As we mentioned this morning, Blogcritics is involved with requests for exemptions from the DMCA with both Lawmeme and the EFF.

Lawmeme's Ernest Miller has turned in what I think is an extraordinary and highly logical request for an exemption from the DMCA prohibition on copying DVDs for any purpose, including fair use recording of small segments of a DVD for review purposes. Seeing that DVDs often contain material exclusive to the DVD - interviews, behind the scenes, background on the subject, outtakes, etc. - the fact that we can't legally host clips of these DVD-exclusive segments in conjunction with reviews is a grievous disservice to our readers and to the site.

Miller puts it better in the exemption request, quoted in a post on Lawmeme by Raul Ruiz here:

"LawMeme therefore submits that in balancing the harms of inhibiting the core First Amendment values of comment and criticism by individuals in lawful possession of DVDs with the nonexistent harms to copyright holder motion picture studios, an exemption is justified in the case of ancillary audiovisual works distributed on Digital Versatile Discs (DVDs) using the Content Scrambling System (CSS) of access control. Alternatively, LawMeme submits that CSS is not an access control device and thus not subject to this rulemaking."

For example, Eric Olsen's BlogCritics website (www.blogcritics.org) is a forum for independent reviewers to provide reviews of books, CDs and DVDs. The site is financed through ad revenues and associate's programs.38 If Eric Olsen were to circumvent CSS in order to add short clips to his reviews of ancillary materials on DVDs, his actions would make the website more attractive, increasing traffic (and therefore ad revenues) as well as likely increasing the number of sales through the site's associate programs. Such actions would therefore subject Mr. Olsen to potential criminal liability.

Furthermore, the civil penalties are extraordinarily severe as well. Under 17 U.S.C. § 1204, violating the prohibition on circumvention of CSS results in a minimum fine of $200. That is for doing nothing more than excerpting a clip from a lawfully acquired DVD for purposes of comment and criticism. Fifteen seconds of fair use can cost a minimum of $200. For many, such an amount is significant enough to dissuade them from exercising their First Amendment rights.

Therefore, in this rulemaking, the Librarian's determination of the need for an exemption should take into account the chilling effects of the DMCA's severe criminal and civil penalties. "The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere."39

....5. The case of Blogcritics

As noted above, Blogcritics is a website where independent reviewers can submit reviews on books, music and movies. The website has capitalized on the weblog or "blog" phenomena which has done much to realize the potential for independent self-publication the Internet promises and the Supreme Court recognized in Reno v. ACLU. Through blogs, individuals with nothing more than access to the Internet can effortlessly publish daily journals of their thoughts, comments and links to materials they find interesting. The simplicity and ease of publication through blogs has created a rising tide of free expression that even the major media recognizes and responds to.52

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