The Chilling Effects of the DMCA

This wasn’t the first time the DMCA had interfered with my security research. Back in 2001, my colleagues and I had had to withdraw a peer-reviewed paper about CD copy protection, because the Recording Industry Association of America and others were threatening legal action, claiming that our paper was a “circumvention technology” in violation of another section of the DMCA. Later we sued for the right to publish these results—and we did publish, four months later. We had won, but we had also learned firsthand about the uncertainty and chaos that legal threats can cause. I was impressed that some of my colleagues had been willing to risk their jobs for our work, but none of us wanted to relive the experience…
The good news is that this problem is easily fixed. Congress could amend the DMCA to create a robust safe harbor for legitimate research—not limited to encryption, not tied down with detailed requirements and limitations. There is a growing groundswell to address the DMCA’s ban on unlocking cellphones and its roadblocks to access for the disabled. Bills have been introduced in Congress to legalize cellphone unlocking. While we’re tinkering with the statute, let’s create a safe harbor for the researchers who can be our early warning system against unpleasant surprises in the next generation of technologies.

Edward Felten

Slate

March 29, 2013

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