

      Although the Committee on the Judiciary's press release did not say outright that the Family Movie Act of 2004 had been introduced specifically to influence the outcome of a pending lawsuit, as would very soon be alleged, yet the advisory alluded to on-going litigation. (8) There can be no doubt that the Committee had in mind the case known deceptively briefly as Huntsman v. Soderbergh, which abbreviated appellation hardly hints at the complexity of the caption. (9) Fortunately, the issue of the case is not complicated: the United States District Court for the District of Colorado, Judge Richard P. Matsch, has been asked to decide whether the manufacture and distribution of such technological means to allow the identification of, and filtering from motion pictures on digital video discs, certain content violates copyright or trademark law. At the time of the introduction of H.R. 4586, a motion for summary judgment--first noticed on May 30, 2003, and in support of which a supplemental citation of authority was submitted to the court as recently as July 8, 2004--was sub judice.

3. THE RISE OF THE MACHINES

   Responding to a perceived market demand for versions of popular motion pictures that parents would feel more comfortable allowing their children to view than the originals, the Colorado lawsuit so-called "Player Control Parties" developed and sold technologies that, though in different ways, all filtered certain content from movies on DVD or made censored versions of motion pictures available. According to the September 20, 2002, press release of the DGA: "CleanFlicks," for example, "sells, distributes, and ... offers ... versions of feature films that have been edited by CleanFlicks to remove portions of the films." (10)

   Apparently expecting the disapproval, if not the full wrath, of the owners of the copyrights in the motion pictures already filtered or soon to be, the original Player Control Party plaintiffs sued for a judgment that the technology at issue and the results of application thereof are not unlawful. Although the parties have been litigating the matter zealously since, reports indicate that the parties are also exploring the possibility of settling the matter out of court. (11)

4. ENTER CONGRESS, FROM THE RIGHT

   Now, some two years after the commencement of the federal lawsuit and while the parties thereto are trying to work things out amongst themselves, Representatives Smith and Forbes have introduced H.R. 4586, to the apparent chagrin of several, including most vocally the courts, the Internet and Intellectual Property Subcommittee member Representative John Conyers, Jr. (MI). "At the outset," Mr. Conyers remarked to his Subcommittee at the June 17 hearing,

   I am embarrassed we are even considering this bill. The Republicans know full well that the directors and ClearPlay are engaged in settlement negotiations to resolve a lawsuit over copyrights: they are using this bill and this second hearing to pressure the directors and help the other side. (12) In my tenure in Congress, this is only the second time I can remember having a one-sided hearing involving on-going settlement talks; not surprisingly, the first was a few weeks ago on the same issue. Our hearings should be reserved for public policy debates[,] not for strong-arming private litigants. It is more troubling considering that we are here to continue the Republican assault on the First Amendment and media content. In the past few months, we've seen Republican overreaction to a televised Superbowl stunt and to radio broadcasts. Now the self-proclaimed moral majority is turning to movies. Censoring filmmakers would diminish the nature of this medium. Let us not forget that Schindler's List was on broadcast television completely uncut. The movie studio and the broadcasters knew the film could not convey its feeling and authenticity if it was edited. Despite this, the movie has been...