Orrin Hatch

Mr. HATCH

Mr. HATCH. Certainly.

Mr. HATCH. Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today. The analysis follows. Section-by-Section Analysis of the Family Movie Act of 2004, Amended and Passed by the Senate overview Title II of the Family Entertainment and Copyright Act of 2004 incorporates the House-passed provision of the Family Movie Act of 2004, with limited changes as reflected in this section-by-section analysis. As discussed herein, these changes are not intended to and do not affect the scope, effect or application of the bill. The purpose of the Family Movie Act is to empower private individuals to use technology to skip and mute material that they find objectionable in movies, without impacting established doctrines of copyright or trademark law or those whose business models depend upon advertising. This amendment to the law should be narrowly construed to effect its intended purpose only. The sponsors of the legislation have been careful to tailor narrowly the legislation to clearly allow specific, consumer-directed activity and not to open or decide collateral issues or to affect any other potential or actual disputes in the law. The bill as proposed in the Senate makes clear that, under certain conditions, ``making imperceptible'' of limited portions of audio or video content of a motion picture--that is, skipping and muting limited portions of movies without adding any content--as well as the creation or provision of a computer program or other technology that enables such making imperceptible, does not violate existing copyright or trademark laws. That is true whether the movie is on prerecorded media, like a DVD, or is transmitted to the home, as through pay-per-view and ``video-on-demand'' services. Subsection (a): Short Title Subsection (a) sets forth the short title of the bill as the Family Movie Act of 2004. Subsection (b): Exemption from Copyright and Trademark Infringement for Skipping of Audio or Video Content of Motion Pictures Subsection (b) is the Family Movie Act core provision and creates a new exemption at section 110(11) of the Copyright Act for the ``making imperceptible'' of limited portions of audio or video content of a motion picture during a performance in a private household. This new exemption sets forth a number of conditions to ensure that it achieves its intended effect while remaining carefully circumscribed and avoiding any unintended consequences. The conditions that allow an exemption, which are discussed in more detail below, consist of the following: The making imperceptible must be ``by or at the direction of a member of a private household.'' This legislation contemplates that any altered performances of the motion picture would be made either directly by the viewer or at the direction of a viewer where the viewer is exercising substantial choice over the types of content they choose to skip or mute. The making imperceptible must occur ``during a performance in or transmitted to the household for private home viewing.'' Thus, this provision does not exempt an unauthorized ``public performance'' of an altered version. The making imperceptible must be ``from an authorized copy of a motion picture.'' Thus, skipping and muting from an unauthorized or ``bootleg'' copy of a motion picture would not be exempt. No ``fixed copy'' of the altered version of the motion picture may be created by the computer program or other technology that makes imperceptible portions of the audio or video content of the motion picture. This provision makes clear that services or technologies that make a fixed copy of the altered version are not afforded the benefit of this exemption. The ``making imperceptible'' of limited portions of a motion picture does not include the addition of audio or video content over or in place of other content, such as placing a modified image of a person, a product, or an advertisement in place of another, or adding content of any kind. These limitations, and other operative provisions of this new section 110(11) exemption, merit further elaboration as to their purposes and effects. The bill makes clear that the ``making imperceptible'' of limited portions of audio or video content of a motion picture must be done by or at the direction of a member of a private household. While this limitation does not require that the individual member of the private household exercise ultimate decision-making over each and every scene or element of dialog in the motion picture that is to be made imperceptible, it does require that the making imperceptible be made at the direction of that individual in response to the individualized preferences expressed by that individual. The test of ``at the direction of an individual'' would be satisfied when an individual selects preferences from among options that are offered by the technology. An example is the C1earPlay model. C1earPlay provides so- called `` filter files'' that allow a viewer to express his or her preferences in a number of different categories, including language, violence, drug content, sexual content, and several others. The version of the movie that the viewer sees depends upon the preferences expressed by that viewer. Such a model would fall under the liability limitation of the Family Movie Act. This limitation, however, would not allow a program distributor, such as a provider of video-on-demand services, a cable or satellite channel, or a broadcaster, to make imperceptible limited portions of a movie in order to provide an altered version of that movie to all of its customers, which could violate a number of the copyright owner's exclusive rights, or to make a determination of scenes to be skipped or dialog to be muted and to offer to its viewers no more of a choice than to view an original or an altered version of that film. Some element of individualized preferences and control must be present such that the viewer exercises substantial choice over the types of content they choose to skip or mute. It is also important to emphasize that the new section 110(11) exemption is targeted narrowly and specifically at the act of ``making imperceptible'' limited portions of audio or video content of a motion picture during a performance that occurs in, or that is transmitted to, a private household for private home viewing. This section would not exempt from liability an otherwise infringing performance, or a transmission of a performance, during which limited portions of audio or video content of the motion picture are made imperceptible. In other words, where a performance in a household or a transmission of a performance to a household is done lawfully, the making imperceptible limited portions of audio or video content of the motion picture during that performance, consistent with the requirements of this new section, will not result in infringement liability. Similarly, an infringing performance in a household, or an infringing transmission of a performance to a household, are not rendered non-infringing by section 110(11) by virtue of the fact that limited portions of audio or video content of the motion picture being performed are made imperceptible during such performance or transmission in a manner consistent with that section. The bill also provides additional guidance, if not an exact definition, of what the term ``making imperceptible'' means. The bill provides specifically that the term ``making imperceptible'' does not include the addition of audio or video content that is performed or displayed over or in place of existing content in a motion picture. This is intended to make clear in the text of the statute what has been expressed throughout the consideration of this legislation, which is that the Family Movie Act does not enable the addition of content of any kind, including the making imperceptible of audio or video content by replacing it or by superimposing other content over it. In other words, for purposes of section 110(11), ``making imperceptible'' refers solely to skipping scenes and portions of scenes or muting audio content from the original, commercially available version