In a move that shows just how wary of free speech the recording industry has become, a Princeton computer science professor announced Thursday that he would not be presenting a paper that revealed how he and his colleagues cracked SDMI — the recording industry’s chosen method of cryptographically protecting digital music. Edward Felten, who was scheduled to present his findings before the Fourth International Information Hiding Workshop in Pennsylvania, explained that threats of legal action by the Recording Industry Association of America had persuaded him to stay silent.
Free-speech advocates should be cheering his decision.
First, some background to the story: Last fall, the Secure Digital Music Initiative held a “Hack SDMI” contest, asking hackers to try to break their proposed watermarking schemes for digital music. Felten, a cryptography expert from Princeton University, and several of his students took SDMI up on the offer, and soon announced that they had indeed cracked all four watermarks. But the group withdrew its hacks after Phase 1 of the contest. Instead of claiming the prize, Felten announced that he would publish a paper explaining how his team broke the watermarks for research purposes.
Six months later, Felten planned to finally reveal his research. But in early April, the professor received a letter from Matthew Oppenheim, senior vice president of business and legal affairs for the RIAA, threatening him with legal action if he persisted on publishing his paper. According to Oppenheim, Felten was violating the terms of a click-through agreement he “signed” when he participated in Hack SDMI, which forbade any public revelation of cracking methodologies.
More disconcertingly, Oppenheim also invoked the Digital Millennium Copyright Act. An excerpt from his widely circulated letter reads: “Because public disclosure of your research would be outside the limited authorization of the Agreement, you could be subject to enforcement actions under federal law, including the DMCA.”
In other words, SDMI and the RIAA were hoping to prevent the professor from publishing legitimate research by invoking the Digital Millennium Copyright Act. At first glance, they succeeded. Felten withdrew his paper from the conference, saying that “litigation is costly, time-consuming, and uncertain, regardless of the merits of the other side’s case. Ultimately we, the authors, reached a collective decision not to expose ourselves, our employers, and the conference organizers to litigation at this time.”
Felten’s decision can be seen as eminently savvy — and not because he chose to avoid litigation. His actions, along with the shortsighted bullying tactics of the RIAA, set a precedent that could potentially undermine the widely disparaged DMCA.
On May 1, 2600 Magazine is heading to the 2nd U.S. Circuit Court of Appeals to battle the legitimacy of the Digital Millennium Copyright Act, which was invoked to prevent the 2600 Web site from distributing the DeCSS DVD decryption code. The Electronic Frontier Foundation, which has argued that the DMCA is too onerous and is being used by big corporations to quash free speech online, is calling the 2600 legal battle “a landmark case about free speech and copyright on the Internet.”
Thanks to the Felten fiasco, the EFF and 2600 Magazine have a new weapon in their legal arguments against the loathed copyright law: The RIAA has now, in effect, used the DMCA to stifle academic research. As Roger Parloff and Charles Mann pointed out in Inside.com, even the authors of the DMCA didn’t intend for this to happen.
The upshot? The DMCA is being constitutionally undermined by the RIAA’s own decision to try to gag a high-profile professor. Felten surely recognized this when he decided to be “intimidated” into pulling his paper (realizing, of course, that it was already being widely distributed on the Internet anyway).
Of course, the DMCA is the recording industry’s favorite weapon, and has been invoked in most of its copyright battles against Napster and a host of other music sites. The last thing the recording industry wants is to lose this useful legal tool, and in the wake of Felten’s announcement, the RIAA seems to have also realized its tactical mistake. On Thursday, Oppenheim released a backpedaling statement: “The Secure Digital Music Initiative Foundation (SDMI) does not — nor did it ever — intend to bring any legal action against Professor Felten or his co-authors. We sent the letter because we felt an obligation to the watermark licensees who had voluntarily submitted their valuable inventions to SDMI for testing … The Recording Industry Association of America, one of the founding members of SDMI, strongly believes in academic freedom and freedom of speech.”
Alas, for the RIAA, it may be too little, too late. The question now is whether the EFF’s lawyers will be wise enough to bring this up in their legal arguments next week — and whether the judge in the 2nd U.S. Circuit Court of Appeals will see through the RIAA’s charade.