Washington, D.C. - This hearing certainly delves into a number of interesting issues about artistic freedom, the definition of copyright-infringing derivative works, and the extent to which the unfair competition provisions of the Lanham Act protect the moral rights of creators.

 

However, I’m not sure any of these issues are ripe for a congressional hearing.  The movie studios, directors, and ClearPlay are actively engaged in licensing negotiations to resolve their dispute.  As I understand it, those negotiations had been close to a mutually acceptable conclusion.  The public posturing and adversarial nature inherent in congressional hearings is bound to set back these negotiations, and thus thwart the stated purpose of this hearing.

 

Furthermore, the problem on which this hearing focuses is hypothetical at best.  A District Court case addressing these very issues has not yet proceeded past the most preliminary stages.  It seems a waste of time to discuss statutory amendments before any court has interpreted the law in an allegedly undesirable way.

 

But despite my misgivings, we are here.  So, I might as well use my time to clearly state my opposition to the hypothetical legislation that may be forthcoming to address the hypothetical problem before us.  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.  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.

 

Such legislation presents an almost endless variety of complications and conundrums.   

 

Would legislation attempt to define the types of “offensive” content that could be altered or deleted?  If such definitions include violence, sexual material, and profanity, the legislation will almost certainly violate the First Amendment.  And First Amendment concerns aside, attempts to define offensive content will backfire.  Legislation that allows deletion of violent scenes from The Last Samurai would also allow The Passion of The Christ to be stripped of its graphic violence.  Do those who find the violence in The Passion so integral to the story think a sanitized version would do the story justice?

 

Of course, First Amendment concerns could be skirted by granting a content-neutral right to edit content, but that will just create further problems.  For every case in which ClearPlay sanitizes the kitty litter humor in “The Cat in the Hat”, another company will strip The Passion of offensive depictions of Jews.  Personally, I might not mind the outcome.  Someone else might prefer it if scenes depicting interracial physical contact were cut from Look Who’s Coming to Dinner or Jungle Fever.  But I don’t think this is what America is about.  Innovation, growth, and progress occur through exposure to an unbridled marketplace of ideas, not by ensuring that everything you see, read, and experience fits within your pre-conceived world views.    

 

Would legislation distinguish between fictional and non-fictional works?  I don’t see how.  For instance, is The Passion of The Christ fictional or historical?  What about  “The Reagans” mini-series?  And who would be the arbiter?  The Anti-Defamation League in the case of The Passion?  The Reagan family in the case of The Reagans?  But if the legislation does not make a fiction/non-fiction distinction,  it is an invitation to rewrite history.  For instance, World War II documentaries could be stripped of concentration camp footage.  Fahrenheit 911 could be stripped of scenes linking the Houses of Bush and Fahd.

 

And on what principled basis would such legislation apply only to motion pictures?  If it is really meant to empower consumers to customize their lawfully purchased copyrighted works,  then it would apply to all copyrighted works.  It would legalize the unauthorized software plug-ins that enable you to play the Tomb Raider computer game with a topless Lara Croft, and to put the faces of teachers and classmates on the heads of target monsters in certain “shooter” computer games.  Would the legislation make it legal for someone with digital editing software to doctor a 30 year-old photograph of a Vietnam War rally so that it appears that John Kerry is standing next to Jane Fonda? 

 

Would the legislation only apply to digital works?  If so, what nonsense.  It means that someone could sell an e-book reader that prevents reading the murder scene in an ebook version of Dostoevsky’s Crime and Punishment, but can’t sell the hard-copy book with the offending pages ripped out.  Why would legislation protect technology that skips the violent scenes in a DVD version of Platoon, but not protect a service that cuts the same scenes from the VHS version?  If both activities are copyright infringement today, why would legislation only immunize the digital infringement?

 

As a parent, I am concerned about what my children see and hear in our cacophonous media society.  But I believe parenting is the parents’ job, not the government’s.  I wonder why vocal proponents of personal responsibility and limited government readily abandon those principles when presented with the opportunity to place the government in loco parentis.  If the government should stay out of our gun closets, shouldn’t it stay out of our bedrooms and living rooms?  If the government should let the marketplace develop solutions to environmental pollution, shouldn’t it also let the marketplace develop solutions to so-called cultural pollution? 

I yield back the balance of my time.