Hollaar on the DMCA, WIPO, and Ed Felten

IPI has a new article up arguing that the DMCA shouldn’t be repealed because it would violate our treaty obligations.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.

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