April 22, 2005

Family Entertainment and Copyright Act

The Family Entertainment and Copyright Act has a provision that is generating a mini-feeding-frenzy over a combination of the perennial definition-of-censorship debate, combined with the understandable desperation of copyfighters to grasp at something, anything, to have a victory. Here is the text of the passage describing one brand-new exemption from copyright infringement (taking the last, "S.167.RH", version):


(11) the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.; ...

In simple terms, this is aimed at the market for religious prudes who want expurgated movies. The underlying issue is a fairly obscure tension in copyright law, between the movie business and extreme social conservatives. The problem is as follows:

Copyright law generally forbids others making "derivative works". Cutting out naughty bits from movies might count as a "derivative work" (the boundaries here are unclear). The market for extreme social conservatives is too small to justify officially making special bowdlerized movies versions for their sensibilities. So they've made their own versions. Laudable in some way, but with regard to copyright, THIS IS A PROBLEM! Because if religious prudes are allowed to remix, alter, recreate, a copyrighted work, that potentially opens a wedge for anybody to do so. On the other hand, it's very, very, bad politics these days to be against what religious conservatives want, especially when it comes to protecting the children. Bad, bad, bad.

So what do do? Well, copyright law does not disintegrate in a flash of contradiction. The answer is almost elegant. Grant the ultra-prudes a special, minimal, exemption, just enough capabilities meet their needs, but so constrained and qualified that in practice, nobody else will ever be able to make use of it. Problem solved (maybe).

This isn't much of a "free speech victory". It isn't really a "free speech defeat" either. It's more of a clever solution to a political copyright problem, that doesn't help anyone besides those directly involved in movie bowdlerization.

Some people are worried about this issue as another ratings-type effort, like the old censorware wars. That is, where a system is propagandized as "informative" and "for parents", but it's essentially quasi-judicial and for broad banning. It's good to see such thinking in general. But this isn't a ratings-type case, for the simple reason that nobody *is* setting up a system for broad banning. There's no extensive propaganda effort to tell people that what looks like a duck is really a parental empowerment aquatic quacking technology embodiment.

However, if not a threat, it's not a big win either. To abstract away the evident politics and reasoning behind how the exemption was created is to be wilfully blind to the reality of the situation. This provision is not an endorsement of innovation or a gateway to remixing culture. It's a tiny sop to fanatical narrow-minded control-freaks, no more. Now, while it's not wrong _per se_ to accommodate fanatical narrow-minded control-freaks, neither is that exactly a great occasion for proclaiming an advance in user rights.

The critical point is that, no matter how much we might like it to be so, this provision is not a stepping-stone to greater cultural freedom. The context shows that very clearly.

By Seth Finkelstein | posted in copyblight | on April 22, 2005 11:59 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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"if religious prudes are allowed to remix, alter, recreate, a copyrighted work, that potentially opens a wedge for anybody to do so"

I hope this is true. Remixing, altering, and recreating are all good things. I believe that the creator of the original work does have a right to be paid (except in cases of fair use), but the structure of the bill guarantees that that right is protected. Why should it be a goal of copyright law to prevent the creation of derivative works (as opposed to ensuring payment to the original author)?

If I could modify the bill, I would change it to allow more remixing.

Posted by: Ed Felten at April 23, 2005 07:51 AM

Indeed, I'd allow more too, if it were up to me. But, faced with the actual law itself, the drafters seem to have done a decent job of removing the wedge , of making sure the religious prudes are appeased while not permitting applications other than minimal expurgation.

Posted by: Seth Finkelstein at April 23, 2005 10:42 AM

I see what you're saying, but I don't entirely agree. There are movies we won't watch because we're squeamish about explicit violence, that we might watch with an appropriate "take out the gory bits" filter. Who knows? There might be movies we'd watch if there was a "take out the preachy bits" filter, although that's less likely. Nothing, not one word, in the bill says it can only be used for "bad language" or flesh or sex.

That said, you're right that it's not a big victory. The big victory, if there is one, is what didn't happen: That of the horrendous omnibus copyright bill from last fall, the current quartet is all that made it through Congress, I believe substantially weakening attempts to get the nastier parts passed.

Anyway, perfect timing: I've added your essay to five other sources as background to expand the commentary I've already written for the next C&I. Thanks.

Posted by: Walt Crawford at April 23, 2005 01:01 PM

I do not know about you, but indeed I see here a great creative mixing opportunity. What does the law say? It says that you can create a program that selectively blanks out portions of a video being broadcast to you or being played out to you provided that you do not make copies of the video.