of the motion picture. No other modifications of the content are addressed or immunized by this legislation. The House sponsor of this legislation noted in his explanation of his bill, and the Senate is also aware, that some copy protection technologies rely on matter placed into the audio or video signal. The phrase ``limited portions of audio or video content of a motion picture'' means what it would naturally seem to mean (i.e., the actual content of the motion picture) and does not refer to any component of a copy protection scheme or technology. This provision does not allow the skipping of technologies or other copy- protection-related matter for the purpose of defeating copy protection. Rather, it is expected that skipping and muting of content in the actual motion picture will be skipped or muted at the direction of the viewer based on that viewer's desire to avoid seeing or hearing the action or sound in the motion picture. Skipping or muting done for the purpose of or having the effect of avoiding copy protection technologies would be an abuse of the safe harbor outlined in this legislation and may violate section 1201 of title 17. Violating the Digital Millennium Copyright Act, and particularly its anti-circumvention provisions, is not necessary to enable technology of the kind contemplated under the Family Movie Act. Although the amendment to section 110 provides that it is not an infringement of copyright to engage in the conduct that is the subject of the Family Movie Act, the Act does not provide any exemption from the anti- circumvention provisions of section 1201 of title 17, or from any other provision of chapter 12 of title 17. It would not be a defense to a claim of violation of section 1201 that the circumvention is for the purpose of engaging in the conduct covered by this new exemption in section 110(11), just as it is not a defense under section 1201 that the circumvention is for the purpose of engaging in any other non-infringing conduct. There are a number of companies currently providing the type of products and services covered by this Act. The Family Movie Act is intended to facilitate the offering of such products and services, and it certainly creates no impediment to the technology employed by those companies. Indeed, it is important to underscore the fact that the support for such technology and consumer offerings that is reflected in this legislation is driven in some measure by the desire for copyright law to be respected and to ensure that technology is deployed in a way that supports the continued creation and protection of entertainment and information products that rely on copyright protection. This legislation reflects the firm expectation that those rights and the interests of viewers in their homes can work together in the context defined in this bill. Any suggestion that support for the exercise of viewer choice in modifying their viewing experience of copyrighted works requires violation of either the copyright in the work or of the copy protection schemes that provide protection for such work should be rejected as counter to legislative intent or technological necessity. The House-passed bill included an explicit exclusion to the new section 110(11) exemption in cases involving the making imperceptible of commercial advertisements or network or station promotional announcements. This provision was added on the House floor to respond to concerns expressed by Members during the House Judiciary Committee markup that the bill might be read somehow to exempt from copyright infringement liability devices that allow for skipping of advertisements in the playback of recorded television (so called ``ad-skipping'' devices). Such a reading is not consistent with the language of the bill or its intent. The phrase ``limited portions of audio or video content of a motion picture'' applies only to the skipping and muting of scenes or dialog that are part of the motion picture itself, and not to the skipping of commercial advertisements, which are themselves considered motions pictures under the Copyright Act. It also should be noted that 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 (including a commercial advertisement) is made imperceptible, the section 110(11) exemption would not apply. The House-passed bill adopted a ``belt and suspenders'' approach to this question by adding exclusionary language in the statute itself. Ultimately that provision raised concerns in the Senate that such exclusionary language would result in an inference that the bill somehow expresses an opinion, or even decides, the unresolved legal questions underlying recent litigation related to these so-called ``ad-skipping'' devices. In the meantime, the Copyright Office also made clear that such exclusionary language is not necessary. In other words, the exclusionary language created unnecessary controversy without adding any needed clarity to the statute. Thus, the Senate amendment omits the exclusionary language while leaving the scope and application of the bill exactly as it was when it passed the House. The legislation does not provide a defense in cases involving so-called ``ad- skipping'' devices, and it also does not affect the legal issues underlying such litigation, one way or another. Consistent with the intent of the legislation to fix a narrow and specific copyright issue, this bill seeks very clearly to avoid unnecessarily interfering with current business models, especially with respect to advertising, promotional announcements, and the like. Simply put, the bill as amended in the Senate is narrowly targeted to the use of technologies and services that filter out content in movies that a viewer finds objectionable, and it in no way relates to or affects the legality of so-called ``ad-skipping'' technologies. 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. Related to this point, during consideration of this legislation in the House there were conflicting expert opinions on whether fixation is required to infringe the derivative work right under the Copyright Act, as well as whether evidence of Congressional intent in enacting the 1976 Copyright Act supports the notion that fixation should not be a prerequisite for the preparation of an infringing derivative work. This legislation should not be construed to be predicated on or to take a position on whether fixation is necessary to violate the derivative work right, or whether the conduct that is immunized by this legislation would be infringing in the absence of this legislation. Subsection (b) also provides a savings clause to make clear that the newly- created copyright exemption is not to be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. Subsection (c): Exemption from Trademark Infringement Subsection (c) provides for a limited exemption from trademark infringement for those engaged in the conduct described in the new section 110(11) of the Copyright Act. In short, this subsection makes clear that a person engaging in the conduct described in section 110(11)--the ``making imperceptible'' of portions of audio or video content of a motion picture or the creation or provision of technology to enable such making available--is not subject to trademark infringement liability based on that conduct, provided that person's conduct complies with the requirements of section 110(11). This section provides a similar exemption for a manufacturer, licensee or licensor of technology that enables such making imperceptible, but such manufacturer, licensee or licensor is subject to the additional requirement that it ensure that the technology provides 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 the copyright holder. Of course, nothing in this section would immunize someone whose conduct, apart from the narrow conduct described by 110(11), rises to the level of a Lanham Act violation. For example, someone who provides technology to enable the making imperceptible limited portions of a motion picture consistent with section 110(11) could not be held liable on account of such conduct under the Trademark Act, but if in providing such . . .

