FC: AAP's Allan Adler replies: "DMCA critics have missed the boat!"

[Declan McCullagh <declan () well com>]

My initial column that sparked this thread:
http://www.politechbot.com/p-03907.html

A response from Ed Felten and Barbara Simons to which Allan (of the 
Association of American Publishers) is replying:
http://www.politechbot.com/p-03912.html

---

From: "Allan R. Adler" <adler () publishers org>
To: "'declan () well com'" <declan () well com>
Cc: politech () politechbot com, "'harsha () cra org'" <harsha () cra org>
Subject: RE: Reply to "How bad is the Digital Millennium Copyright Act?"
Date: Thu, 22 Aug 2002 13:43:23 -0400
MIME-Version: 1.0

Declan - I don't know what you do with these kinds of things, but I thought
it worth commenting on this particular criticism of the referenced piece you
published.

Clearly, the critics here themselves have once again "missed the boat" in
explaining how the DMCA exerts a "chilling effect" on computer science
research. While correctly noting that the DMCA's Section 1201
anticircumvention regime has two distinct parts - one that addresses
circumvention devices, and one that addresses acts of circumvention - the
critics' reading of the prohibition against acts of circumvention is yet
another example of the kind of far-fetched interpretation of  the DMCA that
leads to continuing fear-mongering by scientific research organizations and
their legal representatives and results in unnecessary acts of
self-censorship within the scientific research community.

Their statement that "there is little doubt in the legal community" that
Prof. Felten's research on the SDMI screening technology proposals, "and
similar research, would be illegal under the 'acts of circumvention'
provisions" is preposterous. It is extremely doubtful that ANYONE in the
legal community, outside perhaps the EFF, holds that view.

The legislative history for the prohibition against circumventing access
controls (note: the only kind of measure that is subject to this
prohibition) characterizes such acts of circumvention as "the electronic
equivalent of breaking into a locked room..."  The only "acts of
circumvention" conducted by Felten and his team in connection with the
SDMI's proposed technological measures were clearly sanctioned at the time
they occurred as part of the team's participation in the SDMI Public
Challenge, and consequently were not at issue in their subsequent lawsuit
for declaratory relief. What WAS at issue in that lawsuit was whether the
publication and/or public presentation by Felten of a paper describing his
team's research and successful attacks on the SDMI measures would violate
the DMCA's "trafficking in circumvention device" provisions under Section
1201(a)(2) or (b).

In my e-mail response to your inquiry prior to your writing of the piece, I
explained to you why it was extremely doubtful that any court would find
such presentation/publication of scientific research to be a violation of
the "trafficking in circumvention device" provisions as they were written by
Congress. It is even more doubtful that a court would find that kind of
presentation or publication activity to constitute a prohibited "act of
circumvention" under Section 1201(a), since it is hard to imagine how the
mere presentation or publication of a paper -- even one that clearly
describes how to circumvent -- could itself be considered an "act" of
circumvention under the provision as it was written by Congress.

It is also worth noting that, even if the critics' extraordinary reading of
the prohibition against acts of circumvention were correct, it's probable
that Felten and his team still would not have been subject to its reach
because the SDMI screening technology proposals at issue appear to have been
anticopying, rather than access, controls and only the latter are subject to
the prohibition on acts of circumvention.

If, as the critics explain, Felten's employer (i.e., Princeton University)
was so concerned about the possible "cost of an adverse judgment" that two
individuals would likely have lost their jobs if the paper was published,
the "chilling effect" at issue in the Felten case more properly might be
laid at the door of a risk-averse university than attributed to the
threatened application of a law that does not plausibly even reach the
activity in question except under the most strained interpretation.

No matter how carefully Congress crafts a law such as the DMCA, it cannot
prevent people from attempting to invoke the law, either through their
ignorance or bad-faith, in ways that overreach Congressional intent. This
seems to be the case both with supporters AND opponents of the DMCA.

Best, Allan Adler




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