The House has now joined the Senate in passing the Family Movie Act; the Act is almost sure to be signed into law soon by the President. (The Act is bundled with some unrelated provisions into a multi-part bill called the Family Entertainment and Copyright Act. Here I’ll focus only on Section 201, called the Family Movie Act, or “FMA”.)
Some people who haven’t read the FMA, or haven’t thought carefully enough about what it says, decry it as censorship. In fact, it is best understood as an anti-censorship proposal.
The Register, under the headline “Congress legalizes DVD Censorship” summarizes the FMA as follows:
It will soon become legal to alter a motion picture so long as all the sex, profanity, and violence have been edited out, thanks to a bill called the Family Movie Act…
Let’s look at what the FMA actually says:
[The following is not an infringement of copyright:]
the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.
There is nothing here (or elsewhere in the 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”. You can skip the clean parts if you want, as long as they make up only a limited portion, which may be the case for some movies. If the motion picture has commercials in it, you can skip the commercials. If you don’t like the soccer scenes in “Bend It Like Beckham”, you can watch the movie without them.
The soccer-free version of “Bend It Like Beckham” is speech. The FMA allows that speech to occur, by preventing a 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. That’s the purpose of the “from an authorized copy” and “no fixed copy” language – to ensure that a valid copy of the original work is needed in order to view the new, modified 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.