The Family Entertainment and Copyright Act (FECA) is an ineffective and redundant law that fails to have an impact towards the fight against piracy.
Copyright was intended to accord makers of original work exclusive rights over the use and distribution of their work. In the United States, the copyright extends even after the death of its creator. Copyright law should therefore be an incentive to innovators because it rewarded them for their innovations with exclusive rights, such as charges and use of their work.
Senator Orrin Hatch introduced the Family Entertainment and Copyright Act to the Senate in United States on 25th January 2005. It was signed into law on 27th April 2005. The FECA consists of two main parts, the Artists Rights and Theft Prevention Act and the second part is the Family Movie Act (Donaldson, 2010).
Definition of the law and lintels
Artists Rights and Theft Prevention Act
The Act makes it a criminal offence to engage in some forms of piracy, which have the effect of undercutting the primary impact of works of entertainment that have been released for profit. This part of the Act generates two federal copyright offices, the first offence is projected to discourage camcorder piracy; an act of recording newly released movies during their maiden play in movie theatres and later the recordings are reproduced as different versions of the movies. The punishment for knowingly recording such movies is three years imprisonment for first offenders and subsequent offenders face six-year jail term.
The second offence created is pre released piracy also identified as camcorder piracy, as was evident when the print format of Star Wars was availed on sharing networks, allegedly released by an industry insider on a similar day as it was premiered. Distribution of work through computer networks to members of the public under preparation for business related distribution is an offence punishable by an imprisonment term of three years for first offenders and ten years for succeeding offenders.
The Family Movie Act, 2005
This part of the Act removes liability from technologies by third parties that primarily remove objectionable content from played at home movies. The act prohibits the creation of a new hard copy of a movie even if the clip will include some censored parts. The technology used also illegalizes insertion of audio or video content on an original work.
Influential court cases
Lennon v. Premise Media Corp
EMI Group and Yoko Ono sued a filmmaker of documentaries for the use of a clip extracted from the song ‘Imagine’ by John Lennon. The clip ran for fifteen minutes and was used as a critique of the lyrics. The issue in contention was whether the film ‘Expelled: No Intelligence Allowed’ looked at components of freedom of speech, science and faith by implying that the message of nonexistence of religion in a society had the possibility of dire consequences socially. Producers of the film were sued in both federal and state courts. It was held that the use of the song, though copyrighted amounted to fair use.
Elektra Entertainment Group v. Santangelo and Capitol Records Inc. v. Thomas
In the year 2005, the RIAA filed a suit for copyright infringement against Patti Santangelo. The basis of the case was evidence collected by Media Sentry consisting of screenshots, shared folder and an IP address used at the time of the infringement of the copyright. It turned out that her teenage son and daughter were implicated and a subsequent suit was filed against them. The question before the court was whether the act of ‘making available’ constituted a copyright infringement as the files could later be accessed and downloaded by other people.
The court was conflicted on whether there was an existing right of making available, however, the judge ordered a new trial after his finding that such a right was nonexistent in America. The right is however available internationally and the National Music Publishers Association supported the existence of that right.
Cartoon Network LP v. CSC Holdings, Inc. and Cablevision Systems Corp., reversing Twentieth Century Fox v. Cablevision Systems Corp
To reduce costs of technology deployment, Cablevision recorded videos on isolated resources and purchased storage for the least price. In order to prevent copyright infringement, copies of the videos were aired through buffers for less than two seconds. The company was sued for direct infringement of copyright. The court held that the 1.2 seconds of infringement were transitory, and hence too short to constitute actual copyright infringement.
Io Group Inc. v. Veoh Networks, Inc., and UMG Recordings, Inc v. Veoh Networks Inc
Veoh, a network that allowed users to share videos, Universal Music Group promoted artistes and Io group specialized on pornography. Users consistently uploaded content created by Universal group, which were taken down upon issuance of a notice, but the same videos would later resurface on the Veoh and a notice had to be issued afresh. A suit against Veoh was filed and the court ruled that hosting immunity put forward by Veoh such as termination of user accounts that uploaded pornographic content absolved them from any infringement as per the Digital Millennium Copyright Act
Redundancy with other Copyright laws.
