provision of the law, asking questions irrelevant to the capacity to vote. Under the DMCA, fair users needed to understand that a digital file created in one way is illegal, while a digital file of the same movie created in another way is legal. Yet the issue of how to define and identify a circumvention technology has no relation to artistry or to fair use—nor even to deterring copyright infringement, given the alternatives discussed previously.

illustration by glueKit, PhotograPh by leFt eyeD PhotograPhy / shutterstoCK. CoM

Then the digital poll tax kicked in:
remixers were supposed to use a cam-
corder or screen capture software, both
of which often produce degraded re-
sults. We do not usually tell artists they
have to use bad materials to make their
creative works, even in the name of pro-
tecting previous artists. Visual quality
can be especially vital to cultural critics.
If pop culture has luscious imagery, and
critics have to speak in hard-to-watch
forms, their already-marginal work is
further hampered by looking incompe-
tent. Ironically, camcorders and screen
captures can work for making first-gen-
eration copies that are good enough to
watch—and thus passably satisfying
for true pirates—but not good enough
to survive the multiple generations of
digital manipulation and editing often
involved in a remix, since each iteration
involves some image degradation just
as it would in analog editing. For ex-
ample, screen capture tends to produce
dropped frames, making time editing
all but impossible. Thus, the DMCA
hits hardest at transformative, critical
uses by people interested in conform-
ing with the law, and does the least
damage to pure copiers.

the DmCa
hits hardest
at transformative,
critical uses by
people interested
in conforming
with the law.

era, a tripod for stability, a perfectly dark room to prevent light pollution, and a large TV. In combination, the qualitative and financial burdens imposed by compliance with anticircumvention law erected profound barriers to effective use of video clips, for anyone who managed to learn about them.

None of this was difficult to predict when the DMCA was enacted, and from the beginning critics denounced its effects on fair use. Courts, however, considered the structural disadvantages created by the DMCA too hypothetical and general to justify any limits on the scope of the law.a

 

Rulemaking as safety Valve
This legal regime had particularly
damaging effects on members of
marginalized groups who are already
likely to have limited resources and to
be uncertain about expressing them-
selves. There is a narrow avenue for
relief: the DMCA provides for a trien-
nial rulemaking procedure allowing
the Librarian of Congress to create
temporary exemptions to the ban on
circumventing access controls where
a Universal City Studios, Inc. v. Corley, 273 F.3d
429 (2nd Cir. 2001).