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.”
Um, what he said. Here is the section from the actual exemption request to which Blogcritics contributed (numbers refer to footnotes):
- For example, Eric Olsen’s BlogCritics website (wp.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
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 § 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.
However, given the DMCA, even short clips that I would previously considered “fair use” are now off-limits. I cannot use them, and readers will not know about them. I can describe them, of course, but much like describing color to a blind person, it’s difficult to express in print how good some of these interviews and documentaries are.54
Ed Driscoll, a writer whose work has appeared in such magazines as Audio/Video Interiors, Electronic House, Home Automation, and Smart TV and Sound, has published a number of reviews on Blogcritics. He has noted 55 some of his reviews that would have been improved had he been legally permitted to circumvent CSS in order to quote from the works. Below are quotations from two of his reviews that show where passages that would be enhanced by a quotation from the DVD:
- Law & Order Arrives on DVD:
“Everybody’s Favorite Bagman”, Law & Order’s pilot episode (and included on this DVD), was shot on 16mm, for a deliberately crude, grainy and streetwise look. As Wolf explains on the DVD’s documentary, when it came time to run the pilot on national TV, executives at NBC thought its image quality was below their standards, and it took a direct OK from Brandon Tartikoff for it to air.56
The Message is the Medium: Koyaanisqatsi and Powaqqatsi come to DVD:
The Koyaanisqatsi DVD comes with a fairly comprehensive video interview of Reggio and his soundtrack composer, Philip Glass. At one point, Reggio refers to technology as “the beast”, and an oppressive one at that. And yet, Reggio, his cinematographer, the brilliant Ron Fricke and Glass each push technology to the limit while simultaneously attacking it. At one point in Koyaanisqatsi, during a rapidly speeded-up night cityscape, the camera pans, in a perfectly fluid motion past a huge Miesian office building and thousands of cars whirring past underneath. Think of the technology involved in that camera movement: Selecting a camera designed to shoot a frame or two a second to get that speeded-up look. And loading it with the right film stock to shoot at night, the right filter on the lens to shoot in nothing but city lights, the right motorized head to allow the camera to pan at an ultra-low speed, etc. And then have the lab properly develop the film and time the prints, etc. And then add Glass’s music, largely performed on synthesizers in a recording studio.57
Lester Norton, who writes under the pseudonym Solonor Rasreth on Blogcritics, wanted to excerpt quotations from the interviews with the soldiers who fought in WWII in the HBO DVD release Band of Brothers:
- The interview segments with the soldiers from the ‘Band of Brothers’ DVD are essential to putting into context the struggles depicted in the film series from HBO. It is a shame that the law prevents us from legally giving our readers an example of these interviews, which are only available on the DVD.58
Michael Croft, another Blogcritics contributor, finds that literature and professional film reviewers are privileged in their ability to be able to quote from audiovisual works in their reviews:
- The DVD special edition of the film Mansfield Park contains interviews with the stars and the director that provide information about how they blended elements from Jane Austen’s life into her controversial book. Some of those anecdotes, which could be used to show how key themes were emphasized in the film, are only available on the DVD. That we cannot legally provide a multi-media sample of this material hurts our ability to provide the most clear and insightful reviews. It’s as if Siskel and Ebert weren’t allowed to show clips or the New York Times Review of Books were not allowed to directly quote from reviewed material.59
Jay Caruso, who contributed to the design of the Blogcritics website, believes that his ability to provide a full review of DVDs has been compromised, such as in his recent review of The Sum of All Fears DVD60:
- I recently reviewed ‘The Sum Of All Fears’ DVD release and touched upon some of the special features available on the disc. One of these features was the breakdown of the special effects created for the scene where the nuclear bomb was detonated. Allow[ing] viewers to see a segment of that special feature would allow them to experience part of it before they decided to make a purchase.
