Order Code RS22042
February 4, 2005
CRS Report for Congress
Received through the CRS Web
The Family Entertainment and Copyright Act
of 2005
Robin Jeweler
Legislative Attorney
American Law Division
Summary
Intellectual property legislation that came close to enactment during the 108th
Congress passed the Senate by unanimous consent early in the 109th Congress. Among
the issues addressed are unauthorized distribution of pre-release commercial works, the
marketing of devices for home use to edit objectionable content from DVDs, the
preservation of the nation’s film heritage, and use by libraries and archives of “orphan
works.” A companion bill has been introduced in the House. This report discusses the
provisions of S. 167, 109th Cong., 1st Sess. (2005).
S. 167, 109th Congress, 1st Sess. (2005), the “Family Entertainment and Copyright
Act of 2005” passed the Senate on February 1, 2005.1 The bill, comprised of legislative
proposals considered in the 108th Congress, is divided into four titles.2 They are discussed
below.
Title I – “Artists’ Rights and Theft Prevention” (ART Act). The ART Act
would add new criminal penalties for unauthorized recording or filming of motion
pictures in a theater. It is intended to stem bootlegging and unauthorized distribution of
“pre-release commercial works.”
Movie studios complain that all too frequently an unauthorized version of a film is
available online even before or shortly after it is commercially released. The bill would
add a new law, 18 U.S.C. § 2319B, expressly prohibiting unauthorized recording of
motion pictures in a motion picture exhibition facility.
1 151 CONG. REC. S827 (daily ed. Feb. 1, 2005). See companion bill, H.R. 357, 109th Cong., 1st
Sess. (2005).
2 The bill contains provisions similar to or identical to language in bills that passed their
respective chambers in the 108th Congress, namely, H.R. 4077, 108th Cong., 2d Sess. (2004), the
“Piracy Deterrence and Education Act of 2004,” and S. 3021, 108th Cong., 2d Sess. (2004), the
“Family Entertainment and Copyright Act of 2004.”
Congressional Research Service ˜ The Library of Congress

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The provision is conceptually related to current 18 U.S.C. § 2319A, which
establishes criminal sanctions for unauthorized filming or recording of live musical
concerts.3 It would subject offenders to imprisonment for three to six years and forfeiture
or destruction of the bootlegged copies. Movie theaters and exhibitors receive civil and
criminal immunity from liability for a reasonable detention for questioning or arrest of
any person suspected of violating the law. It would permit a victim of the crime to submit
a victim impact statement identifying the extent and scope of loss suffered, including the
estimated economic impact of the offense, to a probation officer.
The ART Act would establish another category of criminal infringement:
unauthorized distribution of a pre-release commercial copyrighted work.4 Section 103 of
the bill adds a new class of prohibited activity to 17 U.S.C. § 506 governing criminal
copyright infringement. § 506(a) currently defines criminal infringement as willfully
infringing for (1) commercial advantage or private financial gain or (2) by reproducing
or distributing within any 180-day period one or more copyrighted works having a retail
value of $1000. A new category – knowingly making a work being prepared for
commercial distribution available on a computer network accessible to the public – would
be added. Works covered include computer programs, motion pictures, and sound
recordings. Punishment includes fines and/or imprisonment for 3 to 10 years.
Section 104 of the bill directs the Copyright Office to establish procedures to allow
preregistration of a work that is being prepared for commercial distribution and has not
been published.5 The work must be of a class that the Register determines suffers a
history of pre-commercial distribution infringement. Copyright registration facilitates an
action for infringement.
Section 105 directs the U.S. Sentencing Commission to review, and if appropriate,
amend the federal sentencing guidelines and policy statements applicable to persons
convicted of IP crimes.
Title II – The “Family Movie Act of 2005” (FMA). The FMA would amend 17
U.S.C. § 110 which establishes limitations on the exclusive rights of copyright holders
to permit the marketing and home use of devices intended to edit out sexual, violent
and/or profane scenes and language from motion picture DVDs.
The bill is intended to create a “safe harbor” from copyright and trademark
infringement liability for movie filtering technology, such as that currently sold by
ClearPlay, that skips over dialog and scenes deemed offensive but does not create a fixed
3 See United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), cert. den. 529 U.S. 1036 (2000)
upholding 18 U.S.C. § 2319A under congressional authority to legislate pursuant to the
Commerce Clause. Contra, United States v. Martignon, 346 F.Supp.2d 413 (S.D.N.Y. 2004).
Any question concerning Congress’ constitutional authority to regulate commercial matters
involving live performances should not, however, be implicated in protection of clearly
copyrightable motion pictures.
4 18 U.S.C. § 2319 sets forth conditions and penalties for criminal copyright infringement.
5 Section 104 of the bill would amend 17 U.S.C. § 408.

