ClearPlay-Inspired Law Looms

Legislation to end the dispute between moviemakers and a company that makes a DVD player that edits movies for sexual content, foul language and violence could come in two weeks unless the parties mak

WASHINGTON (Hollywood Reporter)--Legislation to end the dispute between moviemakers and a company that makes a DVD player that edits movies for sexual content, foul language and violence could come in two weeks unless the parties make a deal, the chairmen of the House copyright subcommittee said last Thursday.

While Rep. Lamar Smith, R-Texas, said the two-week time frame is not a hard-and-fast deadline, it underscores his desire to have the dispute settled. "We hope the negotiations will proceed with a resolution that's acceptable," Smith said following a hearing on the dispute. "We won't hesitate to pursue that option if a settlement is not reached in the next few weeks."

Both Smith and Judiciary Committee chairman Rep. F. James Sensenbrenner Jr., R-Wis., are pushing the parties to reach a settlement or face legislative action. Smith declined to reveal what the legislation would say but said it could come in the form of a stand-alone bill or it could be attached to the Satellite Home Viewer Improvement Act extension.

"That's an option," said Smith, who receives weekly briefings on the negotiations among the DGA, the studios and Salt Lake City-based ClearPlay.

Portions of the SHVIA legislation that allow satellite TV companies to retransmit network TV signals expire this year. SHVIA is considered one of the few must-pass bills the Judiciary Committee is weighing this year. The debate over the proposed legislation split the copyright subcommittee largely on party lines, with Democrats voicing concern about the technology.

"I do not believe Congress should give companies the right to alter, distort and mutilate creative works or to sell otherwise-infringing products that do functionally the same thing," said Rep. Howard Berman, D-Calif. "I believe such legislation would be an affront to the artistic freedom of creators. It would violate fundamental principles of copyright and trademark law. And if drafted to avoid violating the First Amendment, it would almost surely defeat the apparent purposes of its drafters."

Berman, the subcommittee's senior Democrat, was joined by Michigan Rep. John Conyers, the full committee's top Democrat. As a way to make his point, Berman read ClearPlay CEO Bill Aho's statement to the committee but edited portions of it so that it read as if the company makes a technology that violates copyright law and brings objectionable programming into the home. Berman's "filtered" version turned Aho's remarks on their head.

"I don't think you like my editing," Berman said. "Can you understand why I might be concerned?"

But their views were not shared by the Republicans, who control the committee and the Congress. The GOP contends that the technology is simply another tool that helps parents.

"The issue isn't whether a movie loses some of its authenticity due to skipping of various audio and video but whether the rights of parents to shield their children from content they object to is secondary to anything else," Smith said. "I believe that the rights of parents to protect their children are paramount. And if they choose to designate a third party to help them accomplish this, so be it."

Aho told the committee that his company's product is a high-tech way that allows people to "cover their eyes" when content they object to is shown. The ClearPlay technology is built into a $79 DVD player from Thomson Inc.'s RCA brand and is available as a stand-alone program for computers.

"This is a choice many families desire," Aho said. "We believe that it is not in the best interest of society for the movie industry -- in an effort to extend its artistic control over the experience of viewers -- to take actions that would eliminate this choice from families."

The hearing was somewhat one-sided as the studios and the DGA declined invitations by the panel to testify. The DGA decided Wednesday to pass on the hearing, so its witness Taylor Hackford ("An Officer and a Gentleman," "When We Were Kings") did not speak to the committee. His prepared text was entered into the record, however.

MPAA president and CEO Jack Valenti and Nick Counter, president of the Alliance of Motion Picture & Television Producers, offered to testify but were turned down as the committee hoped for a high-ranking studio executive.

While Smith said he thinks the hearing and the threat of legislation will force the parties to make a deal faster, entertainment industry supporters think the opposite.

While the studios and the DGA have sued ClearPlay, Hollywood is in negotiations with the company on how to do business. Only the studios can sign a contract with the company, but the DGA's collective bargaining agreement with them gives directors some control over changes. Most films are already "cleaned up" at some point so they can be shown on airplanes and cable networks or broadcast over the air.

DGA and studio officials contend that legal changes like those contemplated by the two lawmakers change the nature of copyright law. In a letter to Smith in which Valenti and Counter offer to testify at the hearing, Valenti makes that point.

"Had Mr. Counter or I been invited to testify, we would have stated our position clearly and compactly," Valenti wrote. "We believe that no one should revise, edit, omit or otherwise change a motion picture without the permission of the copyright owner. We would have confirmed that the motion picture industry supports editing movies to make them appropriate for viewing by particular audiences, but we also strenuously believe that revisions/editing/omissions by third parties collides with the creative expression of those who made the movie and those who hold the copyright to that film."