December 20, 2002
LawMeme's Ernest Miller Submits Comment on Digital Millennium Copyright Act
Ernest Miller, a fellow of the Information Society Project at YLS and the editor-in-chief of LawMeme, has submitted a comment to the librarian of Congress advocating an exemption from provisions of the Digital Millennium Copyright Act for the technology that is used to encrypt DVD movies.
Miller argues that sections of the DMCA that make it illegal to circumvent the encryption technology used in DVDs harm consumers by "inhibiting the core First Amendment values of comment and criticism."
Miller first wrote an article about this issue in September on LawMeme (read it here). He had noticed that a column on the web magazine Slate used short clips in its reviews of the DVD releases of movies. However, he hadn't seen similar clips on amateur review sites. "The reason," Miller explains, "is because, under current law, at least in the second circuit where there's been a decision, it's illegal to circumvent the encryption on a DVD, even for non-infringing purposes."
This interpretation leads to the following absurd formulation: "It's legal to publish the clip--that's obviously a fair use and obviously something that the first amendment protects. However, it's illegal to make the clip--to excerpt the clip."
Miller posted a film clip from the DVD of Men in Black with his article to illustrate his point. In it a character played by Tommy Lee Jones explains how the secret agency he works for funds its operations. "We own the patents on a few gadgets that we confiscated from out of state visitors, uh, Velcro, microwave ovens, liposuction. This is a fascinating little gadget." He picks up a tiny disc. "It's gonna replace CDs soon. Guess I'll have to buy the White Album again."
After writing the article, Miller decided to do more than just analyze the problem. The DMCA has a provision allowing for exceptions from its limitation on circumvention if an encryption scheme is causing harm to legitimate uses of copyrighted material, such as quotes in reviews, educational uses, or archiving. The librarian of Congress reviews the case for such exemptions every three years, and the deadline to submit comments for the next round of reviews was this week. "Why simply write an article describing the problem, when we can describe the problem to the library of congress and get an exemption?" Miller asked. (Read his comment through LawMeme.)
The LawMeme comment, in many ways, defends a traditional activity transferred into a new technological domain. The fair use of copyrighted material in criticism is enshrined in Supreme Court precedent, as well as statute. But the DMCA makes these otherwise legitimate uses illegal by preventing any circumvention of the DVD encryption system. Miller likens blocking movie clips from online reviews in this way to writing book reviews without being able to quote a sentence from the book.
Furthermore, Miller points out that some of the materials on DVDs are particularly valuable to criticism. DVDs often contain extra features, such as director's commentaries, alternate scenes, and behind-the-scenes footage. "These are particularly important for comment and criticism," says Miller, "because they help you get into how the decision-making occurred in the movie. . . . For the purposes of comment and criticism--of getting at the heart of what the film is about--these extras are very important." Many of these features are not available in any other format.
The DMCA also carries severe potential punishments--from a minimum civil fine of $200 to criminal sanction of five years in jail and a $500,000 fine. Miller points out, "This clearly is going to have a chilling effect on people willing to exercise their free speech rights."
Now that Miller's comment has been submitted, he has to wait for a judgment. Since the DMCA was passed in 1999, this is only the second period of rule-making, and so there are no established routines. The first round of comments will be made public, and then reply comments are due by February 19, 2003. Miller anticipates a critical response to his submission by the Motion Picture Association of America, and he may submit a reply himself.
Meanwhile, he and other people at LawMeme are drafting a reply comment on a separate issue for the Federal Communications Commission. He says that this increasing advocacy is consistent with the mission of LawMeme. "We're not simply telling people that there's news out there, but we're giving our own analysis and commentary on the news. It seems foolish not to step up to the plate and become engaged in these debates."
Miller has noticed a possible effect from his first article about DVDs and Slate magazine. He sent a copy to Slate, and Slate has since stopped publishing the DVD Extras column. "Maybe they realized it was illegal," Miller speculates.
Whether or not these two facts are related, this outcome is the opposite of Miller's goal. He wants to enable everyone to take advantage of the fair use of material on DVDs, not prevent large publications from doing it. Perhaps the librarian of Congress will soon affirm this position.