EFF Files First Anti-DMCA Lawsuit

The first direct legal challenge to the DMCA was filed at 9 a.m. EDT today by EFF-sponsored attorneys at the United States District Court in Trenton, New Jersey on behalf of Princeton Professor Edward W. Felten and others who helped crack a series of digital watermarking schemes as part of an SDMI Challenge sponsored by the RIAA. Named defendents include the RIAA, SDMI, Verance Corporation (producer of one of the cracked watermarked schemes) and U.S. Attorney General John Ashcroft.

If this were a movie, it might be called "Saving Professor Felten" and would open with thunder and bombast. In real life, filing a civil suit in a federal court is one of the most boring activities imaginable, even though it's a necessary first step in the process of overturning the DMCA.

Gino J. Scarselli, Outside Lead Counsel for EFF on the case, says, "We got to the courthouse at 8:30, filed around 9, and made motions to seal exhibits to the complaints." As explained in the Complaint itself, EFF filed several of their Exhibits with requests for them to be sealed, because they believe publication of them may invite a lawsuit. The Exhibits to be sealed are Professor Felten's completed paper for the upcoming USENIX conference, and two documents written by Princeton post-grad Min Wu about the investigation performed by Felten's team against the SDMI watermarks.

It was an overcast day in Trenton. Scarselli, along with local (New Jersey) attorneys Grayson Barber and Frank Corrado, and two of the plaintiffs, Princeton residents Bede Liu and Min Wu, went through a metal detector just like anyone else (aside from staff) who enters a courthouse these days.

Scarselli says, "the only person we talked to was a law clerk." Neither the defendants nor any lawyers representing them were present. There will be plenty of conflict later, but the opening round of this drama was so low-key that it was a total yawner for all involved parties. The whole thing was over by 9:45 a.m.

The Complaint Itself, Very Briefly

Prof. Felten and others, mostly professors and graduate students from Princeton and Rice Universities, accepted the SDMI challenge to crack a specific set of digital watermarks, but instead of turning their results over to SDMI in hopes of winning the $10,000 prize offered for a successful crack, they chose instead to publish their findings in the form of an academic paper, and to present that paper at the Fourth International Information Hiding Workshop [IHW], held in Pittsburgh on April 25-27, 2001. Felten and crew believed they had every right to present their research in this public, peer-reviewed scientific forum even though they had accepted a "click through" agreement before taking on the SDMI challenge, in large part because the license to which they agreed with their click contained these words:

"You may, of course, elect not to receive compensation, in which event you will not be required to sign a separate document or assign any of your intellectual property rights, although you are still encouraged to submit details of your attack."

Despite this, SDMI threatened Felten and the other involved parties, including IHW organizers, with legal action under the DMCA. After a long series of emails between Felten, his fellow researchers, IHW people, a representative of Verance Corp., and an attorney who works for both SDMI and RIAA, the original paper, "Reading Between the Lines: Lessons from the SDMI Challenge," was first modified, then finally withdrawn.

Now Felten and friends plan to present the same paper at a USENIX Security Symposium in Washington, D.C. on August 13-17, and are asking the court to tell the defendants not to sue or threaten legal action over this new publication or any other publication, and to tell the U.S. Department of Justice, run by Attorney General John Ashcroft, not to file criminal charges against USENIX or anyone else over this matter under the DMCA. As it says in the complaint:

68. In chilling publication, the DMCA wreaks havoc in the marketplace of ideas, not only the right to speak, but the right to receive information -- the right to learn. The main mission of USENIX is to organize forums where scientists and researchers learn from each other. By intimidating the individual plaintiffs into withdrawing their paper from the IHW, however, the private Defendants prevented people from learning. If the source of Defendants' power to threaten, the DMCA, is not dispelled, Plaintiffs will not be the only victims. Without full and open access to research in areas potentially covered by the DMCA, scientists and programmers working in those areas cannot exchange ideas and fully develop their own research. As a consequence, the DMCA will harm science.

69. By imposing civil and criminal liability for publishing speech (including computer code) about technologies of access and copy control measures and copyright management information systems, the challenged DMCA provisions impermissibly restrict freedom of speech and of the press, academic freedom and other rights secured by the First Amendment to the United States Constitution.

This is just a brief "taste" of what the complaint says. Full text is available here.