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copy of the altered version.6 It emphasizes that the filtering technology must be used for
private household use.
In order to avoid liability for trademark infringement, the manufacturer must ensure
that the technology provides notice that the edited motion picture will be altered from the
performance intended by the movie’s director or copyright holder.
With respect to copyright law, the bill’s sponsors wish to preclude a manufacturer’s
liability for the unauthorized preparation of a derivative work.7 However, it is not clear
that manufacture, sale, or use of the skipping technology does in fact violate a copyright
holder’s exclusive right to prepare a derivative work based upon the copyrighted work.8
Litigation is currently pending with respect to both filtering technology and the offering
for rental of movies edited without permission of copyright holders.
As in the 108th Congress, the Senate bill is silent on the issue of “ad skipping”. The
House-passed version in the 108th Congress specified that the exemption from copyright
infringement for filtering technology did not apply to ad skipping. The Senate version
omits this express exclusion from the exemption because the permissibility of ad-skipping
devices and technology is generally unsettled and it is not the intention of the bill’s
sponsors to resolve the question:
That this change in no way affects the scope of the exemption is clear when
considering that the new section 110(11) exemption protects the “making
imperceptible ..... limited portions of audio or video content of a motion picture.......”
An advertisement, under the Copyright Act, is itself a “motion picture,” and thus a
product or service that enables the skipping of an entire advertisement, in any media,
would be beyond the scope of the exemption. Moreover, the phrase “limited portions”
is intended to refer to portions that are both quantitatively and qualitatively
insubstantial in relation to the work as a whole. Where any substantial part of a
complete work, such as a commercial advertisement, is made imperceptible, the new
section 110(11) exemption would not apply. The limited scope of this exemption does
not, however, imply or show that such conduct or a technology that enables such
conduct would be infringing. This legislation does not in any way deal with that issue.
It means simply that such conduct and products enabling such conduct are not
immunized from liability by this exemption.9
Title III – The “National Film Preservation Act of 2005”. This Title
reauthorizes the National Film Preservation Board and the National Film Preservation
Foundation. These organizations work to recognize and preserve historically or culturally
6 The requirement that filtering not result in a fixed copy of the edited version should distinguish
ClearPlay’s skipping technology from practices of other businesses which edit films without
authorization from copyright holders to offer family-friendly versions of movies for rental to the
public.
7 17 U.S.C. § 106(2).
8 See, e.g., H.R. 4586, The Family Movie Act of 2004: Hearing before the House Subcomm. on
Courts, the Internet, and Intellectual Property, 108th Cong., 2d Sess. (2004)(Statement of
Marybeth Peters, Register of Copyrights, that the legislation is not needed because it seems
reasonably clear that such conduct is not prohibited under existing law).
9 151 CONG. REC. S495 (daily ed. Jan. 25, 2005) (statement of Sen. Hatch).

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significant films. It directs the Library of Congress to work with the Preservation Board
to make films included in the National Film registry more broadly accessible for research
and educational purposes; to ensure that the national film preservation plan addresses
technological advances in preservation and storage; and, to expand initiatives to ensure
the preservation of the Nation’s image heritage.
Title IV – The “Preservation of Orphan Works Act”. Under the predecessor
to the current Copyright Act, a copyright owner was obliged to undertake certain
procedural formalities to establish and extend the term of a protectible copyright. Many
of those formalities are done away with under current law. A copyright subsists from the
moment an original work of authorship is fixed in a tangible form and endures for a single
term without the need for renewal. An “orphan work,” that is, a work for which the
copyright owner cannot be located, imposes a burden on users. According to the U.S.
Copyright Office, which is studying the issue, the question is whether orphan works are
being needlessly removed from public access and their dissemination inhibited to the
public’s detriment.10 The bill, however, makes a very minor amendment to the Copyright
Act, 17 U.S.C. § 108(i), to permit limited reproduction by libraries and archives of
specified copyrighted works that are not subject to normal commercial exploitation within
the last 20 years of their copyright term.
10 See Notice of Inquiry, 70 Fed. Reg. 3739 (Jan. 26, 2005)(U.S. Copyright Office seeks to solicit
comments on and to examine the issues raised by orphan works).

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