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Features: Don't Try To Review This At Home
Posted by Ernest Miller on Monday, September 23 @ 00:42:40 EDT Digital Millennium Copyright Act
DVDs have become extremely popular very quickly - almost entirely eclipsing videotape as a format, see the New York Times (reg. req.) (Revolt in the Den: DVD Sends the VCR Packing to the Attic). One of the reasons for this surge in popularity is the "extras" that many DVDs contain. For example, many DVDs include commentary audio tracks, trailers, outtakes, behind-the-scenes material, and related archival footage. These extras provide a great deal of value to a DVD not available in other formats, including replay value. Frequently, these extras are the marginal value that convince consumers to purchase rather than rent a DVD, or determine which edition to buy.

Consequently, a number of sources now provide DVD reviews that focus on the relative merits of the extras. Sites such as:

Even Microsoft's Slate has gotten into the act with a new editorial department called, appropriately enough, DVD Extras. Slate even features something these other sites do not: clips from the reviewed movies (Singin' in the Rain: A bucket of extras; plus, Gene Kelly's voice cracks). Such clips are obviously useful to illustrate points made in the review. Digital technology makes it easy to edit and publish short videos on the web. Why then, is Slate the only website providing such clips?

One significant reason is a little law called the Digital Millennium Copyright Act, in particular, the anti-circumvention provisions (aka 17 USC 1201). LawMeme explains (and provides an example video clip featuring Will Smith):

There are two elements to the anti-circumvention provisions of the DMCA. Section 17 USC 1201(a) makes it illegal to circumvent or to traffic in technological measures designed to protect access to a copyrighted work. Section 17 USC 1201(b) makes it illegal to traffic in technological measures designed to protect a right of a copyright owner (i.e., copy protection). Note the difference between the two provisions. Both make it illegal to traffic in circumvention devices, but only one makes it illegal to use the device.

There is a very good reason for this, as seen in the legislative history of the DMCA which explains that Sections 1201(a)(2) and 1201(b) are "designed to protect two distinct rights and to target two distinct classes of devices. Subsection 1201(a)(2) is designed to protect access to a copyrighted work. Section 1021(b) is designed to protect the traditional rights of a copyright owner. ... The two sections are not interchangeable .... For example, if an effective technological protection measure does nothing to prevent access to the plain text of the work, but is designed to prevent that work from being copied, then a potential cause of action against the manufacturer of a device designed to circumvent the measure lies under subsection 1021(b), but not under 1201(a)(2). " S.Rep.No. 105-190 (1998).

The reason for the difference is that if you circumvent a technological protection measure to copy a work, the copy made is either legal or illegal under the existing provisions of the Copyright Act. There is no need for additional law. Gaining illicit access to a work in the first place, however, is not necessarily a violation of the Copyright Act, and thus the need for criminalizing the use of a device the circumvents access control (or at least, so the argument goes). This is where (regarding DVD clips) things get complicated.

According to the courts (and the MPAA, for obvious reasons), the Content Scrambling System (CSS), which is used to encrypt DVDs, is both a copy control and access control device and thus fits under the definition of both 1201(a) and 1201(b). You see, the courts have defined "access" to mean "use." If you use the DVD (i.e., watch it) you are "accessing" the data on the DVD. While this is true in the limited sense of the term access, it is not the meaning Congress intended. Congress meant access in the sense of a right to view the data. Thus, if you buy the DVD, or rent it (gaining legitimate access), you are free to watch the DVD however you want (as long as you do not violate any other provision of the Copyright Act). The way Hollywood and the courts have defined access, the difference between Sections 1201(a) and 1201(b) is meaningless.

The DMCA makes it illegal to traffic in devices which will help people exercise their rights of fair use. This is bad enough. The interpretation the courts have given the statute makes it a crime to actually exercise those rights, if, somehow you manage to get the tools to do so. In other words, if you copy a portion of a DVD, even for such things as clips to illustrate a review, you are guilty of violating Section 1201(a).

Now, posting short video clips on the Internet as part of a review is clearly not copyright infringement. In fact, such sort clips are paradigmatic examples of fair use. So, you might think that would be a defense. You would be wrong. Fair use is not a defense to section 1201(a) of the DMCA, at least according to one judge's opinion (Universal City Studios Inc. v. Reimerdes [PDF]) and the 2nd Circuit (Universal City Studios Inc. v. Corley).

Some have argued (for example, Judge Kaplan, who wrote the district court decision) that you can always copy from other media, such as videotape. Unfortunately, that doesn't help if what you want to review are "DVD extras." Furthermore, there is a little thing called "Macrovision," which might make copying from videotape a little difficult.

Now I guess you could videotape the images on television or monitor in order to get a clip, but that is not easy. First, it requires the additional expense of a video recorder (why should you need additional equipment if your computer could easily get the digital data directly from the DVD?). Second, taking video of another video is very difficult. Ah well, what does the Second Circuit care about good DVD reviews?

The law also makes it illegal to provide clips for other fair use purposes, such as this clip, which can be used to illustrate a point:

LawMeme: Men in Black & Copyright (MPG, 4.7Mb, 28 secs)

This clip from the original Men In Black movie could be used to illustrate a very interesting point in copyright. The point being, why should we have to pay for copyrighted material a second (or third, or nth) time simply because formats change? Hollywood loved the $ rush when people replaced their vinyl or tape collections with CDs, but that doesn't mean Hollywood should get such a rush everytime a new format comes along. Consumers own the CD and a legitimate right to access the copyrighted work. Consumers should not have to pay for another copy simply because a better storage medium comes along.

