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SDMI crack team launches preemptive suit

Quixotic benefactor EFF paves the way

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The Princeton University team which rose successfully to the SDMI challenge is asking the US District Court in New Jersey to issue a declaratory judgment absolving them of liability before releasing the results of their research into cracking several anti-piracy technologies.

Arrangements had previously been made to release the results, but legal threats from the music industry citing the dreaded Digital Millennium Copyright Act (DMCA) caused the team to withdraw. In this case, the team is asking the court to rule before the fact that they have the right to release their paper.

The team, led by Princeton University Professor Edward Felten, hopes to release the results at the Usenix Association security symposium in August, without fear of subsequent recording-industry molestation under the DMCA. The Electronic Frontier Foundation (EFF) will do battle in court on Felten's behalf.

Seeking a declaratory judgment is not an every-day legal move, because the issue to be decided needs to be one in which there's a fair level of legal uncertainty, and one in one in which there's a fair likelihood that a dispute would ensue and end up before the bench in any case, EFF Legal Director Cindy Cohn explained to The Register.

Declaratory judgments are most often sought in cases with First Amendment implications, where legal uncertainty can have a chilling effect on public communication. Courts tend to be more aggressive in dealing with such cases because "the First Amendment seeks to create a general atmosphere of freedom to speak," Cohn noted.

In this case, Felten has been inhibited from speaking to his academic colleagues about his research. This, he says, is an ominous trend. It's unsettling that "researchers should have to get permission from companies to publish their papers," he told us.

He added that inhibiting academic speech has significant negative implications for the public at large. "The public interest is served by accurate information about the technology they're being asked to buy," he said.

Indeed, the watermarking technologies Felten and company cracked were "quite weak," he told us. "If they had been better, then we wouldn't have been able to crack them easily." This is important, as companies are being asked to invest in this technology, and consumers asked to buy equipment to accommodate it.

Cohn made a similar point, and added that there's also an important public interest at risk here in non-infringing uses of copyrighted material. This can involve anything from making a backup copy of a CD or DVD one has purchased, to publishing excerpts of a copyrighted work for criticism or analysis in a news report or an academic paper.

Following the Money

The EFF, which is supported solely by its membership, is shouldering the brunt of the costs for Felten's suit. We were pleasantly surprised to learn from Felten that Princeton University and Rice University have also contributed services of their legal departments, and even paid for some outside counsel.

But the lion's share is coming from EFF, which, Cohn told us, has assigned three staff attorneys on a nearly full-time basis to the case and retained two outside attorneys on Felten's behalf.

Because Felten has in the past announced intent to publish his paper, and then withdrawn it, citing probable industry legal attacks after getting a good deal of ink, we had to ask Cohn if she thought Felten could have been putting out bait for a Quixotic advocate such as herself to get involved on his behalf, and bear the costs.

"I don't feel played at all," she told us. "I think he was smart" to establish the fact that his speech was inhibited by legal concerns; "but I don't think he planned it that way."

Felten assured us that the timing was natural. "None of us wanted this to happen," he told us. "Now we're doing what is necessary to make sure that it doesn't happen again."

However, the recording industry believes Felten's suit is indeed a publicity stunt: "Professor Felten's decision to sue the RIAA and the SDMI Foundation is inexplicable," an RIAA press release says.

"We have unequivocally and repeatedly stated that we have no intention of bringing a lawsuit against Professor Felten or his colleagues. It seems that the professor, or the Electronic Frontier Foundation, would have preferred that we sue in order to keep their publicity machine running. Since we've said we have no issue with the publication of the Felten paper, they now resort to suing us to keep this issue alive."

But according to EFF's reply, the RIAA statement is disingenuous: "RIAA attorneys spent nearly a month on the phone threatening litigation against everyone associated with publishing the research paper and demanding changes to the paper. RIAA attorneys only started issuing press statements to the contrary after they succeeded in squelching [it]," EFF notes.

And as for EFF's motivation here, it goes well beyond publicity, or even a single professor's right to publish a single paper -- which is all the RIAA and SDMI were ever offering to guarantee.

"EFF and the plaintiffs seek not only publication of this research paper without fear of prosecution, but a clear legal determination that no one needs the permission of the record companies before publishing and presenting scientific work."

And that, we have to say, is something very much worth fighting for. ®

Related Link

EFF's court filing

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