Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media


Selection from Cites & Insights 5, Number 7: May 2005


©3 Perspective

FMA: Watching the Way You Want

Congress passed the Family Entertainment and Copyright Act within the last few weeks. By now, it’s probably been signed into law. My thoughts are intertwined with those I’m quoting, as usual.

The Family Entertainment and Copyright Act of 2005, S.167/HR357

I printed and saved this bill back in February—checking to see that the Senate and House bills were identical—because a Cnn.com article noted that the legislation was likely to move fast and because it appeared to include the least controversial aspects of the omnibus copyright bill from last Fall. By now, you’ve probably heard that the bill passed in mid-April. You may have heard that Public Knowledge and other pro-balance forces were not outraged by this bill.

Neither am I. I believe the provisions of this bill are all worthwhile (although one of them should not be necessary) and that its passage may relieve pressure to pass seriously defective copyright legislation. Maybe it’s my optimistic nature, but I see this as a case where a tweaking of copyright balance may stall serious unbalance. Some other people who I consider thoughtful and reasonable disagree.

What’s in the act? Four parts:

Ø    The ART Act (the Office of Legislative Development—Federal Acronym Realization Title Specialists strikes again!), or Artists’ Rights and Theft Prevention Act of 2005. This portion adds two new copyright-related criminal offenses with draconian penalties—but the offenses are ones that I would argue are always deliberately infringing in nature and closely linked to true piracy (widespread commercial infringement). The first is unauthorized recording of motion pictures in a theater—using a camcorder to record a copy from the screen. Possession of a camcorder within a movie theater may be considered as evidence toward a conviction but isn’t by itself a crime. The second new crime is infringement of a work being prepared for commercial distribution—which strikes at the heart of “insider piracy,” where a record or movie studio employee sneaks an advance copy to pirates. The crime must involve commercial advantage or private financial gain; reproduction or distribution alone is not enough to prove the crime. The second also comes with a procedure for preregistration of works about to be published (I’d argue that any registration of copyright works is a good thing).

Ø    The Family Movie Act of 2005—what, no acronym? I find this portion difficult because I don’t believe it should be needed—but apparently it is. This act legalizes (in copyright and trademark terms) ClearPlay and similar models, where software or some other control device “mak[es] imperceptible, by or at the direction of a member of a private household…limited portions or audio or video content of a motion picture…from an authorized copy of the motion picture…if no fixed copy of the altered version…is created…” [There’s more, but that’s the heart.] The act also requires “a clear and conspicuous notice at the beginning of each performance that the performance of the motion picture is altered from the performance intended by the director or copyright holder of the motion picture.” In other words, if you buy, rent or borrow a DVD, you have the right to use a ClearPlay-enabled DVD player and instruct it to skip over “the nasty parts,” as long as it puts up a “This film has been altered…” screen and doesn’t make a permanent modified copy of the movie.

Ø    The National Film Preservation Act of 2005, reauthorizing the Film Preservation Act and providing modest funding for the National Film Preservation Foundation.

Ø    The Preservation of Orphan Works Act, which changes copyright code in some obscure manner to help preserve orphan works.

There’s not much debate over the third and fourth parts. The first part offends extremists on the free culture side. Cory Doctorow’s summary is typical of one side: “[O]n the one hand, it panders to the Hollywood filmocrats by promising mandatory beheading for people caught videotaping movies in theatres…” The rest of the posting concludes that Doctorow “would happily patronize a ‘FilthyFlicks’ service that promised to lop out all the non-cussin’, non-naked parts of the movie, leaving me with nothing but pure degenerate rot.” Which this act also legalizes.

If Doctorow and his EFF buddies could give me any legitimate reason for videotaping a movie in a theater, the discussion might be more interesting.

Wired News

This April 19, 2005 story (by Katie Dean) announcing the passage quotes Bill Aho of ClearPlay: “We’re thrilled that it passed. I think it’s a great bill for families. I think it’s great for parents and I think it’s great for the technology sector.” Aho says several companies have been waiting for the lawsuit (by movie studios, the Director’s Guild of America, and 13 individual directors) to be settled before considering integrating ClearPlay technology. Kendrick Macdowell of the National Association of Theatre Owners responded to the ART Act: “This legislation will permit theatre operators to combat movie theft at its main source, by intercepting and detaining thieves who brazenly attempt to copy movies from our screens.”

