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Balancing Piracy Protection With Fair Use

24 Apr, 2005 By: Kurt Indvik

The Family Entertainment and Copyright Act that passed in Congress last week strikes an interesting balance between serving the rights of copyright holders and addressing issues of fair use for consumers.

On one hand, legislators came down harder on illegal copying and distribution of copyrighted material. Camcording in theaters and illegal distribution of copyrighted work now carry prison sentences ranging from three to 10 years. Congress is recognizing the copyright holder’s right to maximize the value of that property across the spectrum of entertainment channels, including the ever-evolving digital landscape. The bill delineates stiffer prison terms for people who illegally distribute copyrighted material for commercial advantage or private financial gain, as compared to those who do so freely simply because they can.

On the other hand, it seems legislators feel that consumers should be able to use products and services that can manipulate or edit entertainment content in the privacy of their own homes to avoid content they may find offensive. They must have purchased the copyrighted material, of course, and most importantly, they cannot make a permanent copy of the edited version. This section was part of the Family Movie Act, included in this omnibus legislation. By the title, it’s clear lawmakers were making a statement to the family-values constituency, even as some denounced such masking technology as an attack on artistic rights.

The Family Movie Act relates directly to ClearPlay technology, which lets consumers see more sanitized versions of certain movies. Hollywood has sought to squelch ClearPlay in federal court, but those efforts will likely be null and void with the signing of this bill. The new law may, however, draw a distinction in the use of other products, such as Clean Flicks, that, in fact, do make a copy of the edited version of a video. Their legal troubles with the studios may not be over.

The industry will continue to struggle with both broad and targeted issues of copyright protection and fair use as digital entertainment evolves. Next up, of course, is a ruling from the U.S. Supreme Court on the Grokster case, expected as early as June.

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