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce with my colleagues, Senators Feinstein, Grassley, Kyl, and Cornyn, a comprehensive bipartisan bill to increase gang prosecution and prevention efforts. The bill I introduce today is identical to S. 1735 that was favorably reported by the Senate Judiciary Committee in the 108th Congress. This legislation, ``The Gang Prevention and Effective Deterrence Act of 2005,'' authorizes approximately $650 million over the next five years to support law enforcement and efforts to prevent youngsters from joining gangs. Of that, $450 million would be used to support Federal, State and local law enforcement efforts against violent gangs, and $200 million would be used for intervention and prevention programs for at- risk youth. The bill increases funding for the Federal prosecutors and Federal Bureau of Investigation (FBI) agents needed to conduct coordinated enforcement efforts against violent gangs. This bill also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, enacts violent crime reforms needed to prosecute effectively gang members, and implements a limited reform of the juvenile justice system to facilitate Federal prosecution of 16- and 17-year-old gang members who commit serious violent felonies. The problem of gang violence in America is not a new one, nor is it a problem that is limited to major urban areas. Once thought to be only a problem in our Nation's largest cities, gangs have invaded smaller communities. Gangs in Salt Lake County result in significant measure from the influence of gangs existing in Los Angeles and Chicago, but with local mutations. Constituents frequently mention to me their extreme concern about gang violence in Utah. According to the Salt Lake Area Gang Project, a multi-jurisdictional task force created in 1989 to fight gang crime in the Salt Lake area, there are at least 250 identified gangs in Utah with over 3,500 members. In Utah, there are street gangs that are ethnically oriented, such as Hispanic gangs, as well as those affiliated with gangs from other cities, such as the Crips and Bloods, Folks and People, motorcycle gangs, Straight Edge gangs, Animal Liberation Front, Skinheads, Varrio Loco Town, Oquirrh Shadow Boys, Salt Lake Posse, and the list goes on. Some of these gangs are racist; some are extremist. And what I find particularly troubling is that over one-third of the total gang membership is made up of juveniles. Thus, these crimes have a particular impact on youths. Gangs now resemble organized crime syndicates which readily engage in gun violence, illegal gun trafficking, illegal drug trafficking and other serious crimes. All too often we read in the headlines about gruesome and tragic stories of rival gang members gunned down, innocent bystanders--adults, teenagers and children--caught in the cross fire of gangland shootings, and family members crying out in grief as they lose loved ones to the gang wars plaguing our communities. Recent studies confirm that gang violence is an increasing problem in all of our communities. Based on the latest available National Youth Gang Survey, it is now estimated that there are more than 25,000 gangs, and over 750,000 gang members who are active in more than 3,000 jurisdictions across the United States. The most current reports indicate that in 2002 alone, after five years of decline, gang membership has spiked nationwide. I have been--and remain--committed to supporting Federal, State and local task forces as a model for effective gang enforcement strategies. Working together, these task forces have demonstrated that they can make a difference in the community. In Salt Lake City, the Metro Gang Multi-Jurisdiction Task Force stands out as a critical player in fighting gang violence in Salt Lake City. We need to reassure outstanding organizations like this that there will be adequate resources available to expand and fund these critical task force operations to fight gang violence. In my study of this problem, it has become clear that the government needs to work with communities to meet this problem head-on and defeat it. If we really want to reduce gang violence, we must ensure that law enforcement has adequate resources and legal tools, and that our communities have the ability to implement proven intervention and prevention strategies, so that gang members who are removed from the community are not simply replaced by the next generation of new gang members. In closing, I want to commend my colleagues--Senators Feinstein, Grassley, Kyl and Cornyn. They have worked very closely with me as we considered these issues last Congress and I look forward to working with them and others as we proceed this year. I urge my colleagues to join with us in promptly passing this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Family Entertainment and Copyright Act of 2005. This important legislation consists of a package of smaller intellectual property bills that the House and Senate have been working to enact since last Congress. This legislation passed the Senate not once, but twice, during the waning days of the last Congress. Unfortunately, though, it was doomed by a non-germane amendment unrelated to intellectual property law. My hope is that we can work together this Congress to avoid this type of pitfall, and I commit to work with other members to do so. Before beginning my substantive discussion of the bill, I would like to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their ongoing efforts on this legislation. Just as it was last year, this legislation is a group effort, and I want to take care to recognize the contributions and their excellent work along with that of Representatives Sensenbrenner, Smith, Berman, and Conyers in the House. Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman Lamar Smith and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios. Title I of this Act, the Artists' Rights and Theft Prevention Act of 2005, (the ART Act), contains a slightly modified version of S. 1932, authored by Senators Cornyn and Feinstein in the 108th Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet. First, it criminalizes attempts to record movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release of a film. Several States have already taken steps to criminalize this activity, but providing a uniform Federal law--instead of a patchwork of State criminal statutes--will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures. Second, the bill will create a pre-registration system that will permit criminal penalties and statutory-damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works. Title II of this Act, the Family Movie Act of 2005 (the FMA), resolves some ongoing disputes about the legality of so-called ``jump- and-skip'' technologies that companies like Clearplay in my home State of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The FMA creates a narrowly defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. I have been working with my colleagues in the Senate and several leaders in the House-- including, most importantly Chairmen Smith and Sensenbrenner--for the past couple of years to resolve this issue. The FMA will help to end aggressive litigation threatening the viability of small companies like Clearplay which are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences. The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called ``ad-skipping'' technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to ``ad- skipping''' cases, such as in the recent litigation involving ReplayTV. In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent ``ad- skipping'' litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill. 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. This bill also differs from the version passed by the House last year in that it adds two ``savings clauses.'' The copyright savings clause makes clear that there should be no spillover effect from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The trademark savings clause clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement. Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films--often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations. As a conservative Senator from a socially conservative state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically significant films are preserved for future generations. I commend my friend from Vermont for his perseverance in reauthorizing Federal funds to continue this important effort. Title IV of this act, the ``Preservation of Orphan Works Act,'' also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House--Representative Howard Berman of California--for his efforts on this bill and am pleased to see it included in this Senate package. Just to conclude, I will again thank Ranking Democratic Member Leahy, Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr. Conyers and Mr. Berman for their bicameral, bipartisan approach to these bills and to intellectual property issues generally. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH. I would be happy to yield for a question from the distinguished Senator from Texas.

