April 24, 2014

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Response to Declan’s DMCA Piece

Declan McCullagh misses the boat at least twice in his August 19th
column concerning the potential impact on computer science research of
the Digital Millennium Copyright Act ["Debunking DMCA myths," c|net
News.Com, http://news.com.com/2010-12-950229.html].

First, the DMCA has two arms: one that prohibits devices that circumvent
copy protection, and one that prohibits acts of circumvention. The
research conducted by Professor Felten and his colleagues took place
prior to the time when the “acts of circumvention” provisions became
effective in October 2000. Thus, these provisions did not apply to that
research. However, there is little doubt in the legal community that
this research, and similar research, would be illegal under the “acts of
circumvention” provisions. Declan fails to recognize this arm of the
DMCA in his column.

Second, the chilling effect of the DMCA cannot be described by the
probability of conviction alone. One must also consider the magnitude
of the exposure if convicted. Because the “acts of circumvention”
provisions of the DMCA were not in effect at the time of the Felten
research, the probability of an adverse judgment was indeed small.
However, a group of highly respected legal consultants told Felten’s
employer that the cost of an adverse judgment could be truly enormous.
The combination of these two factors had a very substantial chilling
effect. (It is also the case that two individuals were likely to lose
their jobs if the paper was published. This illustrates the human
dimension of the chilling effect.)

Other issues, on which we shall not elaborate, include the
anti-dissemination provisions of the DMCA, and the civil (in addition to
criminal) provisions.

It is disruptive to the progress of research when scientists must first
consult with attorneys to determine if previously legitimate research
might be in violation of the DMCA. We are happy to agree with Declan
that “The DMCA is … an egregious law … and should be unceremoniously
tossed out by the courts.”

Edward W. Felten
Princeton University

Edward D. Lazowska
University of Washington; Co-chair, Computing Research Association
Government Affairs Committee

Barbara Simons
Co-chair, ACM US Public Policy Committee