Hollaar on the DMCA, WIPO, and Ed Felten

by on June 22, 2006 · 26 comments

IPI has a new article up arguing that the DMCA shouldn’t be repealed because it would violate our treaty obligations. This doesn’t strike me as a particularly persuasive argument, given the amount of weight the United States carries in the international arena, and given that the anti-circumvention provisions of WIPO were inserted largely at the urging of the Clinton administration. If American policymakers thought that the DMCA was bad policy, I doubt they’d have too much difficulty getting the relevant provisions of WIPO changed.

I also didn’t think this paragraph was quite right:

The case commonly mentioned regarding the chilling effects on research of the DMCA anticircumvention provisions involved Princeton professor of computer science Edward Felten, who received a threatening letter from the Recording Industry Association of America (RIAA) regarding his proposed publication of results from a test of a new protection mechanism. (He was able to crack it.) Even after the RIAA backed off, Felten took the case to court to try to have the DMCA struck down, but was unsuccessful. His efforts were not “chilled” so much as he was seizing an opportunity to try to get the DMCA struck down in court.

This isn’t how I’ve generally heard the story told. According to news reports at the time, Felten’s goal was a declaratory judgment that publishing their paper would not be a violation of the DMCA. Although I suspect Prof. Felten would have jumped at an opportunity to get the DMCA struck down in court, I don’t think that was his goal in this case. He was simply seeking a ruling that the DMCA wasn’t applicable to his particular situation.

Update: I’ve looked up the original lawsuit. Felten and his colleagues sought “a Declaration from this Court that publication of the paper is lawful.” It then offered two specific arguments. First it argued that the plaintiffs did not violate the DMCA, and second it alleges that to the extent that the DMCA prevents the publication of security research, it’s in violation of the First Amendment.

So Hollaar’s interpretation has more merit than I initially gave him credit for. I’m still not sure I see how this proves that Felten’s speech wasn’t chilled, though. The RIAA did send Felten a letter stating that publishing the paper “could subject you and you research team to actions under the Digital Millennium Copyright Act.” That would certainly have a chilling effect on my speech if I were in Felten’s shoes. The fact that the RIAA “backed off” after their threat succeeded in preventing the publication of the paper at the Information Hiding Workshop hardly proves that Felten had nothing to worry about.

  • http://lippard.blogspot.com/ Jim Lippard

    Ed Felten has explained his case himself:

    [Background on the lawsuit: In 2001, recording industry organizations threatened to sue me and seven of my colleagues if we published a paper we had written that discussed certain technology. They argued that publishing the paper would violate the Digital Millennium Copyright Act. We filed a lawsuit, asking the court to rule on the question of whether our publication of the paper would be legal.]

    [...]

    After we filed our lawsuit, the recording industry parties conceded our right to publish our paper, which was the main result we sought. Once we had the right to publish the paper, our constitutional challenge to the DMCA was dismissed as moot.

    I encourage reading the whole post from Felten.

  • http://lippard.blogspot.com/ Jim Lippard

    Ed Felten has explained his case himself:

    [Background on the lawsuit: In 2001, recording industry organizations threatened to sue me and seven of my colleagues if we published a paper we had written that discussed certain technology. They argued that publishing the paper would violate the Digital Millennium Copyright Act. We filed a lawsuit, asking the court to rule on the question of whether our publication of the paper would be legal.]

    [...]

    After we filed our lawsuit, the recording industry parties conceded our right to publish our paper, which was the main result we sought. Once we had the right to publish the paper, our constitutional challenge to the DMCA was dismissed as moot.

    I encourage reading the whole post from Felten.

  • Tim Schneider

    Here’s another post where he addresses the revisionist history of the suit.

    http://www.freedom-to-tinker.com/?p=1010

  • http://www.freedom-to-tinker.com Ed Felten

    Tim,

    I’m not sure why you think our First Amendment claim indicates that we weren’t fighting to publish our paper. If the court had ruled that our paper did violate the DMCA, then the First Amendment argument was the best (and probably only) way to get the paper published.

    DMCA boosters can repeat the speech-was-not-chilled claim as often as they like, but it’s still false. There are two big examples of the chill. First, WE ACTUALLY DID WITHDRAW THE PAPER FROM PUBLICATION at the Information Hiding Workshop. Second, ONE OF MY COLLEAGUES LOST HIS JOB BECAUSE OF THE PAPER. Sorry for yelling, but I’m sick of having this lie repeated.

