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
Many of those who use blogs ("bloggers"), frequently comment and criticize the media. These comments are often valuable reviews of works. The insight of Blogcritics was that these valuable works of criticism and commentary could be hosted on a single site so that visitors could easily find and read them. The site has been very successful, attracting over one hundred contributors and tens of thousands of visitors.
Eric Olsen, the founder and administrator of Blogcritics, believes the addition of quotations from ancillary materials on DVD would make the site even more attractive and useful to visitors.
Already quotations from books and links to samples of music are available on Blogcritics. Quotations from DVDs would be an obvious addition, but Mr. Olsen would be exposing himself to criminal liability for circumventing CSS in order to create the noninfringing quotations.
Furthermore, many of the individual contributors to Blogcritics find that their commentary on DVDs is inhibited by ยง 1201(a)(1), and the value of their criticism is hampered as a result:
Phillip Winn, who has posted many reviews, including one regarding the recent Disney DVD release of Tarzan & Jane,53 complains that,
- Since the quality of DVD extras vary so much from release to release, DVD viewers have grown increasingly skeptical of the value of promised DVD extras. Being able to show short clips from some releases helps to demonstrate the value of some excellent release. Some recent examples include 'O Brother Where Art Thou' and 'Fight Club,' both of which had excellent behind-the-scenes documentaries, snippets of which would have greatly enhanced reviews of the discs.
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