Declan McCullough wrote an editorial in which he reported that the DMCA doesn’t really threaten researchers and scientists. Instead, he claimed that the widespread fear of the DMCA originates with its opponents, primarily the EFF, who, for some reason that Declan doesn’t go into detail on, have decided to villify this bill and drum up a lot of sturm und drang about it.
This is, of course, ridiculous. Foreign researchers have arrested under the DMCA, foreign governments have issued advisories instructing their scientists not to travel to US conferences lest they be imprisoned, domestic researchers get threatening notices from record companies, and thesis advisors in Ph.D. programs have taken to advising their electric engineering doctoral candidates to choose their projects with care.
Ed Felten, Edward D. Lazowska (Co-chair, Computing Research Association, Government Affairs Committee) and Barbara Simons (Co-chair, ACM US Public Policy Committee) have written a letter in response, telling Declan exactly why they fear the DMCA:
First, the DMCA has two arms: one that prohibits devices that circumvent
copy protection, and one that prohibits acts of circumvention. The
research conducted by Professor Felten and his colleagues took place
prior to the time when the “acts of circumvention” provisions became
effective in October 2000. Thus, these provisions did not apply to that
research. However, there is little doubt in the legal community that
this research, and similar research, would be illegal under the “acts of
circumvention” provisions. Declan fails to recognize this arm of the
DMCA in his column.Second, the chilling effect of the DMCA cannot be described by the
probability of conviction alone. One must also consider the magnitude
of the exposure if convicted. Because the “acts of circumvention”
provisions of the DMCA were not in effect at the time of the Felten
research, the probability of an adverse judgment was indeed small.
However, a group of highly respected legal consultants told Felten’s
employer that the cost of an adverse judgment could be truly enormous.
The combination of these two factors had a very substantial chilling
effect. (It is also the case that two individuals were likely to lose
their jobs if the paper was published. This illustrates the human
dimension of the chilling effect.)