Computer scientists and lawyers united last month on an issue that also resonates with journalists in an attack on the Digital Millennium Copyright Act (DMCA). Cindy Cohn, legal director of Electronic Frontier Foundation (EFF), says that without some changes in the DMCA, computer scientists will do their research under a shadow of illegality and threats of lawsuits if they publish or speak about their research into the technology behind encrypted music compact discs. The DMCA imposes a liability on anyone who attempts to circumvent encryption; Cohn said the act is unconstitutional and that it unnecessarily chills free speech. “Government censorship is not OK,” Cohn told a room of computer scientists at the 10th USENIX Security Symposium in Washington in mid-August. USENIX is an association of computing systems specialists. In June, EFF launched a lawsuit on behalf of researchers from Princeton and Rice universities who successfully removed a digital “watermark” from a music file. The Secure Digital Music Initiative, a coalition of music, entertainment and software companies, had offered a $10,000 prize to anyone who could break the encryption within a month. The computer scientists, led by Edward Felten of Princeton University, succeeded in three weeks but declined the prize so they could publish their works. They had planned to present a paper in April at another conference. But Matthew Oppenheim, of the Recording Industry Association of America, wrote a thinly veiled threat to Felten and his team in early April that disclosing the results of their research in a scholarly paper or any other form “would subject your research team to enforcement actions under the DMCA and possibly other federal laws.” The June lawsuit was a sort of pre-emptive strike to obtain permission from the recording association to present the paper in August as well as an opportunity for EFF and other electronic freedom advocates to push for reform to the digital copyright laws. Oppenheim since has given permission for the August presentation, but the recording industry’s approval did not extend beyond that conference and that presentation. Cohn told the scientists that the association moved to dismiss the lawsuit because the standoff with the challenge team had been resolved, but she added that EFF was pursuing the constitutional challenge. “We set out to, at a minimum, free these scientists of the shadow they’ve been under since April when the paper was pulled,” Cohn said. “But we also want to get the court to see the broader unconstitutionality (of the DMCA). Our argument is that there’s a broader problem.” A trade journalist at the presentation said mainstream media have failed to recognize that their stake in the digital copyright issue because the DMCA implicates the First Amendment. Cohn agreed and said one specific concern that she believes media organizations should have is whether they can be liable for reporting about banned encryption research and republishing the results of the research. American University law professor Peter Jaszi said an investigative journalist who hires someone to help him access information leaked to him on a password-protected floppy disk can also be held responsible for breaking the digital copyright law. This is despite the fact that the same information leaked in paper form is protected under the fair use laws. He added that the digital copyright statute does not recognize the common argument that illegally obtained information was in the “public interest.” That argument can help tip the scales in the media’s favor in some instances where privacy interests are weighed against the public’s right to know. Jaszi explained the digital copyright act’s provisions and exemptions, including the primary ban on any attempt to circumvent encryption as well as accompanying bans on manufacture or distribution of access tools and of tools for copying. Some exemptions are included for law enforcement, encryption research and security testing purposes, but Jaszi said the research and testing exemptions are qualified by a long list of subjective factors. Among those factors are the consent of the owner of the technology and professional qualifications of the tester or researcher. In his technical presentation on the results of the research, Scott Craver, a Princeton graduate student, said one of the biggest flaws the researchers found in the watermarks is that they were too intricate to be effective. “It was a complex system with several single points of failure,” Craver told the computer scientists. He said he was “not optimistic” about the success of watermark encryption for software such as digital recordings, but added that he believed watermarks could be useful to determine, for example, whether a digital photograph had been tampered with to put President Clinton’s face in another picture. The recording industry’s challenge was designed to discover how infallible its encryption was. The letter from Oppenheim said he understood the scientists’ purpose was “motivated by a desire that will engage in scientific research,” but he warned that publicizing their results could “directly lead to the illegal distribution of copyrighted material.” Craver explained how his team’s research using a common encryption detector actually showed them how that detector could be improved. With the restrictions placed on the team and other scientists by the DMCA, however, improvements in technology might never see the light of day. Cohn called on the scientists to lobby public support for an overhaul to the DMCA to make it conform to First Amendment rights of free speech so scientists can publicize their research. The recent arrest of Dmitry Sklyarov, a Russian computer programmer who worked on software that decrypts the Adobe eBook format, has brought the Digital Millennium Copyright Act into the public eye. Sklyarov was visiting the United States for a Las Vegas professional conference when he was arrested July 16 under the DMCA. He was freed on bail Aug. 6 and is required to stay in California, where the charges were filed, until his trial. Cohn added that in the wake of publicity over the April RIAA threat and Sklyarov’s arrest, some other foreign computer scientists are hesitant to publish their research into digital encryption in the United States or to travel here, fearing they’ll be prosecuted for their work. Although the circumstances of Sklyarov’s criminal arrest and EFF’s civil challenge to the act likely won’t have any effect on each other in the court system, Cohn said the outcry about Sklyarov will help educate the American public about the act and why it should be reworked. She added, “We need to educate the general public about … why tools aren’t going to be as good as they could have been because scientists have been stifled.”
Karen E. Klein was an SPJ Pulliam/Kilgore intern at Baker and Hostetler, SPJ’s legal counsel in Washington, D.C. She is a second-year law student at Indiana University in Bloomington.