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IRIS 2005-6:19/38

United States

Family Entertainment and Copyright Act of 2005

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Mark Schultz

Southern Illinois University School of Law

On 27 April 2005, President George W. Bush signed into law theFamily Entertainment and Copyright Act of 2005, P.L. 109-9 (“FECA”). FECA has two major parts. The first part, known as the “Artists Rights and Theft Prevention Act” (“ART Act”), criminalizes certain types of piracy that undermine the impact of the initial commercial release of works of entertainment. The second part, known as the “Family Movie Act of 2005,” exempts from infringement third party technology that filters objectionable material from movies played at home. FECA also includes various provisions related to film preservation and orphan works (i.e., copyrighted works whose owners are difficult or even impossible to locate).

The ART Act creates two new Federal criminal copyright offenses. The first is intended to deter “camcorder piracy,” where pirates record a newly released movie while it is being played in a movie theater. This type of recording is one of the primary means used by commercial movie pirates to create “bootleg” versions of movies. Under the ART Act, anyone who “knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work” from a performance in “a motion picture facility” can be punished with up to three years in prison for a first offense or six years for a later offense.

The second part of the ART Act addresses a form of infringement even more irksome to the entertainment industry than “camcorder piracy”—pre-release piracy. This phenomenon recently became notorious when a pre-release print of the latest installment of Star Wars showed up on filesharing networks the same day it premiered in movie theaters. There is speculation that it was leaked by an industry insider. Under the ART Act, it is now a criminal copyright offense to distribute “a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public.” Penalties include imprisonment from up to three years (first offense) to ten years (for subsequent offenses). Although the Act seems to address filesharing, some have noted that proponents of the bill were focused on deterring industry insiders from leaking pre-release works. There is some doubt as to whether the ART Act will have a significant impact on either filesharers or industry “leakers.” Many filesharers were probably already covered by criminal copyright laws. Moreover, many are uncertain whether the Act covers an insider who leaks a copy but is not the one to place it on a filesharing network.

The other major part of FECA, the Family Movie Act of 2005 (“FMA”), has a rather different aim, as it shields a class of (arguable) infringers from liability. The FMA protects new technology, most notably a service from Clearplay, Inc., that causes DVD players to skip movie scenes containing sex or violence or to mute objectionable dialogue. The movie industry has objected to Clearplay's service as unauthorized editing, and the Director's Guild of America has sued Clearplay for infringement. The suit is expected to be dismissed now that the FMA is law.

References
Family Entertainment and Copyright Act (P.L. 109-9) signed 27 April 2005 EN
 http://merlin.obs.coe.int/redirect.php?id=9671