    At the time we filed our suit, the RIAA and SDMI had not withdrawn their threats — they told the press that they had never objected to our paper (which was false) but they refused to tell us that they would not sue if we published the paper. And note that the RIAA and SDMI were not the only two parties that had threatened us. The other party, Verance, had done nothing to withdraw their threat. It was only after we filed our lawsuit that all of them promised definitively not to sue.

    Note that the IPI paper is extensively footnoted. But the paragrpah that makes false assertions about our paper and lawsuit has no footnotes, no quotations, no references to primary documents. That’s because their claims aren’t supported by the record.

  • Tim Schneider

    Here’s another post where he addresses the revisionist history of the suit.

    http://www.freedom-to-tinker.com/?p=1010

  • http://www.freedom-to-tinker.com Ed Felten

    Tim,

    I’m not sure why you think our First Amendment claim indicates that we weren’t fighting to publish our paper. If the court had ruled that our paper did violate the DMCA, then the First Amendment argument was the best (and probably only) way to get the paper published.

    DMCA boosters can repeat the speech-was-not-chilled claim as often as they like, but it’s still false. There are two big examples of the chill. First, WE ACTUALLY DID WITHDRAW THE PAPER FROM PUBLICATION at the Information Hiding Workshop. Second, ONE OF MY COLLEAGUES LOST HIS JOB BECAUSE OF THE PAPER. Sorry for yelling, but I’m sick of having this lie repeated.

    At the time we filed our suit, the RIAA and SDMI had not withdrawn their threats — they told the press that they had never objected to our paper (which was false) but they refused to tell us that they would not sue if we published the paper. And note that the RIAA and SDMI were not the only two parties that had threatened us. The other party, Verance, had done nothing to withdraw their threat. It was only after we filed our lawsuit that all of them promised definitively not to sue.

    Note that the IPI paper is extensively footnoted. But the paragrpah that makes false assertions about our paper and lawsuit has no footnotes, no quotations, no references to primary documents. That’s because their claims aren’t supported by the record.

  • http://www.techliberation.com/ Tim Lee

    I didn’t mean to imply you weren’t fighting to get your paper published. In my update, I was just correcting the earlier statement that you weren’t trying to get the law struck down. I think that clearly if the DMCA, had been found to prohibit publishing your paper, that would raise serious First Amendment concerns.

    Sorry for the confusion.

  • http://www.techliberation.com/ Tim Lee

    I didn’t mean to imply you weren’t fighting to get your paper published. In my update, I was just correcting the earlier statement that you weren’t trying to get the law struck down. I think that clearly if the DMCA, had been found to prohibit publishing your paper, that would raise serious First Amendment concerns.

    Sorry for the confusion.

  • Lee Hollaar

    Ed Felten’s statement “ONE OF MY COLLEAGUES LOST HIS JOB BECAUSE OF THE PAPER.” is extraordinary, since such a dramatic claim does not appear to be made in the litigation, at least in the complaint and declarations on the EFF web site of information about the case.

    After hearing all the evidence, here is what the judge said:

    The plaintiffs liken themselves to modern Galileos persecuted by authorities. I fear that a more apt analogy would be to modern day Don Quixotes feeling threatened by windmills which they perceive as giants. There is no real controversy here.
    The plaintiffs may wish to strike down the Statute, but their concern is, as the defendants say, political, rather than a legal concern, one that can best be pursued in the halls of the Legislature until they have a real case or controversy to bring before this Court.

    I guess that’s the footnote I should have included.
    ——–
    As for my “arguing that the DMCA shouldn’t be repealed because it would violate our treaty obligations,” here is what I really said:

    H.R. 1201 should not be the mechanism for putting the United States in violation of its trade agreements. If such a far-reaching decision is to be made, it should be after careful debate based on an understanding of the anticircumvention provisions. It should not happen by the passage of a misleading bill that repeals the provisions through stealth.

  • Lee Hollaar

    Ed Felten’s statement “ONE OF MY COLLEAGUES LOST HIS JOB BECAUSE OF THE PAPER.” is extraordinary, since such a dramatic claim does not appear to be made in the litigation, at least in the complaint and declarations on the EFF web site of information about the case.

    After hearing all the evidence, here is what the judge said:

    The plaintiffs liken themselves to modern Galileos persecuted by authorities. I fear that a more apt analogy would be to modern day Don Quixotes feeling threatened by windmills which they perceive as giants. There is no real controversy here.

    The plaintiffs may wish to strike down the Statute, but their concern is, as the defendants say, political, rather than a legal concern, one that can best be pursued in the halls of the Legislature until they have a real case or controversy to bring before this Court.

    I guess that’s the footnote I should have included.

