Publish and Perish
In 1998 Congress passed a law. Actually, they passed a whole bunch of laws in 1998. The one we're concerned with is the Digital Millennial Copyright Act (or DMCA) and its bringing together of the Recording Industry of America (RIAA), another organization with a four-letter designation SDMI, and Professor Richard Felten of Princeton University.
SDMI stands for Secure Digital Music Initiative, a group whose purpose, according to its Web site, is to "protect the playing, storing, and distributing of digital music." In September 2000, as part of that mission, the SDMI put out an open challenge, inviting the digital community to try and defeat various security technologies they were considering.
Professor Richard Felten and some colleagues at Princeton, Houston's Rice University, and researchers at Xerox, successfully defeated all four of the security technologies presented in the challenge. And everything was fine. That is until Professor Felten et al. wanted to publish a paper, as academics tend to do, about their research and deliver that paper at a conference in April 2000.
Oops. That resulted in a letter from the RIAA in which Professor Felten was explicitly informed on four instances (maybe five, depending how you interpret it) that delivering his paper would subject him to legal action under the DMCA.
Turns out that section 1201 of the DMCA contains something called anti-circumvention measures, which basically make it illegal to not only traffic in technology that could be used to defeat security measures on protected works, but also to simply make such technology available to other people. Felten's counsel Cindy Cohn, legal director at the Electronic Frontier Foundation, finds section 1201 unsettling.
"I think [the RIAA] got a weapon, and I think that was their goal all along," she states. "I think their goal was to use the specter of a threat to copyright to gain the ability to have much more control over works in the digital world than they ever had in the analog world."
The RIAA letter to Felten indicated they thought that if he published his work, it could be used as a how-to guide for people wanting to defeat the technologies in question.
Feeling that his First Amendment rights were being jeopardized, Professor Felten sued the RIAA for the right to publish the paper and for clear legal determination that no one needs permission from record companies to publish and present scientific works in the future.
Jano Cabrera, speaking for the RIAA, admits that the letter was a "mistake" and it "was far too strong, much too threatening," and they never had any intention to sue Felten to keep him from presenting his paper in the first place.
"The fact of the matter is they received that letter, they interpreted it, they made an announcement as to what their interpretation of the letter was, and as soon as they did that, that same day, our general counsel said that was not the purpose of that letter," Cabrera says.
Felten issued a response claiming that, "RIAA attorneys spent nearly a month on the phone threatening litigation against everyone associated with publishing the research paper."
Cohn backs up Felten's statement.
"Put it this way," she says. "I can tell you for a fact that my clients felt threatened. And while there's no way I can give you the entire flavor of the negotiations, it wasn't, 'Pretty please, could you change what you're writing.'
"It was, 'Make these changes or face these consequences.' Princeton University's chief counsel felt threatened. Rice University's chief counsel felt threatened. Xerox's chief counsel felt threatened."
Cabrera counters that the intention of the letter was only to get Felten at a negotiating table with Verance, one of the digital security companies involved in the SDMI challenge. This they eventually accomplished, but in Cabrera's words, "the negotiations fell apart."
Felten has since gotten permission from the RIAA to deliver his paper at another conference in August, but the Electronic Frontier Foundation is going ahead with its lawsuit.
"We would like to get this thing settled once and for all," says Cohn, "not just for this paper, but for future papers, so future researchers don't have this shadow -- they don't have to parse legal letters to decide whether they were threatened.
"This researcher problem, while it's the issue, is part of a broader problem with the anti-circumvention provisions of the law. And those provisions in general are a First Amendment problem, because they limit what people can publish. Here, they're limiting what a professor can publish."