FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005 IN RE CAM "CAPE FEAR AND COLD CREEK MANOR"

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House Report 109-33 - FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005
This new provision deals with the very specific problem of
illicit ``camcording'' of motion pictures in motion picture
exhibition facilities. Typically, an offender attends a pre-
opening ``screening'' or a first-weekend theatrical release,
and uses sophisticated digital equipment to record the movie. A
camcorded version is then sold to a local production factory or
to an overseas producer where it is converted into DVDs or
similar products and sold on the street for a few dollars per
copy. This misuse of camcorders is a significant factor in the
estimated $3.5 billion in annual losses the movie industry
suffers because of hard-goods piracy.
In addition, the bill makes clear that ``possession of an
audiovisual device in a motion picture exhibition facility may
be considered as evidence in any proceeding involving this
offense, but shall not, by itself, constitute sufficient
evidence to support a conviction of this offense.'' The
Committee recognizes that the fact that someone has brought an
audiovisual device may be critical evidence in a case against
that person under this section. For example, smuggling a high-
quality miniature camera and recording equipment into a movie
theater may be highly probative of the intent to camcord.
However, the Committee does not intend that the ``attempt''
language be used to convict, for example, a tourist who ends a
day of sightseeing by bringing his camcorder to a motion
picture theater but does not attempt to use it to record or
transmit a motion picture. This language is intended to guard
against such an injustice.
Further, the bill is not intended to permit a prosecution
of, for instance, a salesperson at a store who uses a camcorder
to record portions of a movie playing to demonstrate the
capabilities of a widescreen television. The offense is only
applicable to transmitting or copying a movie in a motion
picture exhibition facility, which has to be a movie theater or
similar venue ``that is being used primarily for the exhibition
of a copyrighted motion picture.'' In the example of the
salesperson, the store is being used primarily to sell
electronic equipment, not to exhibit motion pictures. (For the
same reason, the statute would not cover a university student
who records a short segment of a film being shown in film
class, as the venue is being used primarily as a classroom, and
not as a motion picture exhibition facility.)
Moreover, Sec. 102 is not intended to permit prosecution of
individuals making camcorded copies of movies off their
television screens. The definition of a motion picture
exhibition facility includes the concept that the exhibition
must be ``open to the public or is made to an assembled group
of viewers outside of a normal circle of a family and its
social acquaintances.'' This definition makes clear that
someone recording from a television in his home does not meet
that definition.
It is important to emphasize that the clause ``open to the
public'' applies specifically to the exhibition, not to the
facility. An exhibition in a place open to the public that is
itself not made to the public is not the subject of this bill.
Thus, for example, a university film lab may be ``open to the
public.'' However, a student who is watching a film in that lab
for his or her own study or research would not be engaging in
an exhibition that is ``open to the public.'' Thus, if that
student copied an excerpt from such an exhibition, he or she
would not be subject to liability under this Section.
The Committee will oversee the Justice Department to ensure
that it exercises appropriate prosecutorial discretion when
enforcing Sec. 102 of S. 167. While ``fair use'' is not a
defense against a Sec. 2319(B) violation, Federal prosecutors
should use their discretion not to bring criminal prosecutions
against activities within movie theaters that would constitute
fair use under the copyright laws. Additionally, prosecutors
should consider whether a potential defendant was on notice
that camcording violated the law. The Committee appreciates the
commitment by the National Association of Theatre Owners (NATO)
and MPAA to make available to every motion picture theater in
the United States a conspicuous sign informing patrons that
camcording in the theater is punishable by a Federal criminal
penalty. The Committee fully expects that NATO and the MPAA
will abide by that commitment. The posting of such a warning
will serve as an important factor to help authorities determine
whether a prosecution under this statute would be appropriate.
An immunity provision has been included for good faith
efforts by theater owners and other associated individuals to
detain in a reasonable manner those they suspected of
camcording. This provision and the reasonableness test should
be viewed as a companion to shopkeeper privilege statutes found
in all States. This section does not pre-empt any State laws.
Section 103 creates a criminal penalty for the willful
distribution of works being prepared for commercial
distribution. The Committee has been made aware of numerous
examples of efforts to camcord new movies during their opening
days of release followed immediately by either mass duplication
and distribution of DVD copies or Internet distribution of the
same movie. Although the harm to the distribution of physical
or Internet copies of works when legal copies are available has
long been established, the Committee notes the larger harm
caused by those who distribute copies of works even before they
are legally available to the consumer. Moreover, the Committee
is aware of pre-release activity surrounding the creation and
duplication of physical advertising signs prior to their
initial installation. Finally, the Committee is aware of, and
encouraged by, Department of Justice investigations and
prosecutions of pre-release cases involving motion pictures,
sound recordings, business software, videogame software, and
book publications once the works have been released in final
form. Section 103 will ensure that there is a specific penalty
for such illegal pre-release activity.
Section 104 expressly requires the Register of Copyrights
to issue regulations to establish a preregistration system for
copyrighted works. Since works are generally not formally
copyrighted until they are in final form and ready for
distribution to the public, civil remedies for the distribution
of pre-release works are lacking. This section will give the
Register flexibility to determine which classes of works are
appropriate for preregistration. The Committee believes that a
class of work with only a few instances of infringement prior
to authorized commercial distribution do not meet the test of a
``history of infringement,'' but otherwise leaves the decision
to the discretion of the Register.
To encourage and ensure that preregistered works are
formally registered when they are ready for such a filing, the
new 17 U.S.C. Sec. 408(f)(4) created by Sec. 104 limits civil
suits in certain circumstances. By its express terms, the
prohibition on infringement suits contained in Sec. 408(f)(4)
does not apply to suits concerning infringements commencing
later than 2 months after first publication of a copyrighted
work that had been preregistered with the Copyright Office.
Therefore, notwithstanding a failure to meet the deadlines set
forth in Sec. 408(f)(4)(A) and (B), a copyright owner of a
preregistered work can register his or her work under current
law and bring infringement actions for infringements occurring
more than 2 months after first publication.
Further, a preregistration of a sound recording does not by
itself constitute preregistration of the musical works embodied
in the sound recording. Accordingly, a later infringement of a
musical work contained in a preregistered sound recording would
not be subject to the dismissal provision in Sec. 408(f)(4)
based on the preregistration of the sound recording.
Section 105 directs the United States Sentencing Commission
to review and update, if appropriate, the sentencing guidelines
and policy statements surrounding several intellectual property
rights crimes. The Commission has previously and successfully
updated the guidelines to account for changes in the manner of
intellectual property piracy. The Committee has included
Sec. 105 because of the unique harms and aspects related to the
infringement of pre-release works. The existing guidelines
allow for an increase in the base level offense in certain
circumstances.\2\ Although the guidelines highlight two reasons
for consideration of upward departures, the specific and
magnified harms caused by the display, performance,
publication, reproduction or distribution of a pre-release work
appear to warrant their inclusion as a third reason for upward
departure.
S$


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