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

From: Declan McCullagh (declanat_private)
Date: Fri Aug 23 2002 - 08:41:25 PDT

  • Next message: Declan McCullagh: "FC: Ed Felten replies to AAP's Allan Adler over DMCA threats"

    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" <adlerat_private>
    To: "'declanat_private'" <declanat_private>
    Cc: politechat_private, "'harshaat_private'" <harshaat_private>
    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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