Fine, that is what computer programs are good for, they are algorithms, recipes to make things happen. I can program the computer to selectively blank out and maybe timeshift some material in such a way that I could Mix two or three movies together. I can put three DVD Drives on my computer (they are dirt cheap nowadays) with the three movies rented, download from my favorite P2P application the SUPER_MASHUP_PROGRAM and let it play!

Maybe it is not what the director wanted me to see, but it can be quite a great combination.

I submit for patenting rights now:
1. Jar-Jar-less Star Wars
2. The Ten Commandments+Planet of the Apes mashup (watch for the final sequence: a sunken Statue of Liberty at the end of the Opened up Dead Sea)

So they do not want us to make a copy of their DVD and they do not want me to have the MPEG4 on my HD? Good. We can share the program/secret sauce that given the right DVDs will let me watch a super mashup.

Posted by: Javier Perez at April 23, 2005 01:43 PM

Walt: Of course nothing in the law says it's for one particular social group - but there's been exactly one particular social group which has been interested in this kind of expurgation, and not a whole lot of interest outside that narrow application. I call this the "A tank *could* be used as a schoolbus" argument. Sure, it *could*, and somewhere, in some marginal context, it might be - but overall, it's a tank, not a schoolbus.

Javier: I suspect a court would rule that the overall system you propose, constitutes making an impermissible derivative work. This is why I say not to abstract away too much.

Posted by: Seth Finkelstein at April 23, 2005 02:25 PM

Guys, come on, let's not snatch defeat from the jaws of opportunity.

This DOES permit the distribution of a software program that creates a non-fixed derivative of a published, copyrighted movie (given an authorised copy).

What the lawyers forget is that there are outlaws out there.

It is a cinch for outlaws to go that weeny step further and create the prohibited fixed copy. The artist doesn't care - their creative effort that resulted in this fixed copy is legally recorded and published - they get full, legal attribution.

It is only the resultant derivative that remains illegal to fix. However, the fixed copy will nevertheless appear on p2p networks to be enjoyed by the public at their leisure.

This is a proof-of-concept job for downhillbattle.

An artist can now legitimately create a program that provides the necessary instructions to produce an unauthorised derivative. This program is now LEGAL to publish.

Posted by: Crosbie Fitch at April 23, 2005 08:31 PM

The problem is that nobody outside the niche market of religious prudes, wants that sort of derivative. Remember, you can't legally do much creative with the movie - only expurgate it.

Posted by: Seth Finkelstein at April 23, 2005 10:57 PM

So... this gives people the right to edit films for their own viewing in their own homes.

But does it pardon those video stores that are SELLING versions of movies that they themselves have edited? Will we start seeing small businesses start up where paranoid parents can rent the family-friendly version of "Sideways"? That seems like a far more serious problem... people profiting from their own butchered versions of other people's work.

Posted by: Jeffrey at April 29, 2005 03:47 PM

Nope. Just look at the Congressional statements (search for the word "ClearPlay" to get the page)

"There are a variety of services currently in litigation that
distribute actual copies of altered movies. This type of activity is
not covered by the section 110(11) exemption created by the Family
Movie Act. There is a basic distinction between a viewer choosing to
alter what is visible or audible when viewing a film, the focus of
this legislation, and a separate entity choosing to create and
distribute a single, altered version to members of the public. The
section 110(11) exemption only applies to viewer directed changes to
the viewing experience, and not the making or distribution of actual
altered copies of the motion picture."

Posted by: Seth Finkelstein at April 29, 2005 04:07 PM

I don't see why anyone would have a problem with this law. I mean, if the "religious prudes" want to watch a filtered version of some movie, let em. Personally, I don't give a crap what they watch. Though I don't really see any redeeming value in such a program for myself or any children I have in the future, If some people think it is a good idea and want to run with it, I am not gonna stop em. I mean, i would have get up, and run and catch them and IYIYI it would just not be worth it since i really dont care what they do. If I was a movie maker who didnt like people modifying my movie, i would simply put a warning/disclaimer at the beginning that said that people who watch this movie with censoring technology will NOT either understand, get the context, all the plot, and/or full enjoyment of the movie. Being all pissy and whiney doesnt solve anything. Bah, i am shutting up now cause i hate ranting and it makes me want to shoot myself in the foot.

Posted by: Mandil at May 4, 2005 02:48 PM