The Press Conference

It was held at noon Eastern time, in person simultaneously at EFF headquarters in San Francisco and at a room borrowed from Princeton University. A few reporters were at EFF headquarters in person, but most of us dialed in and participated by phone. The media turnout was impressive; reporters from the Boston Globe, Wall Street Journal, New York Times, AP, NPR, Reuters, Wired, and other major news outlets showed up, which was nice to see; Slashdot has been rather lonely in covering many DMCA matters and complaints. It was nice to see so many "mainstream" pressies finally paying attention.

Felten was in San Francisco. So was most of the legal crowd. USENIX Board member Avi Rubin was on the conference call telephone. The Princeton contingent was tiny, composed only of the people who had been at the court house earlier. EFF legal director Cindy Cohn opened the show from San Francisco with a rehash of the events leading up to the suit, most of which I recapped above. (You can find more information here.)

Felten spoke briefly. The basic thrust of his prepared speech can be summed up thusly: "We are asking the government to let us do what scientists have always done -- share the results of our research."

The USENIX people noted that they hold many conferences and may be subject to both civil suits and criminal prosecution if they publish papers DMCA legal threateners (like SDMI and RIAA) don't like, and view this suit as an attempt to maintain their First Amendment rights to freely distribute technical and scientific information to USENIX members and other interested parties.

Then the press questions began. The first dozen covered ground that is familiar to most regular Slashdot readers. There is no point in rehashing these questions when a Slashdot search for "SDMI + DMCA" or just "DMCA" will give answers to every one of them.

Then Hiawatha Bray, a tech columnist for the Boston Globe, wanted to know if the case would be dropped if the SDMI and/or RIAA decide to stop hassling Felten and USENIX. The attorneys said "No." Their point here is to prevent both private companies and the DoJ from bringing DMCA threats not only against the SDMI crack researchers but against anyone who might go through the same sort of ordeal in the future, so a settlement that affected only this case would not cause the EFF to drop it. Other questions and answers followed, but again, long-time Slashdot readers already know most of them, so we won't repeat them here.

Follow the Money

Ms. Cohn says the cost of this suit, "if fully litigated," could easily reach $2 million. She estimates that the EFF-sponsored 2600 DeCSS defense has already cost nearly $1.5 million, and that suit is still cranking up the appeals chain. She also says -- yes, this is a plug -- that Slashdot readers who want to donate money to help fund all this expensive legal action can check out the EFF Web site.

(Here's the EFF membership/donation page if you'd like to whip out your credit card and pop a few bucks their way; they need all they can get!)

This is Just the Beginning

Now, basically, we sit and wait. The lawyers do lawyer-dances involving lots of paperwork. Discovery motions pass back and forth. Amicus briefs get filed. A hearing date gets set, then there's a hearing, and another hearing, and so on.

The 2600/DeCSS case has been going on for a year and a half and still isn't over. This one is likely to drag out even more. Even if Prof. Felten, his associates, and USENIX win all the relief they seek, chances are high that the RIAA, SDMI or at least one of the other defendants will appeal -- and keep appealing all the way to the U.S. Supreme Court.

For more info, read the EFF Press Release

Comments

Riiight...

[Svartalf]

DMCA exists for one and only ONE reason- to CONTROL "intellectual" property.

Current patent and copyright law protects that already.

DMCA makes it illegal to own, make, or teach someone else how to make tools to exercise your fair usage rights. You're entitled to make copies of the content you've purchased for your own personal use (meaning for you and you alone). Doesn't matter what form the media is or the content- you're allowed that. DVDs don't let you play disks that are from different regions and if you've got a player that the DVD cartel didn't sanction (i.e. got a license from the DVD CCA to use CSS descrambling) then you don't get to play anything. The disk itself is not locked out (i.e. I can make an exact image copy with a DVD press and expect it to work, implicitly- if it were "protection" as you claim, it wouldn't work out that way).) and CSS is only there to prevent re-encoding to a new format or to play disks not in your region- it doesn't really protect anything

That, sir or madam, is content control not protection. It is there to keep people from making portion copies (fair use right) for personal projects, re-encoding to a lower bandwidth format (space/time shifting- another fair use right), and to keep them purchasing a disk in some other part of the world (Say, I buy in Singapore to watch on a DVD player there, but I live in the US- unless it's a region 1 disk, it's not going to be playable in a region 1 player...).

Clearly stated threat.

[Odinson]

The MPAA and the RIAA are now offically the enemy of the constitution (copywrite not impeading progress/science clause)

I have donating dollar for dollar to the EFF for every product I buy from the RIAA or MPAA member companies. My last donation was about US$130 and I excpect my next to top US$150.