As put forward by Hilmes (2011) the laws joined a large number of previously enacted laws, numbering more than fifteen that had since expanded over a period of years. The redundancy was often raised after questions of widespread infringement were brought out which purportedly envisioned the destruction of the industry. Similarly, the laws were merely created out of moral panic twisted by players in the industry; use those panics as a reason for absolute necessity for more redundant laws.
FECA made it an offence to produce and distribute a movie prior to its pre release. It illegalized recording of commercial movies during their premiere in theatres and releasing movies in print format as was the case in Star Wars. The act does not venture into other aspects of release, such as post release illegal distribution (Hilmes, 2011).
Federal Authorities aren’t as eager to prosecute
The Act came up with new criminal sanctions for the use of devices such as camcorders to record and copy movies while being watched in movie theatres. The Act further created penalties that involve disclosure of work that has not been officially released. The authorities on the other hand are slow to prosecute such cases even as section 167 of the Act provided additional useful elements that may be used to secure a conviction based on some infringements. The elements of the offence were not clear cut as the act of carrying a recording device into the theatre was not an offence.
While the No Electronic Theft Act (NET) criminalized the act of reproduction and distribution of copies of movies, FECA on the other hand was only applicable to pre released DVDs. The application of both pieces of legislation filled any loopholes previously existing in the law relating to copyright and resulted in a more compact protection of copyright by statutes.
FECA specifically gave protection to new technology, such as Clear play Inc; that offered services that caused DVD players to pass over sexually explicit or violent scenes or to automatically mute offensive content. With passage of the bill into law, similar suits that had been filed by the movie industry and termed services by Clear play as unauthorized editing were dismissed (Jeremiah Films, Inc., 2012).
- Proposed changes
Creating a balanced copyright restriction model
A balanced copyright restriction model will publicly unify the common global ideology that knowledge and intellectual property ought to be considered as private property with the ability to trade in a typical capitalist market. The owners of such copyrights will get exclusive rights over their property, and the fair use principle will incorporate equality to the owners as well. In the long run, the advancement of very strict copyright regimes will ensure that there is an incentive to maintain creativity, a benefit to not only the United States, but the entire world.
Copyright Reform Act
The Act was legislation with proposed changes to copyright law that will favour the constitutional authorization that the protection of copyright is a tool towards the progression of science and useful art. It will also increase public knowledge, a useful feature of a balanced copyright system.
According to Katsh (2013) copyright was intended to accord makers of original work exclusive rights over the use and distribution of the work, in the United States, the copyright extends even after the death of its creator. Copyright law should therefore facilitate the role of an incentive to innovators because it rewarded them for their innovations with exclusive rights, such as charges and use of their work.
FACA that was enacted in 2005 joined a list of other redundant laws on copyright because its prohibition of piracy has not been fully achieved up to date. It criminalized copying and otherwise distribution of movies, however, owing to the slow rate of implementation, the piece of legislation, just like the previous ones like Digital Millennium Copyright Act of 1998 and subsequent Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008 are yet to realize their full mandate even as more laws get enacted.
Donaldson, M. C. (2010). Clearance & copyright: Everything the independent filmmaker needs to know. Los Angeles: Silman-James Press.
Hilmes, M. (2011). Only connect: A cultural history of broadcasting in the United States. Boston, MA: Wadsworth Cengage Learning.
Jeremiah Films, Inc. (2012). Death by entertainment. Hemet, CA: Jeremiah Films.
Katsh, M. E. (2013). Taking sides. New York, NY: McGraw-Hill.
United States. (2010). Family Entertainment and Copyright Act of 2005. Washington, D.C: U.S. G.P.O.