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Congress legalizes DVD censorship

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It will soon become legal to alter a motion picture so long as all the sex, profanity, and violence have been edited out, thanks to a bill called the Family Movie Act, an attachment to the Family Entertainment and Copyright Act approved Tuesday by the House. The Senate has already passed its own version, and the President is expected to sign it.

Overall, the bill is a big win for Hollywood, with significantly harsher penalties for common bootleggers. But the 'family movie' provision, championed by US Representative Lamar Smith (Republican, Texas), Chairman of the House Judiciary Committee's Internet and Intellectual Property Subcommittee, indemnifies any company that makes prudish versions of movies available without authorization. File sharing will remain a crime, but so long as all the good parts have been purged, a sort of Puritanical bootlegging will be tolerated, if not encouraged.

The bill does not address companies such as CleanFilms, Family Flix, and others, that produce sanitized versions of movie DVDs. These outfits claim that they do not violate copyrights because they buy a copy of the original each time they create a bowdlerized version. These claims amount to no harm no foul: the studios are selling just as many copies as they otherwise would, and perhaps more when one considers the number of people who would not buy the original versions.

The studios say that their copyrights are being violated whenever a company or individual re-distributes their work for profit. The Director's Guild is especially incensed because the outfits doing the censoring are re-working the movies however they see fit, which the directors claim can make a mess of their work. (Although there are bowdlerized editions of movies for broadcast and for exhibition on airplanes, in those cases the directors themselves produce the edited versions, and the production companies and studios are compensated for these performances through a licensing scheme.)

The directors agree that whenever a person purchases a DVD, it becomes their property and they can do with it what they please: edit it for their own enjoyment, decorate a Christmas tree with it, or satisfy their curiosity about how long it might last in the microwave oven. But the thing one may not do is market one's own copies of it. And this, they say, is what CleanFilms and Family Flix are doing, whether they buy an equal number of original copies or not.

These claims and counterclaims are currently being tested in the courts.

Companies like ClearPlay go about things a bit differently, with a DVD player and downloadable filter templates that can skip past objectionable content without actually altering the DVD.

Creating a separate DVD seems to be a straightforward case of copyright violation that the courts ought to settle easily in favor of the studios, but with ClearPlay, the problem is not so obvious. The company does not produce an unauthorized copy of the original: it produces DVD player technology that users can control to show as much, or as little, skin and violence as they wish to see. The disk itself is not affected.

While this leaves shaky footing for a copyright infringement claim, the Director's Guild had been hoping that the courts would recognize their right not to have their work fiddled with by amateurs. ClearPlay does choose for consumers which portions of each movie its system will skip on demand. Users work from a menu of selections such as violence, sex, nudity, profanity, homosexuality, etc. to be suppressed. Essentially, the company is selling a library of filtering templates for movies that people can customize to some extent.

However, the new legislation will moot that issue. If it is signed into law as expected, the only recourse for directors would be challenging it on Constitutional grounds, a fairly sketchy proposition at best. Since the disk is not physically altered, and no duplicate copy is created, the matter boils down to a consumer choosing to view, or not view, portions of a DVD that they own.

Interestingly, Smith's legislation appears tailored to accommodate ClearPlay alone. The bill will protect from copyright liability, "a manufacturer, licensee, or licensor of technology that enables the making of limited portions of audio or video content of a motion picture imperceptible..." It says nothing about making separate editions on DVDs, although the courts have begun taking up that issue.

One problem articulated by Free Expression Policy Project founder Marjorie Heins during a Washington press conference on Monday, is the likelihood that the technology might become mandatory in some situations. She cited the now-mandatory use of internet filtering in libraries, and warned that Congress might one day force libraries and schools to use movie filtering technology like ClearPlay. It is also possible that DVD filtering technology might become mandatory on all players, as the V-chip is on TV sets.

It is difficult to say which federal agency would be in a position to administer such mass censorship legally, since DVDs, like books, are things one goes out to buy or rent or borrow, unlike radio and TV, which are broadcast into one's home and for that reason subject to government regulation. It is hard to imagine any such legislation passing Constitutional muster. But one thing is certain: if the Republican Congress does attempt such a thing, books will not be far behind. ®

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