Two interesting responses came from Art Brodsky of Public Knowledge and Fred von Lohmann of EFF. Brodsky’s comment: “This is basically the low-hanging fruit from last year. These are the relatively non-controversial parts of the omnibus copyright legislation from last year.” Von Lohmann: “Compared to proposals like the Induce Act, the provisions of this bill are much less dangerous to innovation and the public’s rights.” Not ringing endorsements, but also not denunciations.

Freedom to tinker

Ed Felten is positively upbeat in “‘Censorship’ bill lifts ban on speech,” posted April 21. He says FMA is “best understood as an anti-censorship proposal,” responding again to The Register’s mischaracterization of the bill. As Felten points out, there’s nothing in FMA that says you can only skip the dirty bits. “The FMA says that you can skip any portions of the movie you like, as long as the portions you skip are ‘limited’.” He notes that you could watch a soccer-free version of Bend It Like Beckham, and that such a version is speech—speech that FMA allows to occur, by preventing the copyright owner from suing to block it. “And the FMA does this in an ideal way, ensuring that the copyright owner on the original work will be paid for the use of their work.”

Let’s review. The FMA prevents no speech. The FMA allows more speech. The FMA prevents private parties from suing to stop speech they don’t like. The FMA is not censorship. The FMA prevents censorship.

DigitalKoans

Charles W. Bailey, Jr., has a weblog (in addition to his essential Scholarly Electronic Publishing Weblog). One of the first two posts (www.escholarlypub.com/digitalkoans/) is a brief comment on April 20, “Family Entertainment and Copyright Act.” I love his example: “Just imagine what Kill Bill looks like on ClearPlay. Not even time to eat your popcorn.” Then Charles notes, “If protecting the artistic integrity of movies doesn’t matter to you, I suppose this law is harmless enough, but is it the infamous ‘slippery slope’?” He goes on to suggest other situations.

I posted a lengthy comment noting that I don’t see the problem with the law, for reasons noted earlier. Quoting myself: “It’s an issue of a consumer being allowed to use a purchased (or rented or borrowed) product in the manner the consumer sees fit. An author can’t prevent you from skipping ‘nasty’ chapters in a book; RIAA can’t prevent you from skipping ‘nasty’ songs on a CD—and neither of them can prevent you from having someone tell you which parts are nasty and should be avoided. Why should MPAA be able to tell you that you can’t skip the nasty parts?... And, paranoid as I am, I don’t see a slippery slope here. The slippery slope I see is the suggestion that the creator or copyright holder should be able to control how you use a legally-acquired copy.”

Charles responded with a concern that such skipping might be done without the user’s choice. It’s a thoughtful response, worth reading.

Deep links

“Family Entertainment and Copyright Act Passes” appeared April 22, 2005 on this EFF weblog (www.eff. org/deeplinks/). Fred von Lohman notes, “There has been some alarmist reporting about the bill. While it’s decidedly a mixed bag, I think the bill should be marked as more victory than a defeat for the public interest side in the copyfight.” Von Lohman regards the anti-camcording provision as largely redundant—and while the post labels the new pre-release penalties as “a step in the wrong direction,” it goes on, “panic seems premature.”

FMA, on the other hand, is marked “definitely a step in the right direction, as it empowers innovators to deliver technologies that let you control how the movies you own or rent are presented in your living room.” The problem is that it’s a relatively narrow fix. The big “silver lining” is that so much of what Big Media was after in 2003 and 2004 has gone by the wayside—that the bill covers so little ground.

Infothought

Finally—for now—Seth Finkelstein wrote about the bill on April 22, 2005 at Infothought (sethf.com/infothought/). He focuses entirely on FMA and says it’s “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.” After quoting the relevant portion, he says, “In simple terms, this is aimed at the market for religious prudes who want expurgated movies”—then goes on to consider the “fairly obscure tension” in copyright law that made FMA necessary.

He concludes, “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.” He says it’s not a threat but also not a big win, and calls it “a tiny sop to fanatical narrow-minded control-freaks, no more.”

