By Joshua Deutsch

On February 1, 2005, the Senate unanimously passed the Family Entertainment and Copyright Act (FECA).#160 The Act is being hailed as bipartisan, significant anti-piracy legislation and a reaffirmation of congressional intent to protect copyrighted material from new technological means of theft and infringement.#160 FECA has been referred to the House of Representatives and is awaiting further action there.

FECA is comprised of four independent bills introduced as a package.#160 The most notable provisions are found within the Artists’ Rights and Theft Prevention (ART) Act.#160 In particular, the ART Act aims at curbing Internet piracy by increasing the criminal penalties for the illegal distribution of copyrighted works before they are released.#160 It also establishes civil remedies by which copyright owners may be compensated for their losses in such a situation.

In addition, the ART Act makes it a federal crime to record a film as it is shown in a theater, with a penalty of up to 3 years in prison for the first offense or up to 6 years for a second offense.#160 Furthermore, theater owners or their agents, with reasonable cause for doing so, may detain, “in a reasonable manner and for a reasonable time,” suspected violators of the Act “for the purpose of questioning or summoning a law enforcement officer.”

Representatives from online peer-to-peer companies, collectively acting as P2P United, find the bill to be suspect.#160 Adam Eisgrau, executive director of P2P United, stated that “this package seems to be another point on a very distressingly long line of actions that ratchet up enforcements and penalties at times out of proportion with the law.#160 To camcord a movie is wrong, certainly, but the penalty (of three years in jail) and the entitlement of theater ushers and owners to physically detain people makes you have to ask whether the copyright industry is having more sway than it should over the legislative process.”#160 William Triplett, “Piracy Bills Pass Muster,” Daily Variety (Feb. 2, 2005).

FECA also includes the Family Movie Act.#160 The controversial Family Movie Act is aimed at permitting the use of technology to skip or mute content that may be objectionable to certain viewers when watching a DVD movie at home.#160 Opponents of the Act contend that it permits copyright infringement.#160 However, the Act makes clear that the technology can be used so long as no fixed copy of the edited work is made.#160 Motion picture studios further object to the Act because the technology could be used to skip over commercials inserted on DVD movies.#160 The current version of the Act does not ban use of the technology for the commercial-skipping purpose but it has been suggested that it should not be used for that purpose.

The Family Movie Act is a congressional attempt to address a lawsuit for copyright infringement filed by the seven major studios, sixteen prominent directors, and the DGA against ClearPlay, Inc., one of several companies manufacturing and selling software and services that remove language and scenes from DVDs.#160 ClearPlay contends that its technology is equivalent to a fast forward or mute button, and does not constitute copyright infringement because it never alters the actual DVD or create a fixed version of the alternate movie-watching experience.

The Family Movie Act is part of the current administration’s indecency crusade.#160 On February 17, 2005, the House of Representatives overwhelmingly passed legislation substantially increasing the penalties for broadcast indecency.#160 The Broadcast Indecency Enforcement Act of 2005 raises the maximum fine from $32,500 to $500,000 per incident, and makes artists personally liable beginning with a first offense (currently, the Federal Communications Commission is limited to issuing only a warning for a first offense).#160 The Act also permits the revocation of broadcasting licenses from repeat offenders.#160 The Senate is currently considering its own version of the bill.

The White House, believing that there is a shared view of public morality, stated that “[t]his legislation will make broadcast television and radio more suitable for family viewing by giving the FCC the authority to impose stiffer penalties on broadcasters that air obscene or indecent material over the public airwaves.”#160 Critics of the Act argue that the government’s standard for indecency is ambiguous and that the bill will indiscriminately threaten a variety of programming.

At the same time that Congress is offering additional protections for copyrighted works in response to new technologies, it is weakening traditional copyright and First Amended protections by permitting the alteration of those works and limiting the ability of the public to enjoy them via public broadcasts.#160 This current round of lawmaking evidences the problems inherent in morality-based copyright legislation.

Joshua I. Deutsch is an attorney with Weintraub Genshlea Chediak Tobin & Tobin Sproul in Sacramento, California.#160 His practice#160 focuses on entertainment and intellectual property matters.#160 Mr. Deutsch can be contacted via telephone at (916) 558-6077 or by electronic mail at