Weak copyright protection vs. academic freedom

By Ann Harrison
Network World Peer-to-Peer Newsletter, 06/20/01

Let's say you are trying to protect copyrighted material on a file sharing system with a digital watermark and a group of researchers informs you that your technology is weak and can be defeated.

Should you A: thank the researchers for pointing out the flaw and find a better system to protect your copyrighted material. Or B: attempt to suppress this information, use a weak watermark system you know will be compromised and attempt to prosecute everyone who breaks it.

It appears that the recording industry has chosen B and is attempting to use the blunt instrument of the Digital Millennium Copyright Act (DMCA) to shut up a bunch of academic researchers who simply answered an industry challenge to break a watermarking scheme. This large, powerful industry is about to learn an important lesson about the First Amendment and academic freedom.

The DMCA is a very curious law. It makes it illegal to distribute any technology that " is primarily designed or produced for the purpose of circumventing a technological measure. " It also prohibits " the intentional removal or alteration of copyright management information. "

Last year, the Secure Digital Music Initiative Foundation (SDMI) held a contest offering up to $10,000 to anyone who " can remove the watermark or defeat the other technology on our proposed copyright protection system. " In response, Professor Ed Felten of Princeton University and seven other researchers wrote a paper describing their successful attempt to remove a watermark, created by a company called Verance, from a digital music file.

Felten and his co-authors planned to present their work at an academic gathering called the Information Hiding Workshop. But recording industry groups, including the Recording Industry Association of American (RIAA) said this violated the DMCA and threatened legal action against the researchers.

The researchers were successfully pressured into withholding the publication of their data. After the conference, the SDMI claimed they never intended to bring legal action. But the researchers were not amused. On June 6, they struck back and filed a lawsuit in a New Jersey federal court naming the RIAA, SDMI, Attorney General John Ashcroft and the watermarking company Verance as defendants.

Felten, who is an associate professor of computer science, argues that studying digital access technology and publishing the research is fundamental to the progress of science and academic freedom. He notes that the recording industry's interpretation of the DMCA would make these activities illegal. " It became evident that litigation was the only step we could take, " said Felten during a press conference announcing the lawsuit.

In the lawsuit, the researchers have requested that they be allowed to present their findings at a computer security conference in Washington, D.C. this August, sponsored by the venerable 26-year-old Usenix Association. The Association, which brings together engineers, system administrators, scientists and technicians working on the cutting edge of the computing world, has accepted Felten's paper and also joined the researchers in the lawsuit. The plaintiffs are asking for a declaratory judgment from the court that considers the constitutional issues of the case.

The Usenix Association is asking the court to block the U.S. Justice Department from prosecuting the conference organizers. It is worried about the " commercial " activities provisions of the DMCA which levy fines of up to $500,000 and five years in prison. The San Francisco-based Electronic Frontier Foundation (EFF), which has another suit against movie studios challenging the DMCA, is representing both groups.

EFF legal director Cindy Cohen says researchers should not have get approval from corporations to carry on the business of scientific discovery. " When scientists are intimidated from publishing their work, there is a clear First Amendment problem, " says Cohn. " We have long argued that unless properly limited, the anti-distribution provisions of the DMCA would interfere with science. Now they plainly have. "