I agree that it’s not a big win—the big win, if there is one, is in not getting the really bad provisions that were up for adoption in 2004—but I disagree with his characterization. The law does not direct itself to one particular market, and I don’t believe it’s reasonable to assert that it does. I’m no “narrow-minded control freak,” but I might choose to use something like ClearPlay for certain movies that I might otherwise find worthwhile, but where I’m too squeamish for the explicit blood and gore. Call me a wimp—but don’t call me a control freak.

Moral Rights

The claimed rights of directors to control the manner in which you watch their work is akin to the moral rights concept that’s common to European copyright law but much less significant in the U.S.

Bill Thompson wrote “The copyright ‘copyfight’ is on” at BBC News on February 18, 2005 (newsvote.bbc.co.uk/). He gets the basis for contention over balance right: “the basic argument is between those who see creative works as just another type of property…and those who see copyright as a deal struck with creative people by the state, one which is intended to benefit both sides.” He notes the extent to which the first view has gained precedence, citing the example of a lawyer at a hearing offering a simple term for changes to copyright law that would allow blind people to break copy protection in order to use text-to-voice software on ebooks: “expropriation.”

The interesting element is a little later: Thompson discusses moral rights: “the rights I have as a creator to control how my work is used and exploited. Moral rights are not about money but about integrity, and they pose great problems for those who want to liberalise copyright because they open questions of judgment, taste and even politics.” Thompson feels that Creative Commons licensing prevents exercise of moral rights. He believes changes are likely to disregard the interests of writers, artists, and composers.

Seth Finkelstein discussed Thompson’s piece in a February 28, 2005 post at Infothought, calling moral rights “certain fairly obscure provisions of copyright law”—generally true in the U.S., less so in Europe. He wondered whether people were confusing “moral rights” and “morality of property rights.” Thompson responded that his problem was with blanket or compulsory licensing of content, not fair dealing.

Larry Lessig also discussed the Thompson essay on lessig blog on February 26. He believes “there’s just a simple misunderstanding here that we (CC) needs to do a better job addressing.” He notes that CC just offers license choices. It doesn’t say what you should use. Lessig also notes that moral rights can’t be subdivided as easily as copyright—and that a CC mechanism wouldn’t work well for moral rights. CC doesn’t affect moral rights: In jurisdictions where those rights are respected, a CC license won’t abandon them.

Comments on Lessig’s post are all over the map, starting with Tom Albrecht’s equation of economic and moral issues, since he believes private property is a moral right. Rob Rickner takes a strong stance that “Authors and other creators DESERVE and have EARNED a right to control their works because of the hard work they put into them (Locke) and because the works are an expression of themselves and their personhood (Kant and Hegel).” But Rickner’s also a CC supporter. Josh Stratton says flatly, “I don’t think that authors deserve anything.” He doesn’t give a damn about creators, he just wants their creations. He’s not a big CC supporter—“I’d prefer to relax the laws instead.” I’m not sure Stratton is a full “you wrote it, it’s mine” anti-copyright advocate, but he’s close. I disagree with Stratton even more than I disagree with RIAA (if that’s possible).

What about moral rights? I have mixed feelings, but generally take the “single work or not published vs. reproduced/published work” cut. I believe an artist should have some moral rights over the disposition of a unique work of art. I believe a writer (or whoever) should have complete and total rights over any wholly unpublished work. Once you put it out in public, in reproduced form, things change. I Once I’ve purchased a copy of your DVD, you have no moral right to prevent me from watching it in the manner I prefer. Once you’ve published a book, you have no moral right to keep me from defacing, selling, or otherwise [mis]using it.

If some wacko right-wing operation puts one of these essays into one of their newsletters, with no charge for that newsletter, I don’t have a moral right to object to that inclusion: I’ve attached a CC license that settles that issue as a side-effect of settling the copyright permission issues. Heck, my weblog is on at least one blogroll that I’d prefer not to see it on (shudder)—and I don’t think I have a moral right to complain about that either.

Cites & Insights: Crawford at Large, Volume 5, Number 7, Whole Issue 63, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at RLG.

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