Why Do DMCA Supporters Want To Rewrite Ed Felten's History So Badly?

Legal Issues

from the this-again? dept

In 2001, Princeton computer science professor Ed Felten was getting ready to present some findings he and some colleagues made exposing weaknesses in the SDMI copy protection scheme the recording industry was pushing at the time. The recording industry had actually put out a challenge for anyone to crack SDMI, promising $10,000 to anyone successful (the idea was that this would somehow get “hackers” on the recording industry’s side). Felten and the colleagues successfully cracked SDMI — but rather than collect the $10,000, he (like a good professor should) decided to publish the details in a paper presented at a conference (which was outside the rules of the $10,000 contest, which Felten never agreed to). What happened? The recording industry went ballistic and threatened Felten that they would sue him if he presented the paper. They also demanded that he destroy all copies of the paper. They used the DMCA anti-circumvention rule as the peg on which to charge him. This was obviously a total misuse of the DMCA. Felten then went to court to get permission to publish the paper, noting how this seemed like a violation of the DMCA — and how this showed how the DMCA went against the First Amendment in chilling free speech. The RIAA, in a rare moment of clarity, realized this was insanely risky for them, and started backtracking. They claimed they never actually intended to sue, despite the threatening letter which said they would. Because of that, the case was dismissed. However, the very real potential that the RIAA might have sued certainly was picked up on by researchers around the world, and clearly did create a “chilling effect” on research.

However, supporters of the anti-circumvention rules (read: the recording industry and their friends) have been working overtime to rewrite history and turn the Felten case into something entirely different. At the CATO copyright conference back in April, one of the speakers from the Progress and Freedom Foundation dismissed the worries over the Felten case, noting that it had a “happy ending.” Felten promptly hit back at that claim, noting that it was “happy in the same way one is happy to recover from food poisoning.” Either way, that misses the point. No matter what the ending was, the overall impact clearly is going to make researchers think twice about the research they do. If there’s even the threat that the RIAA might sue them, it’s going to make them go in a different direction.

Tim Lee is now pointing to yet another attempt by DMCA supporters to rewrite history with regards to Prof. Felten. In this case, Lee Hollar claims that Felten took the case to court after the RIAA backed off and did so to opportunistically try to strike down a DMCA law he didn’t like. This is flat out false and does Felten a huge disservice. His lawsuit was filed beforehand, and was much more focused on allowing his paper to be presented. The effort to knock out the DMCA was in reaction to its use to chill potential research. The reason he tried to keep the case going afterwards was to help prevent those chilling effects for others (and for his own future research). Hollar’s article also has numerous other misleading statements. He spends a lot of time on the totally bogus argument that we can’t change the DMCA since it would violate international treaties (treaties which the US helped make) and also cites the small number of anti-circumvention cease-and-desist letters that have gone out. That, of course, is the wrong thing to look at. The chilling effects come much earlier, such that the research isn’t even done. The cease-and-desists only come after the research is done and preparing to be published. It appears, though, that DMCA supporters really don’t like the Felten example, and are working hard to rewrite history in their favor.