April 24, 2014



Seth Finkelstein points to a rather sloppy analysis by Peter Davies of the Felten v. Recording Industry lawsuit. There is enough of this sort of thing going around that I feel compelled to rebut it.

[Background on the lawsuit: In 2001, recording industry organizations threatened to sue me and seven of my colleagues if we published a paper we had written that discussed certain technology. They argued that publishing the paper would violate the Digital Millennium Copyright Act. We filed a lawsuit, asking the court to rule on the question of whether our publication of the paper would be legal.]

For starters, Davies gets basic facts wrong. He says that the International Information Hiding Workshop, at which we wanted to publish our paper, was organized by the recording industry. In fact, it was an independent, refereed scientific conference.

Amazingly, Davies also misstates the final resolution of our case, saying that “[t]he case was settled in the end without a result.” In fact, no settlement was agreed to by the parties. After we filed our lawsuit, the recording industry parties conceded our right to publish our paper, which was the main result we sought. Once we had the right to publish the paper, our constitutional challenge to the DMCA was dismissed as moot.

Davies appears to think that we should just have gone ahead with publishing our paper, daring the recording industry to sue us. Seth Finkelstein rightly criticizes him for this.

To people like Davies, the Felten case is just an abstract topic for speculation. Let me assure you cases like this look much different if you are Felten (or any of the other would-be defendants: Bede Liu, Scott Craver, Min Wu, Dan Wallach, Ben Swartzlander, Adam Stubblefield, and Drew Dean).

I am happy to admit that if we had gone ahead and published the paper without any lawsuit, the odds were only 50/50 that we would have been sued, and we probably would have won the lawsuit.

Probably, I would have kept my house.

Probably, I would have kept my job.

When it’s not your house on the line, when it’s not your job, then probably may be enough. To people like Davies, who had nothing personally at risk, a lawsuit would have been no more than a scholarly conversation piece.

For me and my colleagues, probably wasn’t enough. Even a 99% chance of getting to keep our houses and savings wasn’t enough. Nor should it be. I am still outraged when people like Davies suggest that it’s not a problem if researchers have to put so much at risk just to write or speak on certain topics of public interest.