If this were a movie, it might be called "Saving Professor Felten" and would open with thunder and bombast. In real life, filing a civil suit in a federal court is one of the most boring activities imaginable, even though it's a necessary first step in the process of overturning the DMCA.
Gino J. Scarselli, Outside Lead Counsel for EFF on the case, says, "We got to the courthouse at 8:30, filed around 9, and made motions to seal exhibits to the complaints." As explained in the Complaint itself, EFF filed several of their Exhibits with requests for them to be sealed, because they believe publication of them may invite a lawsuit. The Exhibits to be sealed are Professor Felten's completed paper for the upcoming USENIX conference, and two documents written by Princeton post-grad Min Wu about the investigation performed by Felten's team against the SDMI watermarks.
It was an overcast day in Trenton. Scarselli, along with local (New Jersey) attorneys Grayson Barber and Frank Corrado, and two of the plaintiffs, Princeton residents Bede Liu and Min Wu, went through a metal detector just like anyone else (aside from staff) who enters a courthouse these days.
Scarselli says, "the only person we talked to was a law clerk." Neither the defendants nor any lawyers representing them were present. There will be plenty of conflict later, but the opening round of this drama was so low-key that it was a total yawner for all involved parties. The whole thing was over by 9:45 a.m.
The Complaint Itself, Very Briefly
Prof. Felten and others, mostly professors and graduate students from Princeton and Rice Universities, accepted the SDMI challenge to crack a specific set of digital watermarks, but instead of turning their results over to SDMI in hopes of winning the $10,000 prize offered for a successful crack, they chose instead to publish their findings in the form of an academic paper, and to present that paper at the Fourth International Information Hiding Workshop [IHW], held in Pittsburgh on April 25-27, 2001. Felten and crew believed they had every right to present their research in this public, peer-reviewed scientific forum even though they had accepted a "click through" agreement before taking on the SDMI challenge, in large part because the license to which they agreed with their click contained these words:
"You may, of course, elect not to receive compensation, in which event you will not be required to sign a separate document or assign any of your intellectual property rights, although you are still encouraged to submit details of your attack."
Despite this, SDMI threatened Felten and the other involved parties, including IHW organizers, with legal action under the DMCA. After a long series of emails between Felten, his fellow researchers, IHW people, a representative of Verance Corp., and an attorney who works for both SDMI and RIAA, the original paper, "Reading Between the Lines: Lessons from the SDMI Challenge," was first modified, then finally withdrawn.
Now Felten and friends plan to present the same paper at a USENIX Security Symposium in Washington, D.C. on August 13-17, and are asking the court to tell the defendants not to sue or threaten legal action over this new publication or any other publication, and to tell the U.S. Department of Justice, run by Attorney General John Ashcroft, not to file criminal charges against USENIX or anyone else over this matter under the DMCA. As it says in the complaint:
This is just a brief "taste" of what the complaint says. Full text is available here.68. In chilling publication, the DMCA wreaks havoc in the marketplace of ideas, not only the right to speak, but the right to receive information -- the right to learn. The main mission of USENIX is to organize forums where scientists and researchers learn from each other. By intimidating the individual plaintiffs into withdrawing their paper from the IHW, however, the private Defendants prevented people from learning. If the source of Defendants' power to threaten, the DMCA, is not dispelled, Plaintiffs will not be the only victims. Without full and open access to research in areas potentially covered by the DMCA, scientists and programmers working in those areas cannot exchange ideas and fully develop their own research. As a consequence, the DMCA will harm science.
69. By imposing civil and criminal liability for publishing speech (including computer code) about technologies of access and copy control measures and copyright management information systems, the challenged DMCA provisions impermissibly restrict freedom of speech and of the press, academic freedom and other rights secured by the First Amendment to the United States Constitution.
The Press Conference
It was held at noon Eastern time, in person simultaneously at EFF headquarters in San Francisco and at a room borrowed from Princeton University. A few reporters were at EFF headquarters in person, but most of us dialed in and participated by phone. The media turnout was impressive; reporters from the Boston Globe, Wall Street Journal, New York Times, AP, NPR, Reuters, Wired, and other major news outlets showed up, which was nice to see; Slashdot has been rather lonely in covering many DMCA matters and complaints. It was nice to see so many "mainstream" pressies finally paying attention.
Felten was in San Francisco. So was most of the legal crowd. USENIX Board member Avi Rubin was on the conference call telephone. The Princeton contingent was tiny, composed only of the people who had been at the court house earlier. EFF legal director Cindy Cohn opened the show from San Francisco with a rehash of the events leading up to the suit, most of which I recapped above. (You can find more information here.)
Felten spoke briefly. The basic thrust of his prepared speech can be summed up thusly: "We are asking the government to let us do what scientists have always done -- share the results of our research."
The USENIX people noted that they hold many conferences and may be subject to both civil suits and criminal prosecution if they publish papers DMCA legal threateners (like SDMI and RIAA) don't like, and view this suit as an attempt to maintain their First Amendment rights to freely distribute technical and scientific information to USENIX members and other interested parties.
Then the press questions began. The first dozen covered ground that is familiar to most regular Slashdot readers. There is no point in rehashing these questions when a Slashdot search for "SDMI + DMCA" or just "DMCA" will give answers to every one of them.
Then Hiawatha Bray, a tech columnist for the Boston Globe, wanted to know if the case would be dropped if the SDMI and/or RIAA decide to stop hassling Felten and USENIX. The attorneys said "No." Their point here is to prevent both private companies and the DoJ from bringing DMCA threats not only against the SDMI crack researchers but against anyone who might go through the same sort of ordeal in the future, so a settlement that affected only this case would not cause the EFF to drop it. Other questions and answers followed, but again, long-time Slashdot readers already know most of them, so we won't repeat them here.
Follow the Money
Ms. Cohn says the cost of this suit, "if fully litigated," could easily reach $2 million. She estimates that the EFF-sponsored 2600 DeCSS defense has already cost nearly $1.5 million, and that suit is still cranking up the appeals chain. She also says -- yes, this is a plug -- that Slashdot readers who want to donate money to help fund all this expensive legal action can check out the EFF Web site.
(Here's the EFF membership/donation page if you'd like to whip out your credit card and pop a few bucks their way; they need all they can get!)
This is Just the Beginning
Now, basically, we sit and wait. The lawyers do lawyer-dances involving lots of paperwork. Discovery motions pass back and forth. Amicus briefs get filed. A hearing date gets set, then there's a hearing, and another hearing, and so on.
The 2600/DeCSS case has been going on for a year and a half and still isn't over. This one is likely to drag out even more. Even if Prof. Felten, his associates, and USENIX win all the relief they seek, chances are high that the RIAA, SDMI or at least one of the other defendants will appeal -- and keep appealing all the way to the U.S. Supreme Court.
For more info, read the EFF Press Release