April 24, 2014

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"Censorship" Bill Lifts Ban on Speech

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.

Comments

  1. Crosbie Fitch says:

    This does effectively permit video remixing:
    1) Get a 400 DVD Jukebox
    2) Download Fred Blogg’s Super DVD mashup software program
    3) Ensure DVD jukebox contains the 50 or so DVDs necessary for this mashup.
    4) The mashup selectively makes imperceptible a limited portion of 49 of the 50 DVDs simultaneously played to the video output.

    NB ‘Re-ordering’ is simply a matter of playing back the same movie at staggered times, selecting which of those playbacks to use at any particular moment.

    So, as long as the viewer possesses all the necessary authorised copies, a computer program can legally create a derivative work for them (the copy of which is not fixed – of course).

    MOREOVER – the artist can supply an authorised copy of another DVD that they specifically grant the viewer permission to re-order and sample at will, e.g. providing context for the non-imperceptible bits of all the other DVDs.

  2. Ed Felten says:

    The FMA says that you can’t add material to a motion picture. All you can do is skip parts of it. So remixing is probably out.

  3. Ryan Shaw says:

    Technically, what Crosbie is describing isn’t adding material to a motion picture–as he said, it is skipping material from 50 motion pictures which the viewer is watching in rapid succession. Still, I think remixing is out because Section 202 only allows the making imperceptible of “limited portions of audio or video content of a motion picture,” which would probably rule out skipping 99% of a movie to include a single shot in a remix.

    Remixes aside, I don’t see this as a victory for free speech. The prohibition of adding material means I can’t have my machine add community provided subtitles, or commentary. Google can augment the web pages I view with useful information if I permit them to, why can’t TiVo augment the TV shows I view with use ful information if I permit them to?

  4. Ed Felten says:

    I think this is a victory for free speech, but a small one. I would prefer a version that lets people add subtitles, commentary, and more, as long as they have the right to view the original work. It’s certainly not a loss for free speech, as some commentators say.

  5. Crosbie Fitch says:

    Does the FMA prohibit people using a video mixing desk to add two or more video channels together?

    Incidentally, can I just check that it’s not actually possible for people to commit copyright infringement in the privacy of their own homes as long as no copies are distributed outside it? I presume copyright only takes effect when you distribute a work.

    I presumed this FMA was required precisely in order for a third party to distribute a mechanism that modified another work, i.e. the FMA is not about granting/specifying the rights of a householder, but that the rights of a copyright holder are not infringed by someone distributing a software device specifically designed to modify their copyrighted work.

    SO, with the FMA, this third party is now specifically permitted to distribute works that consist of “For Movie X perform the following advanceNsecs/blankNsecs instructions”.

    Obviously, this is pretty much sufficient to produce any order-preserved subset of video.

    However, given a set of several of these ‘subset’ works, and an implicit instruction to add the combined output on a video mixer, what you end up with is sufficient to create absolutely any re-ordering or intermingling of frame sequences.

    Now, you may think that no one is going to go and buy 50 or so DVDs necessary to produce the final combined work. You’d be right. However, that’s not the point.

    The point is, the FMA now permits artists to legitmately distribute ‘video subset programs’ without committing copyright infringement. An artist just says here’s a list of subset programs I’ve created – I call it my ‘Adjunct’ Album.

    It’ll be quite easy for the punter to locate the necessary movie ingredients via filesharing systems. Indeed, they probably just have to search for ‘Adjunct’ and they get the finished work. The FMA however, permits an artist to openly publish and take the credit for such works.

    So, this permits video mashups – derivative works prohibited prior to FMA.

    Excellent!

  6. Joe Liu says:

    I agree with Ed that the provision is mildly pro-speech, insofar as it permits third parties to effectively produce slightly modified versions of movies (thereby reducing the copyright owner’s ability to insist on a single, authorized version).

    But as drafted, the bill doesn’t seem to preclude a DMCA claim, as it is only a limitation on section 106 rights. Am I reading this right? (I confess I haven’t been following this all that closely). If so, then can movie studios still prevent this from happening via the DMCA?

    Finally, I love the way that the first clause of the bill reassures people that pushing the mute button while viewing a DVD is not copyright infringement. Glad we cleared that up.

  7. PrivacyWatch says:

    “But as drafted, the bill doesn’t seem to preclude a DMCA claim, as it is only a limitation on section 106 rights. Am I reading this right? (I confess I haven’t been following this all that closely). If so, then can movie studios still prevent this from happening via the DMCA?”