Unfortunately, as the law currently stands, our readers are being denied that opportunity … [t]hese extra features are only available on DVD and allowing them to see a portion could be the final nudge to get somebody to purchase it.61
Blogcritics contributor Travis Lee agrees with Mr. Caruso that consumers also suffer when reviewers cannot include quotations of ancillary material on DVDs:
- The specials and knick-knacks lurking around every [corner] of these [Lord of the Rings Special Edition DVDs] is enough to go out and buy yet ANOTHER version of this movie. It doesn’t stop. Putting samples of commentary as well as effects and other non-sense on this your lovely BlogCritics wouldn’t do the movie justice, but it’d sell about another million copies. However, I’m sparing Eric Olsen’s future as well as mine and abiding by the law.62
iv. Effect of circumvention of technological measures on the market for
or value of copyrighted works
As two of Blogcritics’ contributors pointed out, rather than harm the market or value of copyrighted works, an exemption for the prohibition on circumvention of CSS for ancillary works would likely increase the value of the underlying copyrighted works.
For the first time since the advent of movies, citizen-reviewers have the opportunity to engage at a deep level not only with film, but also the many ancillary elements previously unavailable. More important, they can share their insights and experience with others via the Internet. Consequently, film literacy is increasing and that too, can only be beneficial to the value of the underlying works. Rather than dismissing these elements because ancillary materials have not traditionally been available to the general public, we should be celebrating the fact that the volunteer commentators of Blogcritics have taken on this important task of increasing film literacy.
In any case, contrary to the initial determination, there is no harmful effect on the market for or value of copyrighted works…..
Carry on Ernest – one hell of a job young man. You make us sound noble. And special thanks and congrats to our Blogcritics who contributed so materially to the making of history, or something.
The Electronic Frontier Foundation also turned in an exemption request – here is a portion of their press release:
- The Electronic Frontier Foundation (EFF) today urged the Librarian of Congress (LoC) to recognize the rights of consumers to skip past commercials on DVDs, view DVDs sold only outside the U.S., and play copy-protected CDs on the players of their choice.
EFF has long sought exemptions from the Digital Millennium Copyright Act’s (DMCA) prohibition on bypassing technological protections used to limit consumer use of DVDs and copy-protected CDs.
Public-interest advocacy organization Public Knowledge joined EFF in filing the comments to the LoC.
EFF asked the LoC to create DMCA exemptions for four types of digital media:
1) music on copy-protected CDs
2) movies on DVDs whose region coding restrictions prevent playback on U.S. players
3) movies on DVDs which prevent skipping of commercials
4) movies in the public domain released on DVD
If granted, these exemptions will allow consumers to make full use of the music and movies that they’ve lawfully obtained.
The entertainment industry encodes DVDs by region sold in an attempt to control release and pricing of movies sold worldwide. Region 1 includes the United States.
“Many great films are available only outside the U.S.,” said EFF Staff Attorney Gwen Hinze. “We urge the LoC to allow film buffs to play movies they’ve legitimately purchased outside the U.S. without fear of breaking the law.”
The recent distribution of “copy-protected” CDs has made some CDs unplayable on PCs and DVD players. “The music industry intends to stop copying, but the copy-protected CDs they sell are completely unplayable in many PCs and newer disc players,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “When I buy a CD, I should at least be able to play it on my CD players.”
The LoC has called for comments as part of a triennial process of granting exemptions to the anti-circumvention provisions of the DMCA. Legislators charged the LoC and the U.S. Copyright Office with reviewing the effect of the anti-circumvention provisions on the public’s ability to make non-infringing uses of copyrighted works secured by digital protection technologies.
This rulemaking procedure allows the LoC and the Copyright Office to grant limited three-year exemptions to the DMCA’s blanket prohibition on bypassing technological protection measures. In that way, users could access particular classes of copyrighted works that are protected by digital protection mechanisms.
The actual request appears here.
Donna Wentworth of Corante lists the other commenters and links to their comments for this round of DMCA Rulemaking commenting, as it were.