It feels great, I suggest tring it. I watched some good movies too.

Charitable Donations and Corporate Matching

[TBone]

For those of you who work for big companies, look into your benefits you may find that your company will, up to a certain dollar amount, match any donations you yourself make to qualifying charitable organizations. I would suspect that the EFF would qualify.

If you want to donate, make sure you get the paperwork or forms you need to get your company to match your donation. My last company would match, IIRC, $500 of my donation. That's $1K to EFF for the $500 you might have given them anyway.

This space for rent. Call 1-800-STEAK4U

Re:Not the first lawsuit, the ONLY lawsuit

[Gromer]

Are you sure you posted this to the right article? I don't buy any of these arguments, and some of them just don't make sense.

• Are you saying that in a battle between a collection of large, faceless corporations and a small group of scientists at top-flight research institutions, the corporations have the respectability edge? Said scientists are "scruffy malcontents"? Come on. Academic speech is one of the most clear-cut instances of first-amendment-protected speech there is. The SDMI et. al. have a huge task ahead of them just avoiding looking like the goon squad- interfering with academic publication isn't a very pretty picture. Besides, who's this "we" you're talking about? The plaintiffs aren't hackers- they're academics. In the eyes of most judges, there's a world of difference.
• The fight isn't really over technical issues at all- it's over whether or not some scientists can publish a paper. The technical details of the paper are pretty much irrelevant. Besides, cases of this nature are seldom handled by a jury, and judges tend to make a good-faith effort to understand the technical issues they are confronted with.
• This argument is too ridiculous to be rebutted. Felten et. al. will loose the case because it would be a horrible miscarriage of justice? You make it sound like Hon. Justice Snidely Whiplash has been appointed to the case. A few ugly cases do not make a legal system which thrives on miscarriage.
• Erm, the government (U.S., state, or local) is a party in every criminal case in the country, yet somehow accused crmiminals are occasionally found innocent. The U.S. Government has been on the losing end of any number of major court cases, including many more important than this one (yes, there is such a thing). Besides, the U.S. government is not a defendant- the attorney general is, and he is a defendant only in a rather formal sense- nobody's accusing him of a crime. They need to include Ashcroft as a defendant in order for the case to have the scope necessary to get an order preventing possible future prosecutions of USENIX and others. In short, they need to get the government involved, even though the case is not a DMCA prosecution, in order for the case to have the necessary scope.

Re:Driving Force of the Case

[IanCarlson]

It is absolutely worth listening to. To hear about the case in the EFF's own words was quite enlightening.

I suppose part of me is unhappy to find out about the recording, though...

At about 12:10PM EST, I called in and got an operator who asked me for a whole slew of information, which I gave. Before she tossed me into the mix, I asked her if callers were muted by default and she told me that they were. So, I put the conference on my work speakerphone and a few people begin gathering around, listening and talking about the case while Felten is going into details about the report that started all of this.

All of a sudden, the whole conference erupted into a chorus of people telling us to shut up. It was around this time we realized that the call was not muted at that everyone on the conference could hear us.

You would think the friggin' EFF would moderate their conferences a little better, but obviously not.

Embarrassed, I cover the mouthpiece and start to kick myself for making an ass of myself in front of reporters from about twenty major news organizations.

But then I realized, there are people who go through life without ever even having the chance to make an ass of themselves on such a grand scale, and I quickly began feeling an awful lot better about myself.

I never really liked the Associated Press or NPR much anyway.

Re:They must be stopped

[TWR]

Just as it is wrong to destroy your home with a wrecking ball (defeating the function of the house), is it not wrong to defeat the purpose of the algorithim?

If there was a DMCA-style law against house-destroying, you would now be guilty. You just described how to destroy a house. You didn't actually destroy a house, approve of someone else doing so, but the act of description is itself a crime.

That's what Professor Felton did. He didn't hack anyone's data. He just said, "here's how to do it."

So, you going to turn yourself in now, thought criminal?

-jon

EFF is poor!

[Gorimek]

According to the EFF web site, their yearly budget is only $2M, which is less than nothing compared to the giant bullies they're fighting. So if you have any money to donate, they do count!

A thought: Right to bear arms.

