Family Entertainment and Copyright Act Passes
As many have reported, the Family Entertainment and Copyright Act of 2005 (S.167/H.R. 357), recently passed the House, which also issued a committee report about the bill. Since the identical language had already passed the Senate in February, the measure now goes to President Bush for signature.
There has been some alarmist reporting about the bill. While it's decidedly a mixed bag, I think the bill should be marked as more victory than a defeat for the public interest side in the copyfight.
There are three main parts of the new law. First, it makes camcording in movie theaters a federal crime. Of course, camcording is already a copyright infringement in virtually any circumstance the movie studios should care about, and thus is already punishable as a federal crime. Verdict: unnecessary and redundant.
Second, it modifies the criminal provisions of the Copyright Act to impose liability on those who distribute a "prerelease" work (for everything other than movies, prerelease means what you think it does; for movies, it means anything before the DVD release). Does this mean you can now be hauled off to jail for sharing a single movie on BitTorrent? Unfortunately, yes. But there are a few points to keep in mind: thanks to the NET Act, existing law already makes it a criminal offense to reproduce or distribute copies totaling more than $1,000 in retail value, which probably already reached many of the movie filesharers the feds are after; the new law only applies to material not yet released on DVD; and federal authorities have thus far shown no eagerness for throwing the book at people sharing one movie on BitTorrent. So while this is certainly a step in the wrong direction (of particular concern is the leverage it will give federal law enforcement folks over anyone caught sharing a prerelease work), panic seems premature. (UPDATE: for more on this, see Eric Goldman's comments.)
Third, the new law creates an exception in the Copyright Act meant to permit companies like ClearPlay to make DVD players and related technologies that are able to automatically skip and mute portions of DVDs. In ClearPlay's case, these technologies are intended to enable users to avoid coarse language, nudity, and violence, though the law would also permit other approaches (how about a "Jar-Jar free" version of Star Wars: Episode 1, ClearPlay?). This change is definitely a step in the right direction, as it empowers innovators to deliver technologies that let you control how the movies you own or rent are presented in your living room. After all, if you had the money, you could hire a butler to do this kind of thing for you. The trouble with the new law is that it is very narrowly crafted, so is unlikely to answer some of the more far-reaching and important questions raised in the lawsuit against ClearPlay, which will now likely be dismissed thanks to the legislative fix.
The real silver lining here emerges when you consider where the entertainment industry started back in 2003, and where they've ended up in 2005. After two years of heavy investments in lobbying Congress for a host of outrageous changes to copyright laws (like the Induce Act), the entertainment moguls managed to enact only a tiny sliver of their agenda, and only by granting concessions to ClearPlay.
Thanks to all the copyfighters in DC like Public Knowledge, the library associations, the CEA, CDT, and others who have been holding the line. And thanks to the tens of thousands of EFF members and citizens who have been writing members of Congress about these issues.