Mr. HATCH. I thank my friend, the Senator from Texas, for that reminder. I would certainly have no objection to entering our previous colloquy into the Record again and ask unanimous consent that it appear after our remarks.

Mr. HATCH. Mr. President, Section 102 of the ART Act establishes a new provision of Title 18 entitled, ``Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility.'' I ask Senator Cornyn, what is the purpose of this provision?

Mr. HATCH. I have heard it said that this bill could be used against a salesperson or a customer at stores such as Best Buy or Circuit City if he or she were to point a video camera at a television screen showing a movie. Is this cause for concern?

Mr. HATCH. Does the Senator from California agree with your colleague from Texas?

Mr. HATCH. I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Mr. HATCH. Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

Mr. HATCH. It appears that there is no fair use exception to this provision. Is that correct?

Mr. HATCH. Does the Senator from Texas agree?

Mr. HATCH. I would be happy to yield for a question from the distinguished Senator from Texas.

Mr. HATCH. My cosponsor, Senator Cornyn, raises an important point. While we removed the ``ad-skipping'' language from the statute to avoid this unnecessary controversy, you are absolutely correct that this does not in any way change the scope of the bill. The bill 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 a product would be infringing. This legislation does not in any way deal with that issue. It means simply that such a product is not immunized from liability by this exemption.

