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 ------------------------------------------------------------------------- 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? 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