FC: Ed Felten replies to AAP's Allan Adler over DMCA threats

[Declan McCullagh <declan () well com>]

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

2. A response from Ed Felten and Barbara Simons:
http://www.politechbot.com/p-03912.html

3. Previous Politech message by Allan Adler, from the Association of 
American Publishers:
http://www.politechbot.com/p-03914.html

---

Date: Fri, 23 Aug 2002 08:11:16 -0400
Subject: Re: Reply to "How bad is the Digital Millennium Copyright Act?"
From: Peter Harsha <harsha () cra org>
To: <declan () well com>
CC: "Allan R. Adler" <adler () publishers org>

Declan,

Allan Adler was kind enough to cc: his response to our Politech post to me,
so I took the liberty of sending it to Felten, Lazowska, and Simons for
their response.

Thanks again,
-Peter Harsha

[Ed Felten responds]

My rebuttal to Adler:

[Focusing on the factual statements in Adler's note:]

> 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.

Note that the "acts of circumvention" part of the DMCA does not contain
an exception if you get permission first.  Presumably, if X gives you
permission, then X cannot sue you afterward.  But what stops you from
being sued by somebody else?  (Section 1203 of the DMCA says that "any
person injured by a violation" can sue.)

> 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.

He has his technical facts wrong here.  We did not circumvent the SDMI
Screening system.   We circumvented watermarks.  Those watermarks are
usable for access control.

> 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.

Large institutions are risk averse -- that's not news.  The fact that a
large organization hired expensive outside lawyers to study the
situation, and then decided not to risk a lawsuit, can only be evidence
*for* a chilling effect.  This is basically just an attempt to blame the
victim.

[Ed Lazowska adds]

To the final point, additionally, it was not Princeton employees who
were at risk, it was others.  Ed F. chose to make a more fundamental
point, but this detail is relevant too.

-----

--
Peter Harsha
Director of Government Affairs
Computing Research Association
1100 17th St, NW Suite 507
Washington, DC 20036-4632
202-478-6135 (new)
fax: 202-478-6313 (new)
mobile: 202-352-8105 (new)
http://www.cra.org




-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
-------------------------------------------------------------------------
Like Politech? Make a donation here: http://www.politechbot.com/donate/
Recent CNET News.com articles: http://news.search.com/search?q=declan
CNET Radio 9:40 am ET weekdays: http://cnet.com/broadband/0-7227152.html
-------------------------------------------------------------------------