Mr. HATCH. Certainly.

Mr. HATCH. Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today. The analysis follows. Section-by-Section Analysis of the Family Movie Act of 2004, Amended and Passed by the Senate overview Title II of the Family Entertainment and Copyright Act of 2004 incorporates the House-passed provision of the Family Movie Act of 2004, with limited changes as reflected in this section-by-section analysis. As discussed herein, these changes are not intended to and do not affect the scope, effect or application of the bill. The purpose of the Family Movie Act is to empower private individuals to use technology to skip and mute material that they find objectionable in movies, without impacting established doctrines of copyright or trademark law or those whose business models depend upon advertising. This amendment to the law should be narrowly construed to effect its intended purpose only. The sponsors of the legislation have been careful to tailor narrowly the legislation to clearly allow specific, consumer-directed activity and not to open or decide collateral issues or to affect any other potential or actual disputes in the law. The bill as proposed in the Senate makes clear that, under certain conditions, ``making imperceptible'' of limited portions of audio or video content of a motion picture--that is, skipping and muting limited portions of movies without adding any content--as well as the creation or provision of a computer program or other technology that enables such making imperceptible, does not violate existing copyright or trademark laws. That is true whether the movie is on prerecorded media, like a DVD, or is transmitted to the home, as through pay-per-view and ``video-on-demand'' services. Subsection (a): Short Title Subsection (a) sets forth the short title of the bill as the Family Movie Act of 2004. Subsection (b): Exemption from Copyright and Trademark Infringement for Skipping of Audio or Video Content of Motion Pictures Subsection (b) is the Family Movie Act core provision and creates a new exemption at section 110(11) of the Copyright Act for the ``making imperceptible'' of limited portions of audio or video content of a motion picture during a performance in a private household. This new exemption sets forth a number of conditions to ensure that it achieves its intended effect while remaining carefully circumscribed and avoiding any unintended consequences. The conditions that allow an exemption, which are discussed in more detail below, consist of the following: The making imperceptible must be ``by or at the direction of a member of a private household.'' This legislation contemplates that any altered performances of the motion picture would be made either directly by the viewer or at the direction of a viewer where the viewer is exercising substantial choice over the types of content they choose to skip or mute. The making imperceptible must occur ``during a performance in or transmitted to the household for private home viewing.'' Thus, this provision does not exempt an unauthorized ``public performance'' of an altered version. The making imperceptible must be ``from an authorized copy of a motion picture.'' Thus, skipping and muting from an unauthorized or ``bootleg'' copy of a motion picture would not be exempt. No ``fixed copy'' of the altered version of the motion picture may be created by the computer program or other technology that makes imperceptible portions of the audio or video content of the motion picture. This provision makes clear that services or technologies that make a fixed copy of the altered version are not afforded the benefit of this exemption. The ``making imperceptible'' of limited portions of a motion picture does not include the addition of audio or video content over or in place of other content, such as placing a modified image of a person, a product, or an advertisement in place of another, or adding content of any kind. These limitations, and other operative provisions of this new section 110(11) exemption, merit further elaboration as to their purposes and effects. The bill makes clear that the ``making imperceptible'' of limited portions of audio or video content of a motion picture must be done by or at the direction of a member of a private household. While this limitation does not require that the individual member of the private household exercise ultimate decision-making over each and every scene or element of dialog in the motion picture that is to be made imperceptible, it does require that the making imperceptible be made at the direction of that individual in response to the individualized preferences expressed by that individual. The test of ``at the direction of an individual'' would be satisfied when an individual selects preferences from among options that are offered by the technology. An example is the C1earPlay model. C1earPlay provides so- called `` filter files'' that allow a viewer to express his or her preferences in a number of different categories, including language, violence, drug content, sexual content, and several others. The version of the movie that the viewer sees depends upon the preferences expressed by that viewer. Such a model would fall under the liability limitation of the Family Movie Act. This limitation, however, would not allow a program distributor, such as a provider of video-on-demand services, a cable or satellite channel, or a broadcaster, to make imperceptible limited portions of a movie in order to provide an altered version of that movie to all of its customers, which could violate a number of the copyright owner's exclusive rights, or to make a determination of scenes to be skipped or dialog to be muted and to offer to its viewers no more of a choice than to view an original or an altered version of that film. Some element of individualized preferences and control must be present such that the viewer exercises substantial choice over the types of content they choose to skip or mute. It is also important to emphasize that the new section 110(11) exemption is targeted narrowly and specifically at the act of ``making imperceptible'' limited portions of audio or video content of a motion picture during a performance that occurs in, or that is transmitted to, a private household for private home viewing. This section would not exempt from liability an otherwise infringing performance, or a transmission of a performance, during which limited portions of audio or video content of the motion picture are made imperceptible. In other words, where a performance in a household or a transmission of a performance to a household is done lawfully, the making imperceptible limited portions of audio or video content of the motion picture during that performance, consistent with the requirements of this new section, will not result in infringement liability. Similarly, an infringing performance in a household, or an infringing transmission of a performance to a household, are not rendered non-infringing by section 110(11) by virtue of the fact that limited portions of audio or video content of the motion picture being performed are made imperceptible during such performance or transmission in a manner consistent with that section. The bill also provides additional guidance, if not an exact definition, of what the term ``making imperceptible'' means. The bill provides specifically that the term ``making imperceptible'' does not include the addition of audio or video content that is performed or displayed over or in place of existing content in a motion picture. This is intended to make clear in the text of the statute what has been expressed throughout the consideration of this legislation, which is that the Family Movie Act does not enable the addition of content of any kind, including the making imperceptible of audio or video content by replacing it or by superimposing other content over it. In other words, for purposes of section 110(11), ``making imperceptible'' refers solely to skipping scenes and portions of scenes or muting audio content from the original, commercially available version of the motion picture. No other modifications of the content are addressed or immunized by this legislation. The House sponsor of this legislation noted in his explanation of his bill, and the Senate is also aware, that some copy protection technologies rely on matter placed into the audio or video signal. The phrase ``limited portions of audio or video content of a motion picture'' means what it would naturally seem to mean (i.e., the actual content of the motion picture) and does not refer to any component of a copy protection scheme or technology. This provision does not allow the skipping of technologies or other copy- protection-related matter for the purpose of defeating copy protection. Rather, it is expected that skipping and muting of content in the actual motion picture will be skipped or muted at the direction of the viewer based on that viewer's desire to avoid seeing or hearing the action or sound in the motion picture. Skipping or muting done for the purpose of or having the effect of avoiding copy protection technologies would be an abuse of the safe harbor outlined in this legislation and may violate section 1201 of title 17. Violating the Digital Millennium Copyright Act, and particularly its anti-circumvention provisions, is not necessary to enable technology of the kind contemplated under the Family Movie Act. Although the amendment to section 110 provides that it is not an infringement of copyright to engage in the conduct that is the subject of the Family Movie Act, the Act does not provide any exemption from the anti- circumvention provisions of section 1201 of title 17, or from any other provision of chapter 12 of title 17. It would not be a defense to a claim of violation of section 1201 that the circumvention is for the purpose of engaging in the conduct covered by this new exemption in section 110(11), just as it is not a defense under section 1201 that the circumvention is for the purpose of engaging in any other non-infringing conduct. There are a number of companies currently providing the type of products and services covered by this Act. The Family Movie Act is intended to facilitate the offering of such products and services, and it certainly creates no impediment to the technology employed by those companies. Indeed, it is important to underscore the fact that the support for such technology and consumer offerings that is reflected in this legislation is driven in some measure by the desire for copyright law to be respected and to ensure that technology is deployed in a way that supports the continued creation and protection of entertainment and information products that rely on copyright protection. This legislation reflects the firm expectation that those rights and the interests of viewers in their homes can work together in the context defined in this bill. Any suggestion that support for the exercise of viewer choice in modifying their viewing experience of copyrighted works requires violation of either the copyright in the work or of the copy protection schemes that provide protection for such work should be rejected as counter to legislative intent or technological necessity. The House-passed bill included an explicit exclusion to the new section 110(11) exemption in cases involving the making imperceptible of commercial advertisements or network or station promotional announcements. This provision was added on the House floor to respond to concerns expressed by Members during the House Judiciary Committee markup that the bill might be read somehow to exempt from copyright infringement liability devices that allow for skipping of advertisements in the playback of recorded television (so called ``ad-skipping'' devices). Such a reading is not consistent with the language of the bill or its intent. The phrase ``limited portions of audio or video content of a motion picture'' applies only to the skipping and muting of scenes or dialog that are part of the motion picture itself, and not to the skipping of commercial advertisements, which are themselves considered motions pictures under the Copyright Act. It also should be noted that 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 (including a commercial advertisement) is made imperceptible, the section 110(11) exemption would not apply. The House-passed bill adopted a ``belt and suspenders'' approach to this question by adding exclusionary language in the statute itself. Ultimately that provision raised concerns in the Senate that such exclusionary language would result in an inference that the bill somehow expresses an opinion, or even decides, the unresolved legal questions underlying recent litigation related to these so-called ``ad-skipping'' devices. In the meantime, the Copyright Office also made clear that such exclusionary language is not necessary. In other words, the exclusionary language created unnecessary controversy without adding any needed clarity to the statute. Thus, the Senate amendment omits the exclusionary language while leaving the scope and application of the bill exactly as it was when it passed the House. The legislation does not provide a defense in cases involving so-called ``ad- skipping'' devices, and it also does not affect the legal issues underlying such litigation, one way or another. Consistent with the intent of the legislation to fix a narrow and specific copyright issue, this bill seeks very clearly to avoid unnecessarily interfering with current business models, especially with respect to advertising, promotional announcements, and the like. Simply put, the bill as amended in the Senate is narrowly targeted to the use of technologies and services that filter out content in movies that a viewer finds objectionable, and it in no way relates to or affects the legality of so-called ``ad-skipping'' technologies. 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. Related to this point, during consideration of this legislation in the House there were conflicting expert opinions on whether fixation is required to infringe the derivative work right under the Copyright Act, as well as whether evidence of Congressional intent in enacting the 1976 Copyright Act supports the notion that fixation should not be a prerequisite for the preparation of an infringing derivative work. This legislation should not be construed to be predicated on or to take a position on whether fixation is necessary to violate the derivative work right, or whether the conduct that is immunized by this legislation would be infringing in the absence of this legislation. Subsection (b) also provides a savings clause to make clear that the newly- created copyright exemption is not to be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. Subsection (c): Exemption from Trademark Infringement Subsection (c) provides for a limited exemption from trademark infringement for those engaged in the conduct described in the new section 110(11) of the Copyright Act. In short, this subsection makes clear that a person engaging in the conduct described in section 110(11)--the ``making imperceptible'' of portions of audio or video content of a motion picture or the creation or provision of technology to enable such making available--is not subject to trademark infringement liability based on that conduct, provided that person's conduct complies with the requirements of section 110(11). This section provides a similar exemption for a manufacturer, licensee or licensor of technology that enables such making imperceptible, but such manufacturer, licensee or licensor is subject to the additional requirement that it ensure that the technology provides 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 the copyright holder. Of course, nothing in this section would immunize someone whose conduct, apart from the narrow conduct described by 110(11), rises to the level of a Lanham Act violation. For example, someone who provides technology to enable the making imperceptible limited portions of a motion picture consistent with section 110(11) could not be held liable on account of such conduct under the Trademark Act, but if in providing such . . .

