Legal Watch: Talkin’ ‘Bout a Revolution? Technology and the Law

By Donna R. Euben

In 1998 Congress enacted the DMCA in an attempt to balance the interests of creators and users of intellectual property in relation to emerging technologies. The DMCA includes an anticircumvention provision that makes it a crime for an individual to distribute decryption technology, which can circumvent the encryption technology used to bar access to copyrighted works. The DMCA also provides an exception from its coverage for certain kinds of "legitimate research," the scope of which is sufficiently unclear that litigation ensued.

In June 2001 Edward W. Felten, an associate professor of computer science at Princeton University, and colleagues sued the Recording Industry Association of America (RIAA), the Verance Corporation, and others. Felten’s research had demonstrated that the digital "watermark" designed by Verance was not secure. (Record companies use watermarks to prevent people from downloading or distributing copyrighted digital audio content.) Felten alleged that the RIAA had threatened legal action if he and his colleagues presented his decryption code at a conference. The researchers contended that the breaking of the watermark code was not "an end unto itself" but a "crucial step, either in attempting to improve the technology or in attempting to prove that the technology cannot be made to do what it is supposed to do."

The researchers asked the court to grant them immunity from prosecution under the DMCA and to declare the law unconstitutional. The RIAA alleged that Felten and his team had violated the DMCA and that allowing Felten to publish or present his research would violate copyright law.

In November 2001 a district court judge dismissed Felten’s lawsuit, concluding that because no injury had occurred, any ruling would be an "ephemeral adjudication." The judge stated that the computer scientists mistakenly "liken themselves to Galileo," but they are really "modern day Don Quixotes feeling threatened by windmills that they perceive as giants." In January 2002 Felten chose not to appeal the decision, reportedly relying on the assurances of industry and government officials that "they will never again threaten publishers of scientific research that exposes vulnerabilities in security systems for copyrighted works."

Academics lined up on both sides of another legal tussle involving publication of a computer program on the Internet that can circumvent technology the movie industry devised to block the copying of movies stored on digital video discs, or DVDs. The question is whether the technology violates the DMCA.

In November 2001 a federal appellate court ruled that Eric C. Corley and his company, 2600 Enterprises, Inc., violated the copyright protections of eight motion picture studios under the DMCA by publishing decryption code on the Internet. Corley’s lawyer argued that the DMCA law jeopardizes free-speech principles because of improper "distinctions between pen-and-ink and point-and-click." The movie industry contended that the primary purpose of Corley’s decryption code was to pirate copyrighted material. Law professors filed friend-of-the-court briefs in support of both sides.

The federal appellate court held that the DMCA does not violate the First Amendment. The court found computer code to be speech. As one lawyer argued, "If you can put it on a T-shirt, it’s speech." At the same time, the court held that such code is entitled only to limited First Amendment protection, because the code is more "functional" than "expressive." The district court had reasoned that "computer code is not purely expressive any more than the assassination of a political figure is purely a political statement." In the end, the appellate court held that Corley’s right to post his code on the Internet was outweighed by the potential harm his program posed in the form of contributing to pirating of motion pictures. Corley is seeking review of the decision by all the judges on that federal appellate bench.

In the end, the academic community must closely monitor legal challenges to the DMCA to ensure that the judiciary strikes a proper balance, between support of the maintenance of copyright protections, and promotion of the principles of free speech, academic freedom, and reasonable access to information.

Donna Euben is AAUP counsel.

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