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Bill Hands a Partial Victory to Maskers

30 Sep, 2004 By: Holly J. Wagner

A House of Representatives action this week that brought a stiff anti-camcording bill closer to federal law also handed at least a partial victory to services that digitally mask aspects of films played on DVD in the home.

The Piracy Deterrence and Education Act, which calls for penalties including civil fines and possible jail time for movie and music pirates, incorporated key aspects of the Family Movie Act (FMA), which permits using technology that skips certain aspects of a movie as long as the disc, tape or other playback media does not create an altered physical copy.

The bill also would require that companies that provide in-home masking technologies add disclaimers to the filters stating the edited movie does not match the director's creative vision.

“We applaud this bill, and especially The Family Movie Act. It provides parents with tools so they can decide what their children see and hear in movies,” said Bill Aho, CEO of Clearplay Technologies, which makes an in-home entertainment filtering system. “This is not about censorship — far from it. This is not about ClearPlay, or any company in our industry, making choices. This is about giving families the option to see a little less blood and gore, a little less sex, and a few less F-words in the home.”

Indeed, the bill also forbids cable, satellite and video-on-demand (VOD) services from piping edited movies from the headend. It specifies that the exemption applies only when the skipping is “at the direction of a member of a private household,” when the performance does not change ads or network promotional announcements, and when “no fixed copy of the altered version of the motion picture is created.”

That would seem to be a sticky wicket for Cleanfilms and Family Flix, which create edited copies of films for their members.

“The truth is that the First Sale and Fair Use provisions of copyright law clearly protect a consumer's ability to make a physical (fixed) backup copy of software that they've obtained a legal license to, whether that software is a Microsoft application for their PC, or a movie on DVD,” said CleanFilms CEO Chad Fullmer. “CleanFilms is confident that, despite the efforts to pass the Family Movie Act, its practice of providing family-edited versions of popular Hollywood movies, always maintaining a 1:1 ratio of edited copies to licensed/unedited original DVDs, will be found to be in full compliance with the law.”

Family Flix did not respond to requests for comment by press time.

All of the services have come under legal fire from the Directors Guild of America (DGA), which sued the services to protect directors' asserted creative rights to how their films are seen. The DGA and several prominent members sued these and other services in 2003 seeking to quash their products.

A DGA spokesperson also did not respond to requests for comment by press time. But a few legislators objected to incorporating the FMA into the bill, saying it interferes in a private lawsuit.

“While the bill contains numerous anti-copyright piracy provisions I helped draft, I oppose [the FMA] section, because it is an anti-copyright, special-interest provision that will interfere in a pending lawsuit,” said Rep. John Conyers, D-Michigan.

The Motion Picture Association of America (MPAA) applauded the camcording penalties, but was less than pleased with the compromise on editing technologies.

“We opposed any Family Movie Act on principle as an unwarranted intrusion into the creative process,” said David Green, MPAA's VP of technology and new media. “That said, we like very much more the version that is in this bill than as reported out of committee. The bill now defines ‘making imperceptible' as not including the addition of audio or video content. So you can skip and mute, but you can't add.”That would presumably prevent ClearPlay's policy of adding clothing to nude bodies in movies.

“A second change is, it makes abundantly clear that no fixed copy of the altered version can be made,” Green added.

“It is also clear that it applies to more than just prerecorded media. It also applies to movies over VOD or broadcast. But it does not protect a service that would take the commercial advertising out of broadcasts,” Green said. “It doesn't say that it is a violation of copyright law, it just says it is not protected under this act.”

The Video Software Dealers Association took no position on the FMA portion of the bill.

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