Peter Davies, Felten, DMCA liability

John Palfrey has some interesting reports about the goings-on at the Oxford Internet Institute. I found the following report of particular interest:

Second session: Peter Davies, an very impressive ex-industry lawyer who's a fellow here at OII, reviewed the Felten case. He made the very good point that IP issues have become dominated by more hyperbole than serious debate. Mr Davies and I disagreed, however, about the impact of the DMCA anti-circumvention on research. There have been multiple research projects that we've decided not to pursue or to publish, despite our belief that the information would be useful, because of our fear that the method of garnering the information could expose us to DMCA liability. The counter-point: that we wouldn't really get sued and that there's not so much to be worried about. Maybe so.

I've seen this argument many times. In fact, it's a good example of what I just discussed as stage one of the three stages of a free-speech lawsuit - "You won't get sued". For how I tend to reply, see my old blog entry about the "chicken little" copyright argument:

I have a standard offer for lawyers who write things such as the "chicken littles" paragraph above. I say: Since, according to you, there is no risk, well then, there should be no problem at all for you to agree to represent me pro bono for any relevant charges arising from my censorware work. No risk, right? So there's no risk in your making such agreement, right? Here's how you can show you believe it yourself, when there's a risk to you!

I have yet to find a lawyer, who makes derisive comments like that quoted remark, who will then take me up on that offer. ...

I was going to segue into one of my stories about lawyers telling me there was no risk to something, when it suited their advocacy position. But a quick search turned up the Peter Davies IP paper! (I love the Internet, this is why I spent so much effort in my life to try to keep it free and open). The key passage is:

I find this David and Goliath picture somewhat unconvincing because, as I said, it was Professor Felten who sued the Record industry and not the other way around, secondly there are clear exceptions permitting use of works for educational and research purposes, and thirdly, a few minutes' research on the Internet into these controversial cases reveals an astonishing volume of vitriolic comment and organised campaigning against the rightholders.

Now, I know I should be veddy polite, but it's going to take me a page just to go through in this paragraph. From the top...

Felten who sued the Record industry and not the other way around

This is improper moral equivalencing between a lawsuit assuring the ability to publish, and a lawsuit threatening the ability to publish. If the Felten lawyers had won, all that would have happened is that the RIAA would not have been able to sue the various researchers for publishing. If the RIAA had sued, all the "David"s would immediately have to deal with years of PERSONAL legal liability. The sentence above seems to require that one take no defensive legal measures when threatened.

clear exceptions permitting use of works for educational and research purposes

It's unclear if this means traditional copyright fair use, or the narrow DMCA exceptions. I think from the phrasing it's the former, but I'll deal with both. Traditional copyright fair use is not a defense to the DMCA. This has been repeated in many decisions, references if needed. The DMCA exception for "(g) Encryption Research" is a horribly complex and convoluted tangle, which is not at all clear. And hardly the basis from which to deny all potential liability.

thirdly, a few minutes' research on the Internet into these controversial cases reveals an astonishing volume of vitriolic comment and organised campaigning against the rightholders.

Let me see if I understand this clause - the vitriolic comment contributes to NOT being David and Goliath? Wouldn't a David and Goliath situation quite naturally generate vitriolic comment? (I can just hear a Monty Python type skit "Can't be vitriolic, you know, David. It's not done to be angry. The proper response to facing Goliath is a stiff upper lip. That will go a long way to showing how you're truly overmatched") As to "organised campaigning against the rightholders", well, as I write this, the techie news is filled with reaction against perhaps the largest subpoena carpet-bombing ever seen - certainly the largest that nonlawyers have ever seen. And some of that comment is extremely vitriolic.

Again, that's detailing one paragraph, and I'm tired already. I'm unable to convey the emotion of seeing the potential for years of devastating litigation, so airily dismissed.

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)