    ——–

    As for my “arguing that the DMCA shouldn’t be repealed because it would violate our treaty obligations,” here is what I really said:

    H.R. 1201 should not be the mechanism for putting the United States in violation of its trade agreements. If such a far-reaching decision is to be made, it should be after careful debate based on an understanding of the anticircumvention provisions. It should not happen by the passage of a misleading bill that repeals the provisions through stealth.

  • http://www.freedom-to-tinker.com Ed Felten

    Lee,

    I’m not sure what you’re trying to imply when you call my statement “extraordinary”. If you’re trying to imply that the statement is false, then all I can say is that you should have talked to some of the people involved before making assertions about what did or didn’t happen.

    Your statement that our speech was not chilled is clearly inconsistent with the facts, for example with the fact that we had to withdraw our paper from publication in IHW, and the fact that Verance made legal threats against us and asked for a long list of redactions in the paper.

    Your statement that the RIAA withdrew their threat before we filed the suit is also false. What evidence do you have to support it? (Pay attention to dates — they did withdraw the threat later.)

  • Lee Hollaar

    I wasn’t trying to imply anything by saying that your statement was “extraordinary.” As I said, it seems to me extraordinary that such an important thing as somebody losing their job did not seem to make it into the pleadings of the case or the various depositions.
    But it could be that I just missed it, so if it is there, please point it out.
    ——
    As to the order of things, here is what the judge found:

    And, of course, they said that it was never our intention to bring any kind of action against Felten. And this — we’re going back before this lawsuit was filed. The irony is that the defendants having said we’re not going to sue you, the plaintiffs decided apparently to catalyze this action by bringing a suit themselves.

    And one thing that I noted was that Mr. Oppenheim, in a letter to plaintiffs’ counsel, said that the RIAA and the SDMI do not object to the publication of the academic papers identified in the complaint, and gave a list of published statements, which they’ve expressly disavowed any intention of initiating litigation and said we, frankly, don’t know how we could have been any clearer. Or to paraphrase a popular phrase, what part of the word yes don’t you understand?

  • http://www.freedom-to-tinker.com Ed Felten

    Lee,

    I’m not sure what you’re trying to imply when you call my statement “extraordinary”. If you’re trying to imply that the statement is false, then all I can say is that you should have talked to some of the people involved before making assertions about what did or didn’t happen.

    Your statement that our speech was not chilled is clearly inconsistent with the facts, for example with the fact that we had to withdraw our paper from publication in IHW, and the fact that Verance made legal threats against us and asked for a long list of redactions in the paper.

    Your statement that the RIAA withdrew their threat before we filed the suit is also false. What evidence do you have to support it? (Pay attention to dates — they did withdraw the threat later.)

  • Lee Hollaar

    I wasn’t trying to imply anything by saying that your statement was “extraordinary.” As I said, it seems to me extraordinary that such an important thing as somebody losing their job did not seem to make it into the pleadings of the case or the various depositions.

    But it could be that I just missed it, so if it is there, please point it out.

    ——

    As to the order of things, here is what the judge found:

    And, of course, they said that it was never our intention to bring any kind of action against Felten. And this — we’re going back before this lawsuit was filed. The irony is that the defendants having said we’re not going to sue you, the plaintiffs decided apparently to catalyze this action by bringing a suit themselves.

    And one thing that I noted was that Mr. Oppenheim, in a letter to plaintiffs’ counsel, said that the RIAA and the SDMI do not object to the publication of the academic papers identified in the complaint, and gave a list of published statements, which they’ve expressly disavowed any intention of initiating litigation and said we, frankly, don’t know how we could have been any clearer. Or to paraphrase a popular phrase, what part of the word yes don’t you understand?

  • http://www.freedom-to-tinker.com Ed Felten

    Lee,

    This is why I asked you to be careful about dates. The Oppenheim letter to which the judge referred was sent after we filed our suit. The issue in that court hearing was not about the state of affairs when we filed the suit; it was about whether the suit could continue given RIAA, SDMI, and Verance had, AFTER WE FILED THE SUIT, withdrawn their threats.

    Do you have any evidence, either in the record or out, that the RIAA, SDMI, and Verance withdrew their threats before we filed the suit?

  • http://www.freedom-to-tinker.com Ed Felten

    Lee,

    This is why I asked you to be careful about dates. The Oppenheim letter to which the judge referred was sent after we filed our suit. The issue in that court hearing was not about the state of affairs when we filed the suit; it was about whether the suit could continue given RIAA, SDMI, and Verance had, AFTER WE FILED THE SUIT, withdrawn their threats.

