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SunnComm to Sue Halderman Over Critical Academic Report
Posted by Ernest Miller on Thursday, October 09 @ 15:37:52 EDT Digital Millennium Copyright Act
As noted earlier this week on LawMeme (New Audio CD DRM Defeated by Use of "SHIFT" Key), Alex Halderman, a computer science graduate student at Princeton wrote a report that found a new audio CD DRM system ineffective (Analysis of the MediaMax CD3 Copy-Prevention System). Now, the company that designed the DRM, SunnComm, intends to sue Halderman for, among other things, violation of the DMCA (SunnComm CEO Says Princeton Report Critical of its MediaMax CD Copy Management Technology Contains Erroneous Assumptions and Conclusions). I do not know what "device" Halderman could possibly have been trafficking in, unless they plan to go after him solely under section 1201(a) for actually circumventing an access-control device (a first as far as I know). According to SunnComm's CEO, "No matter what their credentials or rationale, it is wrong to use one's knowledge and the cover of academia to facilitate piracy and theft of digital property."

via Copyfight

UPDATED 1910 ET 9 Oct 03

Will SunnComm Actually Sue Under the DMCA?

Actually, upon reflection, I'm thinking that they won't. The lawsuit would be incredibly weak. In no way could a report be construed as trafficking in an anti-circumvention device under section 1201(a) or 1201(b) of the DMCA. The statute refers to "any technology, product, service, device, component, or part thereof." I don't see how a report could be construed as any of those things within the meaning of the statute.

As I noted above, that leaves the actual circumvention under 1201(a) as the only means to sue. I don't think that anyone has actually sued under the anti-circumvention provision of 1201(a) alone. Although the anti-circumvention provision of 1201(a) makes sense in a illicit access to cable TV sort of way, it doesn't make sense in this context. Moreover, it especially doesn't make sense from an academic research context. Thus, this would be a perfect test case to get the DMCA at least partially overturned.

Which leads me to conclude that the MPAA and RIAA will not allow a DMCA suit to go forward. To the extent that SunnComm relies on the good will of the RIAA and MPAA to make any money, they will agree.

But what about a pre-emptive countersuit? Unfortunately, like the Felten case before (see, USDOJ - Academics Have Nothing to Fear from DMCA), I think that SunnComm has left themselves a pretty good loophole. Rather than claim they will sue under the DMCA directly, they actually said, "SunnComm intends to refer this possible felony to authorities having jurisdiction over these matters." This is the out they need to avoid the "actual case or controversy" element needed to bring a countersuit.

Against my better judgement, I would hope, however, that a court would take a generous view of jurisdiction in such an important free speech case.

PS - This doesn't mean that SunnComm won't sue under a trade secrets theory, or libel or something. Also, this is based on what little information we currently have.
See also,
bIPlog
EFF
Slashdot

Corrected 11 Oct 2003 - SunComm - SunnComm

 
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Re: SunComm to Sue Halderman Over Critical Academic Report (Score: 0)
by Anonymous on Thursday, October 09 @ 16:59:29 EDT
So when did "erroneous Assumptions and Conclusions" become against the law. Sounds like a Showdown between the first Amendment and the DMCA.


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THIS is why I quit censorware research! (Score: 1)
by Seth_Finkelstein on Thursday, October 09 @ 17:37:28 EDT
(User Info | Send a Message) http://sethf.com/
See my point? THIS is why I quit! [research.yale.edu] - Seth Finkelstein [sethf.com]


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Re: SunComm to Sue Halderman Over Critical Academic Report (Score: 0)
by Anonymous on Thursday, October 09 @ 18:31:04 EDT
Anyone can sue over any reason. What really matters is who prevails. Until this suit progresses, it tells us nothing about the DMCA or copyright protection issues.

My prediction is that the company will withdraw the lawsuit, or failing that, they will lose. Could we conclude from such an outcome that the DMCA is a good law which properly protects legitimate academic research?


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This is not an exploit (Score: 0)
by Anonymous on Thursday, October 09 @ 18:32:10 EDT
Shift is not an exploit. It disables auto-play in windows while it is held. A tech support rep told me about this when I was getting help with a win95 problem way back when I was 14.

I hold shift almost any time I insert a CD, because it is either a game, where I don't want to see the autoplay menu, or it is an music CD that likely has 'Enhanced CD' crap that auto-installs.

I don't believe he intended to 'facilitate piracy'. More likely he intended to mock the company for not thinking this through at all.

This is a windows 'feature', and it must be documented if a tech support script uses it.

MediaMax should apologize to customers and investors because of its ignorance. Shifting the blame is much easier, however.


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It's TECHNOLOGY, not DEVICE (Score: 1)
by Seth_Finkelstein on Thursday, October 09 @ 19:13:43 EDT
(User Info | Send a Message) http://sethf.com/
Research papers are arguably technology, not device. I've just written about this problem with DMCA and speech [sethf.com] and code == speech [sethf.com] - Seth Finkelstein [sethf.com]


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Circumvention is not just (Score: 1)
by Seth_Finkelstein on Thursday, October 09 @ 19:59:16 EDT
(User Info | Send a Message) http://sethf.com/
Here's the DeCSS case [eon.law.harvard.edu] reference I wanted, footnote #135:
FN135. In their Post-Trial Brief, defendants argue that "at least some of the members of Congress" understood § 1201 to be limited to conventional devices, specifically 'black boxes,' as opposed to computer code. Def. Post-Trial Mem. at 21. However, the statute is clear that it prohibits "any technology," not simply black boxes. 17 U.S.C. § 1201(a)(2) (emphasis added).


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Re: SunComm to Sue Halderman Over Critical Academic Report (Score: 0)
by Anonymous on Thursday, October 09 @ 22:36:39 EDT
But its not really the "shift key' that is at issue. Its really the MS automount function. Prior to this new use, the automount function had circumvention code to prevent automatic playback/execution of a CD on mounting.

Now that automount is being used as a delivery means for an access control, that pre-existing circumvention method becomes a way to circumvent an access control that protects a right of the copyright holder.

While the automount function itself continues to have a commercially significant noninfringing use, is not primarily designed for circumvention, and is not distributed with the intent to circumvent access controls, the paper itself could be construed to have that intent to circumvent and/or be primarily designed to circumvent a copyright access control.

This exposes not only the constitutional weakness of the DMCA, but also how poorly drafted the law was. Of course, the law was probably intentionally drafted ambigously to mask the severe constitutional infrimities as long as possible.

This would be a heck of a civil case if it ever happens.

By the way, I doubt this would be a criminal case. Especially after the fiasco with ElcomSoft, proving the intent element for a criminal DMCA violation would be incredibly difficult, especially given a Princeton graduate CS student and student of Ed Felton, who wrote this paper within his area of study. Such a strong argument of good faith makes the prosecution's burden almost impassable, so long as Judge Whyte's (ND Cal) interpretation of the intent requirement from ElcomSoft is consistently applied in other jurisdictions. The cases where they get criminal DMCA convictions are the cable black box cases. This, on the other hand, really makes a poor test case.

In addition, given the IP criminal guidelines for enforcement from a few years ago, it seems like this case lacks most of the elements that would favor criminal prosecution. Now I don't claim to have any special knowledge on this matter, and the federal government's enforcement strategies are sometimes incomprehensible -- but this just doesn't seem, as a matter of instinct, like the type of case the DOJ or an IP/cyberlaw oriented AUSA would take on.

-doogieh


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