Don Marti

Sun 17 Apr 2005 08:33:51 PM PDT

Congress Can Take the Profit Out of Selling Sex and Violence to Kids.

In a report issued on April 24, 2001, the Federal Trade Commission found that the entertainment industry is actively marketing R-rated movies, along with violent music and video games, to children. But FTC Chairman Robert Pitofsky said, "Because government intrusion in decisions about content raises important First Amendment concerns, self regulation continues to be the preferred solution to problems in this area."

Self-regulation? From the industry that brought us "American Psycho," "Cop Killer," and "Mortal Kombat"? I'll believe that when I see it. But conventional wisdom says it's impossible to regulate explicit sex and violence in the media, because regulation wouldn't hold up on First Amendment grounds.

Does that mean it's "self-regulation" or nothing? Of course not. Congress has a legal, effective tool it can use to cut back big-budget sexual exploitation and violence in the media. It's called copyright law. All Congress has to do is reduce the copyright term on sexual or violent movies, music, and video games to one or two years.

Reducing the term of copyright on porn is not a "taking".

Some call copyright an "intellectual property" right and insist that reducing the length of a copyright would be an unjustified "taking" from the copyright holder. This point of view has no basis in Constitutional law, and in fact simply puts corporate interests ahead of the purposes for which the Founders wrote copyright into the Constitution in the first place. Copyright is granted for a limited time only, unlike a property right, and exists "to promote the progress of science and useful arts." (Article 1, Section 8) The term "intellectual property" does not appear in the Constitution, and nowhere does the Constitution identify a copyright as a property right.

Porn and media violence do not promote the progress of anything. They do precisely the opposite. And Congress is not required to give them the same subsidy as wholesome content. The Constitution doesn't specify how long a copyright must last, and the First Amendment only protects an individual's right to free speech, not a copyright holder's exclusive right to distribute it. With a shorter copyright term on harmful materials, the financial incentive for the media corporations to invest in explicit sex and violence will be low enough to make it easier for them to do the right thing.

Take the profit out of porn

But wouldn't reducing the copyright term for harmful materials just result in more low-priced copies being available at stores, or copies being freely downloadable on the Internet? Not if copyright term reduction only applies to new content, to give the media corporations time to redirect their investments.

How would copyright term reduction for harmful works change America's entertainment market? Certainly some sexual and violent movies made cheaply or abroad would play in urban areas and college towns. And people would continue to make amateur and low-budget pornography.

But without the prospect of years of video and television sales, entertainment executives would be reluctant to put Hollywood's biggest budgets into sex and violence. And, perhaps most importantly, the entertainment industry's promotion machine would take up the task of promoting wholesome content, for which the copyright holders could keep exclusive rights for a longer period.

According to the Hollywood Reporter, Motion Picture Association president Jack Valenti said, in response to the FTC report, "It's not easy being a First Amendment advocate." Cutting back copyrights on sexual and violent media will take the money out of messing with kids' heads, and make his job a little easier.