Mr. HATCH

Mr. HATCH. Mr. President, I think I can do mine in 5 minutes, maybe less.

Mr. HATCH

Mr. HATCH. Mr. President, I have to say that Howard Liebengood was one of my dear friends and I think he was a dear friend to virtually everybody in the Senate on both sides of the aisle. What a good man. What can I say about Howard Liebengood? That he was a loving, caring family man who placed his lovely wife, Deanna, and their wonderful children, Howie, John, and Ann, above all else? That he was the consummate Capitol insider, who managed to retain humility and kindness while rising to the pinnacle of Washington's power structure? That he was an accomplished lawyer, businessman, and military hero who never forgot his small-town roots in this often heartless big town? That he was a man of faith, whose church was a source of strength in the hardest of times? I can say all of these things--and more. I have been proud and humbled to call Howard Liebengood a friend. He was a trusted adviser to me and so many other Senators. He was my neighbor in Virginia, and we often drove to work together. When I had my Achilles' tendon rupture--completely severed my tendon--Howard and I rode together every day. Those were some of the most wonderful times I've had. We shared some wonderful times; I always looked forward to his keen observations and his wry good wit and very strong intelligence. I knew what many in this body knew about Howard, that we could always count on him to listen, and care, and act--not in his own self- interest, but for the greater good. Howard was so successful in our world, yet he was never driven by money, fame or desire. His many accomplishments--the Bronze Star, his work in the Senate on the Watergate Committee, as our Sergeant at Arms, as Chief of Staff to two of our greatest Senators--tell volumes about Howard, but they do not reveal the inner peace and calm that made him such a wonderful, wonderful part of this institution, a tribute to all that is good in public service. What more can you ask in a man? Nothing. Howard did it all. Howard had it all. His loss is so great. Our loss is so great. This body will mourn his loss for so many years to come. I know all here today join in sending both our deepest sympathies to the Liebengood family, and our profound admiration for Howard S. Liebengood--husband, father and trusted public servant. I knew him personally very well. He was kind. He was considerate. He was helpful. He was always down the middle. He was someone to rely on. Let us celebrate his life today and all that was so good in this man, even as we mourn Howard S. Liebengood's tragic passing at too early a time.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to express my support for Mr. Carlos Gutierrez as our new Secretary of Commerce. Considering the global nature of the marketplace, Carlos Gutierrez is an outstanding choice for Secretary of Commerce. Without a doubt, Mr. Gutierrez possesses the necessary skills to assume this important position. His skillful leadership has brought strong growth and success to one of the world's most notable companies. Because of his many years with the Kellogg Company, Mr. Gutierrez understands how to create jobs and foster greater opportunity for all Americans. I believe that Mr. Gutierrez will do an excellent job in creating conditions for economic growth and opportunity by promoting innovation, entrepreneurship, competitiveness, and stewardship. Consumer demand, rising sales, and increased profits are creating confidence in the growing economy. For example, in my home State, the Utah Department of Workforce Services confirms that Utah added 32,200 new jobs in 12 months ending on October 31, 2004, and the Salt Lake City-Ogden metro area topped the list of U.S. cities in the growth rate of women-owned businesses. According to the Department of Labor, Utah ranks third in terms of the largest one-year percentage gains in non- farm employment. And, just recently, Forbes magazine named Headwaters, Inc., a Utah-based alternative energy technology company, as second of the top 200 best small companies in the United States. These are just a few of many indicators proving that President Bush's policies are succeeding in creating jobs and expanding the economy. I look forward to working with Mr. Gutierrez, as he is undoubtedly qualified and prepared to take the helm of the Commerce Department. Of course, Mr. Gutierrez has many challenges ahead of him, but I am confident that he will serve our country with dedication and distinction.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my support for Ms. Margaret Spellings as our new Secretary of Education. This is a key position at a key time. As I travel around the great State of Utah, there is no single issue area of greater concern than education. I am proud of the way Utah has been educating the children of my State. Our schools and teachers are among some of the best anywhere. Although we spend less per student than many other States, we are getting a great bang for our buck. As a strong supporter of education, I have been pleased to play an active role in every piece of education reform legislation that has come before the Congress in the past 28 years. I attended public schools, as did my children and now my grandchildren, and I have faith in our Nation's schools. I look forward to working closely with Ms. Spellings and the Department of Education, particularly as I return to the Senate Committee on Health, Education, Labor, and Pensions. I have been impressed by the President's complete confidence in Ms. Spellings and her ability to serve our Nation and its most valuable asset, our children, as our top educator. While Ms. Spellings' credentials and experience are very impressive, none is greater than her role as a mother and primary educator of her two daughters, Mary and Grace. Without a doubt, the home is the greatest classroom. We are all aware of Ms. Spellings' background of service in Texas as chief education advisor to then-Governor George W. Bush. I have been pleased to work with Ms. Spellings during the past four years in her capacity as the Assistant to the President for Domestic Policy. Since the announcement of her nomination by President Bush, I have received numerous letters in support of Ms. Spellings by various groups and individuals concerned about education issues. Education is the hallmark of domestic issues. While I believe our Nation's education system ranks among the finest in the world, we can still make improvements. Funding for schools is vital, and I have consistently supported federal funding to assist our Nation's teachers, schools, and students. I will continue to support programs to enrich and improve our school system. Ms. Spellings has indicated her strong commitment to the No Child Left Behind Act, NCLB, signed into law by President Bush on January 8, 2002. I have been supportive of NCLB. Even those who don't agree with everything in NCLB agree that they are now focused on making sure every child is progressing, and they are using innovative approaches to tracking student achievement and motivating them to meet the new standards. For example, an inner-city school in Utah with a large number of students in low-income, non-English-speaking families is using funds from NCLB to purchase a student tracking database that shows how each child is doing in each subject with every teacher. They know who needs the extra help and in what areas. They are enlisting the support of parents, teachers, and the community to make sure that these kids get the help they need. And they are having great results. Test scores are up. Honor roll is up. Parents are more satisfied. Students are taking pride in their education. And, that's what NCLB is all about. Of course, this does not mean the law is perfect. We need to fund it better, and too many schools do not make Annual Yearly Progress or AYP because they just do not understand what is required, or misinterpreted the law. I think it is going to take some time to adjust. We need to continue to do what is working in NCLB and look at what is not. Utah has been in the forefront of the debate and was one of the first States to make moves toward possibly opting out of No Child Left Behind, due in part to concerns about retaining State control and objections to federal mandates without sufficient funding. Make no mistake, I am a strong advocate for local control of education and want to make sure that there is sufficient flexibility for our States. I trust that the Department of Education will keep open lines of communication with the States and localities as we work together to ensure that truly no child is left behind. I was particularly pleased that during her hearing before the Senate HELP Committee, Ms. Spellings accepted my invitation to personally visit Utah to meet with legislators and educators there. We look forward to her visit. With her confirmation, Ms. Spellings will replace Secretary Roderick Paige. I would like to take a moment to note outgoing Secretary Roderick Paige's service. During his tenure, he led the implementation of major education reforms. He showed great commitment to providing our children a quality education, notwithstanding their circumstances, thereby honoring the pledge to leave no child behind. While so doing, Secretary Paige demonstrated willingness to consider certain adjustments in an effort to align the implementation of the No Child Left Behind Act with the intent of the law. We thank him for his service. Without a doubt, Ms. Spellings has many challenges ahead, but I am confident that she will serve our country with dedication and distinction. I yield the floor.

