The Family Entertainment and Copyright Act of 2005

The Family Entertainment and Copyright Act of 2005

Order Code RS22042
Updated May 20, 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 has been enacted. The Family Entertainment and Copyright Act of 2005, P.L.
109-9, was signed into law on April 27, 2005. Among the issues addressed are
unauthorized distribution of pre-release commercial works, the marketing of devices for
home use to edit DVDs, the preservation of the nation’s film heritage, and use by
libraries and archives of “orphan works.” This report examines the provisions of P.L.
109-9.
S. 167, 109th Congress, 1st Sess. (2005), the “Family Entertainment and Copyright
Act of 2005” passed the Senate on February 1, 2005.1 It was reported favorably by the
House Judiciary Committee on April 12, 2005,2 and passed the House on April 19, 2005.
The Act, comprised of legislative proposals considered in the 108th Congress, is divided
into four titles.3 They are discussed below.
Title I — “Artists’ Rights and Theft Prevention” (ART Act). The ART Act
adds 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. P.L. 109-9
1 151 CONG. REC. S827 (daily ed. Feb. 1, 2005). See companion bill, H.R. 357, 109th Cong., 1st
Sess. (2005).
2 See H.Rept. 109-33, Part 1, 109th Cong., 1st Sess. (2005).
3 The law 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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creates a new statute, 18 U.S.C. § 2319B, which expressly prohibits unauthorized
recording of motion pictures in a motion picture exhibition facility.
The provision is conceptually related to 18 U.S.C. § 2319A, which establishes
criminal sanctions for unauthorized filming or recording of live musical concerts.4 It
subjects 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 permits 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 establishes a new category of criminal infringement: unauthorized
distribution of a pre-release commercial copyrighted work.5 Section 103 adds a new
class of prohibited activity to 17 U.S.C. § 506 governing criminal copyright infringement.
§ 506(a) 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 — has been 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 law 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.6 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 intellectual property (IP) crimes.
Title II — The “Family Movie Act of 2005” (FMA). The FMA amends 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 law creates a “safe harbor” from copyright and trademark infringement liability
for movie filtering technology, such as that currently sold by ClearPlay, that skips over
4 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.
5 18 U.S.C. § 2319 sets forth conditions and penalties for criminal copyright infringement.
6 Section 104 amends 17 U.S.C. § 408.

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dialogue and scenes deemed offensive but does not create a fixed copy of the altered
version.7 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 law’s sponsors have indicated an intent to
preclude a manufacturer’s liability for the unauthorized preparation of a derivative work.8
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.9 Litigation is currently pending with respect to both filtering
technology and the offering for rental of movies edited without permission of copyright
holders.
The law 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 law, however, omits this express exclusion
from the exemption because the permissibility of ad-skipping devices and technology is
generally unsettled and the law is not intended 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.10
Title III — The “National Film Preservation Act of 2005”. This Title
reauthorizes the National Film Preservation Board and the National Film Preservation
7 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.
8 17 U.S.C. § 106(2).
9 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).
10 151 CONG. REC. S495 (daily ed. Jan. 25, 2005) (statement of Sen. Hatch).

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Foundation.11 The Board, comprised of 22 representatives selected by the Librarian of
Congress from designated film and arts-related associations, works to recognize and
preserve historically or culturally significant films by reviewing those nominated by the
general public as well as representatives of the film industry for inclusion in the National
Film Registry. The law directs the Librarian to work with the Preservation Board and the
National Audio-Visual Conservation Center of the Library of Congress 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.12 The law 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.
11 The Foundation (1) encourages, accepts, and administers private gifts to promote and ensure
the preservation and public accessibility of the nation’s film heritage held at the Library of
Congress; (2) works to further the goals of the Library of Congress and the National Film
Preservation Board in connection with their activities under the National Film Preservation Act
of 1996 and (3) conducts activities, alone or in cooperation with other film related institutions
and organizations, to further the preservation and public accessibility of films made in the United
States, particularly films not protected by private interests, for the benefit of present and future
generations of Americans. See 36 U.S.C. § 151702.
12 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).