When Mickey Mouse Goes Public

2002 B.C. Intell. Prop. & Tech. F. 110701
The Felten Case: Protective Security Measures of music recording v. The First Amendment

by Megan Kriegstein, Staff Writer

It took only an offer of $10,000 and three weeks to defeat the copyright protection technology of online music samples, shake-up the recording industry, and raise key questions of freedom of speech under the First Amendment. In the fall of 2000, the Recording Industry Association of America ("RIAA") issued the Hack SDMI Challenge, offering a reward of $10,000 to anyone who could bypass its new encryption technology, the digital watermark. The new technology was in response to the proliferation of online music copying through the use of services like Napster, which demonstrated the weakness of the music industry’s encryption technology.

Edward Felten, Associate Professor of Computer Science at Princeton University, along with his team of researchers, accepted the RIAA’s challenge. Barely three weeks later, the team successfully defeated the digital watermarks, demonstrating their continuing vulnerability. However, instead of taking the $10,000 prize, Felten and his team of researchers decided to publish their results. If Felten and his team published their findings, the new encryption technology would be rendered useless. Therefore, the RIAA decided to use a new tool to prevent the publication: the Digital Millennium Copyright Act ("DMCA").

In April 2001, RIAA threatened to sue Felten and his researchers, stating that the publishing of would subject them to enforcement actions under DMCA, which prohibits the dissemination of anti-circumvention technology. The potential of DMCA sanctions—damages and criminal liability of fines up to $500,000 and imprisonment up to five years--caused Felten and his fellow researchers to temporarily withdraw the research from publication. In response to this threat, a group of volunteer attorneys from the Electronic Frontier Foundation ("EFF") assisted Felten in filing a claim, Felten v. Recording Industry Association of America, CV-01-2669, in New Jersey district court, saying that DMCA threatened the growth of scientific innovation in the United States. They argued that prohibiting the publication and presentation of this and any related research violated Felten’s First Amendment rights under the United States Constitution. The RIAA moved to dismiss the case, allowing Felten to publish his results as long as it reviewed the results beforehand. The researchers agreed and the case settled and was dismissed. As of February 2002, EFF has stated that it has no plans to appeal the case. However, still lingering are issues of how a court may rule on the DMCA in the future, particularly whether these and other provisions of the DMCA come into direct conflict with the First Amendment.