Mr. HATCH

Mr. HATCH. I would be happy to yield for a question from the distinguished Senator from Texas.

Mr. HATCH. My cosponsor, Senator Cornyn, raises an important point. While we removed the ``ad-skipping'' language from the statute to avoid this unnecessary controversy, you are absolutely correct that this does not in any way change the scope of the bill. The bill 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 a product would be infringing. This legislation does not in any way deal with that issue. It means simply that such a product is not immunized from liability by this exemption.

Mr. HATCH. Certainly.

Mr. HATCH. Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today. The analysis follows. Section-by-Section Analysis of the Family Movie Act of 2004, Amended and Passed by the Senate Overview Title II of the Family Entertainment and Copyright Act of 2004 incorporates the House-passed provision of the Family Movie Act of 2004, with limited changes as reflected in this section-by-section analysis. As discussed herein, these changes are not intended to and do not affect the scope, effect or application of the bill. The purpose of the Family Movie Act is to empower private individuals to use technology to skip and mute material that they find objectionable in movies, without impacting established doctrines of copyright or trademark law or those whose business models depend upon advertising. This amendment to the law should be narrowly construed to effect its intended purpose only. The sponsors of the legislation have been careful to tailor narrowly the legislation to clearly allow specific, consumer-directed activity and not to open or decide collateral issues or to affect any other potential or actual disputes in the law. The bill as proposed in the Senate makes clear that, under certain conditions, ``making imperceptible'' of limited portions of audio or video content of a motion picture--that is, skipping and muting limited portions of movies without adding any content--as well as the creation or provision of a computer program or other technology that enables such making imperceptible, does not violate existing copyright or trademark laws. That is true whether the movie is on prerecorded media, like a DVD, or is transmitted to the home, as through pay-per-view and ``video-on-demand'' services. Subsection (a): Short Title Subsection (a) sets forth the short title of the bill as the Family Movie Act of 2004. Subsection (b): Exemption From Copyright and Trademark Infringement for Skipping of Audio or Video Content of Motion Pictures Subsection (b) is the Family Movie Act's core provision and creates a new exemption at section 110(11) of the Copyright Act for the ``making imperceptible'' of limited portions of audio or video content of a motion picture during a performance in a private household. This new exemption sets forth a number of conditions to ensure that it achieves its intended effect while remaining carefully circumscribed and avoiding any unintended consequences. The conditions that allow an exemption, which are discussed in more detail below, consist of the following: The making imperceptible must be ``by or at the direction of a member of a private household.'' This legislation contemplates that any altered performances of the motion picture would be made either directly by the viewer or at the direction of a viewer where the viewer is exercising substantial choice over the types of content they choose to skip or mute. The making imperceptible must occur ``during a performance in or transmitted to the household for private home viewing.'' Thus, this provision does not exempt an unauthorized ``public performance'' of an altered version. The making imperceptible must be ``from an authorized copy of a motion picture.'' Thus, skipping and muting from an unauthorized or ``bootleg'' copy of a motion picture would not be exempt. No ``fixed copy'' of the altered version of the motion picture may be created by the computer program or other technology that makes imperceptible portions of the audio or video content of the motion picture. This provision makes clear that services or technologies that make a fixed copy of the altered version are not afforded the benefit of this exemption. The ``making imperceptible'' of limited portions of a motion picture does not include the addition of audio or video content over or in place of other content, such as placing a modified image of a person, a product, or an advertisement in place of another, or adding content of any kind. These limitations, and other operative provisions of this new section 110(11) exemption, merit further elaboration as to their purposes and effects. The bill makes clear that the ``making imperceptible'' of limited portions of audio or video content of a motion picture must be done by or at the direction of a member of a private household. While this limitation does not require that the individual member of the private household exercise ultimate decision-making over each and every scene or element of dialog in the motion picture that is to be made imperceptible, it does require that the making imperceptible be made at the direction of that individual in response to the individualized preferences expressed by that individual. The test of ``at the direction of an individual'' would be satisfied when an individual selects preferences from among options that are offered by the technology. An example is the C1earPlay model. C1earPlay provides so- called ``filter files'' that allow a viewer to express his or her preferences in a number of different categories, including language, violence, drug content, sexual content, and several others. The version of the movie that the viewer sees depends upon the preferences expressed by that viewer. Such a model would fall under the liability limitation of the Family Movie Act. This limitation, however, would not allow a program distributor, such as a provider of video-on-demand services, a cable or satellite channel, or a broadcaster, to make imperceptible limited portions of a movie in order to provide an altered version of that movie to all of its customers, which could violate a number of the copyright owner's exclusive rights, or to make a determination of scenes to be skipped or dialog to be muted and to offer to its viewers no more of a choice than to view an original or an altered version of that film. Some element of individualized preferences and control must be present such that the viewer exercises substantial choice over the types of content they choose to skip or mute. It is also important to emphasize that the new section 110(11) exemption is targeted narrowly and specifically at the act of ``making imperceptible'' limited portions of audio or video content of a motion picture during a performance that occurs in, or that is transmitted to, a private household for private home viewing. This section would not exempt from liability an otherwise infringing performance, or a transmission of a performance, during which limited portions of audio or video content of the motion picture are made imperceptible. In other words, where a performance in a household or a transmission of a performance to a household is done lawfully, the making imperceptible limited portions of audio or video content of the motion picture during that performance, consistent with the requirements of this new section, will not result in infringement liability. Similarly, an infringing performance in a household, or an infringing transmission of a performance to a household, are not rendered non-infringing by section 110(11) by virtue of the fact that limited portions of audio or video content of the motion picture being performed are made imperceptible during such performance or transmission in a manner consistent with that section. The bill also provides additional guidance, if not an exact definition, of what the term ``making imperceptible'' means. The bill provides specifically that the term ``making imperceptible'' does not include the addition of audio or video content that is performed or displayed over or in place of existing content in a motion picture. This is intended to make clear in the text of the statute what has been expressed throughout the consideration of this legislation, which is that the Family Movie Act does not enable the addition of content of any kind, including the making imperceptible of audio or video content by replacing it or by superimposing other content over it. In other words, for purposes of section 110(11), ``making imperceptible'' refers solely to skipping scenes and portions of scenes or muting audio content from the original, commercially available version of the motion picture. No other modifications of the content are addressed or immunized by this legislation. The House sponsor of this legislation noted in