    And along the same lines, if the FMA doesn’t exempt companies from DMCA provisions, can studios refuse to license CSS or its future equivalent to companies who want to edit movies?

    It seems to me that the FMA would implicitly authorize all general purposed DeCSS software if it comes as part of a package that will let you edit the movie without re-ordering it. Likewise, DVRs that ignore the broadcast flag (which is an FCC rule, not an act of congress) to let you record DTV and burn an edited DVD-R. If not, the bill is pointless.

    The next question is whether trailers are “part of a motion picture” or just part of the DVD. Clearly parents can legitimately object to their children being subjected to ads.

  8. Crosbie Fitch says:

    Yup, it doesn’t look like the FMA requires that the producer of a movie enable a viewer to be able skip bits of it, just that it is not an infringement for a 3rd party to publish a device that allows them to skip bits of it – if they have an authorised copy to view in the first place.

    And I’d say that ads/trailers were part of a motion picture, even ‘still frames’.

    Incidentally, I forgot a couple of instructions. For mashup programs the following would be convenient:

    Play N seconds
    Pause N seconds
    Skip N seconds
    Blank screen

  9. Ulrich Hobelmann says:

    Isn’t modifying media (like using music samples or adding subtitles to a movie) a fair use right, as long as you pay royalties (for music samples) if you redistribute it?

    I think it should be, but I don’t have more any hope in this world’s law scene anyway.

  10. Seth Finkelstein says:

    Given that this is specificially targeted as speech which has the avowed goal of having other speech not be heard, I think the analysis needs to be more … nuanced. It’s distracting to debate whether or not the super-special ultra-magic word “censorship” is correct, as that’s in fact begging the question.

    I’m having bad flashbacks to the days when civil-libertarians were supposed to tout censorware as “speech”, because the blacklists were “opinions” as to what should not be read, and of course anyone is free to have an opinion – you wouldn’t be against opinions, would you?

  11. Crosbie Fitch says:

    To be distracting…

    Editorial control, bordering on censorship, is where someone wishes to publish a work via a channel, and the owner of the channel requires that either the work is modified or it is not made available, or more subtly, that access to the work is biased towards the modified version, e.g. by charging a premium for the original.

    Absolute censorship is where an absolute authority, such as the government, prevents/prohibits any and all publication of a work, in favour of a sanitised version (if any).

    Copyright is being used these days as a censor to prevent/prosecute a particular subset of free expression that is classified as ‘unauthorised derivative’.

    Luckily, we have the Internet (and the FMA) to facilitate the ethically just publication of unauthorised derivatives (so long as they’re not misattributed, or misrepresented as originals).

  12. Ed Felten says:

    Seth,

    I’m not just arguing about the word “censorship”; I’m also saying the bill is a good thing because it advances free speech values. The exemption from copyright law that this bill creates applies only to voluntary use of portion-skipping technology in a private home. The exemption does not apply to use that is mandatory, or to use in public places such as libraries or schools. It places no controls on the distribution of unmodified movies; but it does not authorize distribution, or even the making of a fixed copy, of the modified version.

  13. Seth Finkelstein says:

    Yes, I understand the scope of the bill. I’m saying that it’s too abstract to consider it “advances free speech values”, without taking into account that the only speech advanced is that which bowlderizes other speech (even in a volutary, private, parental, for-the-children, application). It’s not wrong. But it sure isn’t much of an advance. The context, narrowness, and application should be fully factored into consideration.

    I’m not claiming it’s negative. But it’s not exactly a large positive either.

    I finally wrote a post of my own on it:

    Family Entertainment and Copyright Act

  14. Dan S. says:

    It is my understanding that DVDs can be coded to instruct players to disable fast forwarding for certain sections of playback, and that manufacturers of DVD players are obligated to build their players to follow those instructions due to a contractual agreement with the DVD-CCA, to which they must agree to license DVD playing technology. Does the FMA override that contractual obligation with explicit permission for manufacturers to make players that ignore that instruction?

    Pardon me if that much is obvious, I just haven’t heard the DVD-CCA licensing agreement mentioned in the context of this bill yet. I’ve only heard the making of a particular kind of DVD player that skips portions of a “motion picture” described as copyright infringement, not license infringement.

  15. Crosbie Fitch says:

    The FMA doesn’t appear to undo anything, it simply permits the viewer to use a device (potentially supplied by a 3rd party) that ‘makes imperceptible’ parts of the authorised motion picture that they possess.

    The DVD-CCA governs the DVD player, not the viewer. It could be perfectly fine for the DVD player to possess no navigation controls whatsoever, e.g. Just power-on/play and power-off.