    Do you have any evidence, either in the record or out, that the RIAA, SDMI, and Verance withdrew their threats before we filed the suit?

  • Lee Hollaar

    Here’s what I wrote: “Even after the RIAA backed off, Felten took the case to court to try to have the DMCA struck down, but was unsuccessful.”
    From the first amended complaint: “50. After the SDMI paper was withdrawn, Defendant RIAA issued a press release claiming that they had not intended to sue the researchers.”
    In its motion to dismiss, the RIAA states that “Matthew J. Oppenheim,
    Secretary of the SDMI and Senior Vice President of Business and Legal Affairs of
    the RIAA, issued a press release on behalf of the SDMI and RIAA expressly stating
    that the SDMI ‘does not Ã?¢â?‰? nor did it ever Ã?¢â?‰? intend to bring any legal action against
    Professor Felten or his co-authors.’ Matthew J. Oppenheim, Press Release (April
    26, 2001).”
    The suit was filed June 6, 2001.
    It sure sounds like the RIAA had backed off at the time the suit was filed, which is what I wrote.

    ——
    Have you found anything in the record yet about “ONE OF MY COLLEAGUES LOST HIS JOB BECAUSE OF THE PAPER”?

  • Lee Hollaar

    Here’s what I wrote: “Even after the RIAA backed off, Felten took the case to court to try to have the DMCA struck down, but was unsuccessful.”

    From the first amended complaint: “50. After the SDMI paper was withdrawn, Defendant RIAA issued a press release claiming that they had not intended to sue the researchers.”

    In its motion to dismiss, the RIAA states that “Matthew J. Oppenheim,
    Secretary of the SDMI and Senior Vice President of Business and Legal Affairs of
    the RIAA, issued a press release on behalf of the SDMI and RIAA expressly stating
    that the SDMI ‘does not Ã?¢â?‰? nor did it ever Ã?¢â?‰? intend to bring any legal action against
    Professor Felten or his co-authors.’ Matthew J. Oppenheim, Press Release (April
    26, 2001).”

    The suit was filed June 6, 2001.

    It sure sounds like the RIAA had backed off at the time the suit was filed, which is what I wrote.

    ——

    Have you found anything in the record yet about “ONE OF MY COLLEAGUES LOST HIS JOB BECAUSE OF THE PAPER”?

  • Anonymous

    Your evidence is an RIAA press release? A release which they did not affirm to us in a signed letter, or even verbally?

    (Your selective quotation from our complaint is a clever bit of lawyering. Readers: for the whole story, see paragraph 50 at http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010626_eff_felten_amended_complaint.html)

    And what about the threats from Verance? The RIAA press release did not claim that these threats had been withdrawn — indeed it hinted pretty strongly that they were still in force. (Read it at http://www.riaa.com/news%5Cnewsletter%5Cpress2001%5C042501.asp) You make no claim that the threats from Verance were withdrawn before we filed our suit.

    Regarding the lost job, and why it wasn’t mentioned in our complaint: If you’ve ever had a friend or colleague forced out of a job under difficult circumstances, perhaps you can understand why that person might not want to announce the details of what happened to the whole world (including prospective employers) right away.

  • http://www.freedom-to-tinker.com Ed Felten

    That last comment was from me.

  • Anonymous

    Your evidence is an RIAA press release? A release which they did not affirm to us in a signed letter, or even verbally?

    (Your selective quotation from our complaint is a clever bit of lawyering. Readers: for the whole story, see paragraph 50 at http://www.eff.org/IP/DMCA/Felten_v_RIAA/200106…)

    And what about the threats from Verance? The RIAA press release did not claim that these threats had been withdrawn — indeed it hinted pretty strongly that they were still in force. (Read it at http://www.riaa.com/news%5Cnewsletter%5Cpress20…) You make no claim that the threats from Verance were withdrawn before we filed our suit.

    Regarding the lost job, and why it wasn’t mentioned in our complaint: If you’ve ever had a friend or colleague forced out of a job under difficult circumstances, perhaps you can understand why that person might not want to announce the details of what happened to the whole world (including prospective employers) right away.

  • http://www.freedom-to-tinker.com Ed Felten

    That last comment was from me.

  • http://shoutingloudly.com Bill Herman

    Hollaar’s article is poorly reasoned and filled with factual inaccuracies. For a rebuttal perhaps as long as the article itself, see my extended response on ShoutingLoudly.

  • http://shoutingloudly.com Bill Herman

    Hollaar’s article is poorly reasoned and filled with factual inaccuracies. For a rebuttal perhaps as long as the article itself, see my extended response on ShoutingLoudly.

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