[Gerad]

I just had a random thought. The 2nd Amendment says that people have the right to bear "Arms". Dictionary.com, other than the normal definition as a part of one's body, has one definition of "arms" as weapons. Given the MPAA's recent comparisons of DeCSS to a crowbar, which is a weapon, I wonder if DeCSS could be argued under right to bear arms? While the 2nd Amendment does say that the purpose of the Amendment is to allow militias, which are "necessary to the security of a free state", hasn't it also been interperted to allow firearms to prevent against tyrany if necessary. Of course, this opens up the whole can of worms of gun control laws and regulation, but it's something I'd love to hear some feedback on.

OT: Reminiscent of the dark ages

[PhrackCreak]

The RIAA and SDMI are acting like the church in the dark ages. In the old days, attempting to perform research or disseminate scientific ideas led to excommunication or death. Today, the corporations sue you out of existence.

Re:OT: Reminiscent of the dark ages

[SomeoneYouDontKnow]

Somebody mod this guy up. This is an excellent point. In the Middle Ages, the Church had reached a status that essentially put it above the law. In fact, it had its own laws and "justice system". Get out of line, and you were dead...literally. It was an international entity that was beyond the regulatory reach of any nation-state. In fact, any political figure who dared to oppose it did so at grave peril. We can see the same lines developing with the multinational corporations.

It's also worth noting that this dark time lasted for centuries, and there were many setbacks to breaking the Church's grip on power. Let us not forget that Gallileo was forced to recant his theories. We can look back now and say that his ideas prevailed in the end, but I bet he didn't see it that way at the time. We're in this for the long haul, and we will face setbacks along the way, but the important thing is to never give up. I should also point out that one of the biggest achievements in the fight against Church power was the Protestant Reformation. Martin Luther gave the people an alternative to the Church, and that opened the floodgates of pent-up frustration and dissatisfaction. Suddenly, there were choices that had never existed before. In the same way, we can't forget that the big entertainment companies don't own our lives. There is alternative content, and we need to expose as many people as possible to it. And there's even an alternative to that: Go outside, play ball, have a conversation with someone. IOW, take control of your leisure time and take it out of the hands of the corps. The less money we give them, the less money they'll have to buy the tools to control our lives. And no, this isn't an easy chore. For the past 50 years at least, our entire culture has been built around mass-produced entertainment, and to turn away from that is to remake ourselves. Couch potatoes all over the land will howl in protest, but we have to try to break this addiction and bring the corporate dealers to heel.

Re:They must be stopped

[Auckerman]

This is NOT about Intellectual property, it is about free speech. It is about the rights of artists (thats right, artist). Let ME tell YOU why copy control will ruin culture.

Picture it, all Media and Media creators have copy control built in. Not only that, but it uses a similiar strategy that DVD uses: Licensed keys. Now, what makes you think that some kid working on an album in his basement will be able to create that media so that it plays on standard players? If he could, then the very nature of the key system has been broken.

They don't want to make it illegial to copy media, it has already been illegal for a VERY LONG TIME to do that. They don't want to "protect intellectual property", its already legally protected. They want to control who can create the players and who can create the content. GIven them full control over what is publish and what is not published. A monolopy based of a mutual agreement not to compete based on price or artisitic contractual obligations (RIAA anyone?).

The government should have absolutly no vested interest limiting the free exchange of ideas. Any ideas. No matter how absurd they are, no matter what they can be used for. Without that guarantee, we all might as well be slaves.

If i can publish a book detailing how to make bombs, why can't Fenton publish a paper on how SDMI is full of crap? There is no difference.

"Chilling Effect"

[Kinchie]

Amen.

And now we know the rest of the story.

All of you that were railing about academic freedom being impinged upon as well as Prof. Felten's lack of courage (yes, that was commonly stated here) should apologize, sit down, and practice stfu for awhile.

The reason they pulled the paper was simple: they created a clear instance of the DMCA enabling a "chilling effect" on free speech.

Which leads to the conclusion that, since there has been precedence for "chilling effect" making laws unconstitutional for 1st amendment thingies, that this case is intended to go to the Supremes, BEFORE the composition of the court is changed any further towards corporatism.

Elegant, sneaky, and truly Machiavellian.

We owe all parties concerned a profound debt of thanks...

Re:This lawsuit is a total setup.

[ryants]

Since the RIAA has already stated in public that they have no intention of suing Felten, it's pretty obvious to everyone that he is just picking a fight.

And of course, the RIAA can be completely trusted to follow through on non-legally binding public declarations.

This is much more important than "picking a fight" or "getting attention"... this is about defeating a very bad piece of legislation that should never have been passed in the first place.

Ryan T. Sammartino