    FMA doesn’t require DVD players to provide navigation or skipping controls, it just says that if the viewer or a third party device was able to blank/skip parts of the movie that this wouldn’t be a copyright infringement.

    It doesn’t mean that signatories to DVD-CCA can suddenly break their contract.

  16. precision blogger says:

    SKIP THE ADS!
    I am pretty sure this act makes it legal for a device like TiVo to automatically skip over the ads in anything that can be described as a “motion picture”.

    Comments, please, does anyone agree?
    - precision blogger

  17. Dan S. says:

    If the provision or use of ad skipping features of PVRs were ever considered copyright infringement, then I suppose the FMA says they’re OK in that regard.

    But it doesn’t give me the complete power over a device that transmits or plays back a recording. If the media and playback technology are obligated to have limited skipping capability due to an encryption scheme, a strict licensing agreement for the decryption scheme forbidding such capability, and the DMCA forbidding circumvention, then I am still denied that capability. The FMA simply says a transparent LCD screen in front of my TV that’s programmed to black out at certain times does not violate the copyright of the work being shown on the TV.

    It sounds like neither media distributors nor playback device manufacturers are worried about such a device. Only the artists (those with a potential copyright claim) would be upset that their work is getting blocked, and people in general might be concerned that once the blocker device exists, it might be made mandatory in some venues (e.g. public libraries and schools). I personally wouldn’t argue that what the FMA makes legal ought not be, but I don’t see ad skippers (of the TiVo or DVD variety) benefitting from this in any practical way.

  18. Jean Camp says:

    As a person who is in debt to at least one excellent editor (Hi Bob!) I believe editors can add value by deleting content. I wonder that adding content is still prohibited. Is that indeed the case?

    Could directors and authors can make their own “cuts” of movies with the unapproved-by-marketing ending? It seems not unless the content is already distributed on the DVD.

    It will be interesting to see what fans do with this. There is tremendous fan literature most famously in sf. Will fans use this authorization to distribute their own cuts? Perhaps even develop a (I realize this is radical here) a competitive market or even create versions for differnt fan bases?

    ST NG with no Wesley seems an untapped market. Maybe I can buy a copy of Star Wars without Jar Jar Binks. I would actually watch all three. Alas adding voices of actual actors apparently would still violate the law.

    This is a law which makes content more not less maleable. Because I disagree with how the content may be shaped by consumers does not mean I disagree with the law itself.

  19. Ed Felten says:

    The FMA protects only subtraction from a work. It doesn’t protect addition of material to a work. Some additions may be fair use; but if they are, it’s not because of the FMA.

  20. Crosbie Fitch says:

    The law permits an artist to release a program that creates a derivative of a specific movie, where the derivative only has bits deleted. Call this program X.

    An artist is permitted (until the law changes to prevent self-publication) to create and publish their own video work. Call it Y.

    Let’s say their own work Y coincidentally consists of content precisely at the moment when content was missing due to X, and is blank otherwise.

    The artist simply publishes both X and Y on their web site and let’s their nefarious audience commit the crime of mixing the two together.

    So, it is now near as dammit legal for an artist to publish derivative works, i.e. as instructions, rather than a fixed copy of the final result.

  21. Crosbie Fitch says:

    The TV movie with commercials is an authorised derivative work combining one motion picture with several smaller motion picture commercials.

    However, the idea that the component commercials are still preserved as discreet motion pictures, would mean that each shot in a movie is also a discreet motion picture given it can be argued that the movie is comprised of a sequence of shots.

    Could it then be argued that each shot is composed of a sequence of camera moves, and then discreet frames? Which would mean that one can’t even drop a single frame given that each frame is a motion picture in its own right.

    The law is an ass – just ignore it.

  22. Neo says:

    The problem here is that the law is, indeed, an ass, but one ignores it at one’s peril. :P

  23. Crosbie Fitch says:

    I think the solution to stupid law that flies in the face of popular culture, is to observe the letter of the law, but to provide facilities to allow ‘the people’ to break it at their liberty.

    In other words, you provide a device that enables any kind of editing or rearrangement of a movie, but you make it trivially programmable, such that it’s easy for anyone to create remixes of any movie or combination of movies they like and save the programs (not the fixed copies) as text files to be shared on Kazaa, etc..

    Of course, this device is supplied with programs for a few well known movies like Pulp Fiction, where those programs make extremely limited excisions (cut out all the swearing bits). It’s not the manufacturer’s fault if nefarious users use the device to create Lord of the Rings 1+2+3+’deleted scenes re-inserted’ cuts.