Competition to find flaws in encryption code prompts lawsuit for clarification on liability

From the Summer 2001 issue of The News Media & The Law, page 29.

A group of professors and students who are concerned about being prosecuted under digital copyright law filed a suit in U.S. District Court in New Jersey on June 6 against the recording industry and technology protection companies, as well as the U.S. Department of Justice.

Research teams from Princeton and Rice universities wanted to present their findings at a seminar in Washington, D.C., on Aug. 15, but sought protection from the court to ensure they did not violate the Digital Millennium Copyright Act. The DMCA makes it illegal to distribute information that would make it possible to decode a technological protection measure for digital products.

Edward Felton, a computer science professor at Princeton, and some of his students competed in “Hack SDMI,” an event created to determine the weaknesses of an encryption program called the Secure Digital Music Initiative designed for the music industry.

The SDMI “watermark” was designed to keep people from making unauthorized recordings of digital music, but Felton and his students were able to decode the watermark protection system.

In April, the scientific research team had planned to release its findings at a seminar but were discouraged by representatives of SDMI because the release essentially would provide the public with a way to decode certain technological protection measures.

“If this law really in fact does say that people are not allowed to disseminate information that can be used to teach people how to bypass technological protection measures then that legislation is an unconstitutional restraint on speech,” said Robin Gross, an attorney for the Electronic Frontier Foundation, which represents the university researchers.

Only July 12, the Recording Industry of America, SDMI, and the watermark owner Verance Corporation filed a motion to dismiss the lawsuit.

In the motion, the parties stated that they have “repeatedly expressed publicly and in correspondence with [attorneys representing the scientists] — both before and after this lawsuit was filed — that there was no objection whatsoever to the [researchers] publishing or presenting” their papers.

Gross said should the court grant the motion to dismiss, the lawsuit could continue because it also challenges the constitutionality of the DMCA.