his explanation of his bill, and the Senate is also aware, that some copy protection technologies rely on matter placed into the audio or video signal. The phrase ``limited portions of audio or video content of a motion picture'' means what it would naturally seem to mean (i.e., the actual content of the motion picture) and does not refer to any component of a copy protection scheme or technology. This provision does not allow the skipping of technologies or other copy-protection- related matter for the purpose of defeating copy protection. Rather, it is expected that skipping and muting of content in the actual motion picture will be skipped or muted at the direction of the viewer based on that viewer's desire to avoid seeing or hearing the action or sound in the motion picture. Skipping or muting done for the purpose of or having the effect of avoiding copy protection technologies would be an abuse of the safe harbor outlined in this legislation and may violate section 1201 of title 17. Violating the Digital Millennium Copyright Act, and particularly its anti-circumvention provisions, is not necessary to enable technology of the kind contemplated under the Family Movie Act. Although the amendment to section 110 provides that it is not an infringement of copyright to engage in the conduct that is the subject of the Family Movie Act, the Act does not provide any exemption from the anti- circumvention provisions of section 1201 of title 17, or from any other provision of chapter 12 of title 17. It would not be a defense to a claim of violation of section 1201 that the circumvention is for the purpose of engaging in the conduct covered by this new exemption in section 110(11), just as it is not a defense under section 1201 that the circumvention is for the purpose of engaging in any other non-infringing conduct. There are a number of companies currently providing the type of products and services covered by this Act. The Family Movie Act is intended to facilitate the offering of such products and services, and it certainly creates no impediment to the technology employed by those companies. Indeed, it is important to underscore the fact that the support for such technology and consumer offerings that is reflected in this legislation is driven in some measure by the desire for copyright law to be respected and to ensure that technology is deployed in a way that supports the continued creation and protection of entertainment and information products that rely on copyright protection. This legislation reflects the firm expectation that those rights and the interests of viewers in their homes can work together in the context defined in this bill. Any suggestion that support for the exercise of viewer choice in modifying their viewing experience of copyrighted works requires violation of either the copyright in the work or of the copy protection schemes that provide protection for such work should be rejected as counter to legislative intent or technological necessity. The House-passed bill included an explicit exclusion to the new section 110(11) exemption in cases involving the making imperceptible of commercial advertisements or network or station promotional announcements. This provision was added on the House floor to respond to concerns expressed by Members during the House Judiciary Committee markup that the bill might be read somehow to exempt from copyright infringement liability devices that allow for skipping of advertisements in the playback of recorded television (so called ``ad-skipping'' devices). Such a reading is not consistent with the language of the bill or its intent. The phrase ``limited portions of audio or video content of a motion picture'' applies only to the skipping and muting of scenes or dialog that are part of the motion picture itself, and not to the skipping of commercial advertisements, which are themselves considered motions pictures under the Copyright Act. It also should be noted that 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 (including a commercial advertisement) is made imperceptible, the section 110(11) exemption would not apply. The House-passed bill adopted a ``belt and suspenders'' approach to this question by adding exclusionary language in the statute itself. Ultimately that provision raised concerns in the Senate that such exclusionary language would result in an inference that the bill somehow expresses an opinion, or even decides, the unresolved legal questions underlying recent litigation related to these so-called ``ad- skipping'' devices. In the meantime, the Copyright Office also made clear that such exclusionary language is not necessary. In other words, the exclusionary language created unnecessary controversy without adding any needed clarity to the statute. Thus, the Senate amendment omits the exclusionary language while leaving the scope and application of the bill exactly as it was when it passed the House. The legislation does not provide a defense in cases involving so-called ``ad- skipping'' devices, and it also does not affect the legal issues underlying such litigation, one way or another. Consistent with the intent of the legislation to fix a narrow and specific copyright issue, this bill seeks very clearly to avoid unnecessarily interfering with current business models, especially with respect to advertising, promotional announcements, and the like. Simply put, the bill as amended in the Senate is narrowly targeted to the use of technologies and services that filter out content in movies that a viewer finds objectionable, and it in no way relates to or affects the legality of so-called ``ad-skipping'' technologies. 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. Related to this point, during consideration of this legislation in the House there were conflicting expert opinions on whether fixation is required to infringe the derivative work right under the Copyright Act, as well as whether evidence of Congressional intent in enacting the 1976 Copyright Act supports the notion that fixation should not be a prerequisite for the preparation of an infringing derivative work. This legislation should not be construed to be predicated on or to take a position on whether fixation is necessary to violate the derivative work right, or whether the conduct that is immunized by this legislation would be infringing in the absence of this legislation. Subsection (b) also provides a savings clause to make clear that the newly-created copyright exemption is not to be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. Subsection (c): Exemption From Trademark Infringement Subsection (c) provides for a limited exemption from trademark infringement for those engaged in the conduct described in the new section 110(11) of the Copyright Act. In short, this subsection makes clear that a person engaging in the conduct described in section 110(11)--the ``making imperceptible'' of portions of audio or video content of a motion picture or the creation or provision of technology to enable such making available--is not subject to trademark infringement liability based on that conduct, provided that person's conduct complies with the requirements of section 110(11). This section provides a similar exemption for a manufacturer, licensee or licensor of technology that enables such making imperceptible, but such manufacturer, licensee or licensor is subject to the additional requirement that it ensure that the technology provides 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 the copyright holder. Of course, nothing in this section would immunize someone whose conduct, apart from the narrow conduct described by 110(11), rises to the level of a Lanham Act violation. For example, someone who provides technology to enable the making imperceptible limited portions of a motion picture consistent with section 110(11) could not be held liable on account of such conduct under the Trademark Act, but if in providing such technology the person also makes an infringing use of a protected mark or engages in other ancillary conduct that is infringing, such conduct would not be subject to the exemption provided here. As amended by the Senate, the bill also makes clear that failure by a manufacturer, licensee, or licensor of technology to qualify for the exemption created by this subsection is not, by itself, enough to establish trademark infringement. Failure to qualify for the safe harbor from trademark liability merely means that the manufacturer, licensee, or other licensor of technology cannot assert an affirmative defense based on this exemption in a case where trademark infringement or some other violation of the Trademark Act is established. Subsection (d): Definition Subsection (d) provides definitional clarification regarding short-hand references throughout this section to the ``Trademark Act of 1946.''