Too bad taking a clip from a DVD to illustrate the point is illegal.

For those without broadband, here is a transcript of the clip:

Agent J (Will Smith): What Branch of the Government Do we report to?
Agent K (Tommy Lee Jones): None. They ask too many questions.
Agent J: So who pays for all this?
Agent K: 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. It's gonna replace CDs soon. Guess I'll have to buy the White Album again.
 
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Related Links
· New York Times
· Revolt in the Den: DVD Sends the VCR Packing to the Attic
· New Reviews - Previous DVD Reviews - DVD Picks of the Week
· About.com
· MORIARTY’S DVD SHELF!
· Ain't It Cool News
· DVD Town
· DVD Talk Reviews
· Microsoft
· Slate
· DVD Extras
· Singin' in the Rain: A bucket of extras; plus, Gene Kelly's voice cracks
· Digital Millennium Copyright Act
· anti-circumvention provisions
· 17 USC 1201
· Copyright Act
· MPAA
· Content Scrambling System
· Universal City Studios Inc. v. Reimerdes
· Universal City Studios Inc. v. Corley
· Macrovision
· LawMeme: Men in Black & Copyright
· Men In Black
· Will Smith
· Tommy Lee Jones
· More about Digital Millennium Copyright Act
· News by Ernest Miller


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"User's Login" | Login/Create an Account | 5 comments
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Re: Don't Try To Review This At Home (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, September 25 @ 13:24:18 EDT
I don't think the DMCA has anything to do with this. The issue is fair use of the extra clips on a DVD or in your example, from the movie itself. Review shows such as Ebert and Roper show clips all the time to illustrate their reviews. A review site can do the same thing (for example "Note that the director's commentary is dull and sounds like he was being forced to do it at gunpoint"). The reason why the other sites don't have video clips is likely due to bandwidth contraints and the cost of serving video. Do you have any examples of a site showing reasonable fair-use clips being forcing to shutdown?


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Re: Don't Try To Review This At Home (Score: 2, Interesting)
by MusicPundit (aimee (at) MusicPundit dot com) on Sunday, September 29 @ 21:21:18 EDT
(User Info | Send a Message) http://www.MusicPundit.com
I have a question for legal scholars here. I'm interested in steganography as a way of protecting copyrighted works. Let me explain...

Suppose I took a copyrighted work, called Aimee's Music 1.mp3 and I encrypted it (using steganography) inside of another mp3, called Aimee's Music 2.mp3, which was in the public domain. Now, everytime someone copied the public domain work Aimee's Music 2.mp3, would they be violating any law because the copyrighted work, Aimee's Music 1.mp3 was encrypted inside?

What if they didn't know, or couldn't know, that the copyrighted Aimee's Music 1.mp3 was encrypted inside the public domain Aimee's Music 2.mp3 - because, say, it was strong encrypted and the key was not public? Now would they still be violating any law?

Please consider, too, that the steganography is intended as a device for protecting access to the copyrighted work, and in fact would be a very effective device.

There's a lot more to discuss here, but let me start with this to see if anyone has any thoughts.

Ed. I double-posted this in the wrong thread. Please remove the other duplicate comment... Sorry!


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Re: Don't Try To Review This At Home (Score: 1, Insighful)
by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, October 01 @ 19:03:52 EDT
Two additional thoughts on the subject.

1) The lack of "balance" is perhaps the biggest problem with the DMCA, and other copyright laws passed since 1992. Starting with the DHRA where copy protection was mandated for digital audio tape (and incidentally gave control of any consumer owned recording into the hands of studios), these laws have been restricting the sale and use of consumer devices. The problem is that the laws have not (with one exception) put any restrictions on the ability of the copyright holders to use these restrictions. This is the ultimate problem with DRM as proposed by Hollings and the industry; the copyright holders get all the control.

The DMCA had one “innovative” section K, where the copyright holders supposedly were required to give up some control in return for mandating copy protection in all VCRs to deal with rental video copyright infringement (the MacroVision thing). There were two big problems with section K, the thing copyright holders supposedly gave up was time-shifting – an action that the Supreme Court had already ruled was legal. The other problem was that there were no limits put onto the copyright holders about what they could copy protect (using the MacroVision single). The result is that the industry copy protected virtually every video, rental or not. People who have purchased the copy protected videos are now prevented from a wide variety of legal activities such as format transfer and back-up copies (don’t laugh, my 3-year old has worn out several VHS tapes).

2) The other problem is that there is no law requiring fair-use “enablement”. At least two courts have written opinions that copyright holders are not required to make fair-use “easy”. The article mentions Judge Kaplan’s argument (along with the obvious problems of that weak argument). A recent California judge (forget the full cite) ruled that fair-use was not impaired with DVD copy protection because you could use a camera to capture still frames and a tape recorder for the audio. This is of course, assuming the Hollings law did not pass, because devices that could take pictures of a video would be outlawed (even with cameras out of the picture, I guess that same judge would rule that fair-use was not impaired because you could still describe the video by using hand gestures and humming :-(

Both of these points really point towards the need to create affirmative rights for copyright consumers. If congress is going to give away rights (and ultimately the control and money of ordinary citizens), it needs to be very careful in making sure it is only used for the appropriate purpose! If they want to use DRM, the circumstances have to be controlled very carefully (don’t forget the endgame, how can DRM protected materials ever pass into the public domain -- example: anything that was only recorded on a DIVX DVD is gone forever).

We must see that “fair-use” and “non-regulated-use” of copyrighted material is protected by law too. That is the essence behind DigitalConsumer’s Bill of Rights.


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