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SDMI Goes to School
By Eric de Fontenay (Founder & Publisher)
(more articles from this author)
2001-04-26
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The music industry has developed a reputation for attacking anyone perceived to be a threat, however minor, including manufacturers (Diamond), online companies (MP3.com), software developers (Napster), and now, academics. Princeton Professor Edward Felton received a letter from Matt Oppenheim, Secretary of the The SDMI Foundation and head of the RIAA anti-piracy division, regarding the professor's plans to publish the results of his research as a participant of the SDMI Public Challenge. For those who might not remember, the Challenge was an invitation to the computing community to 'crack' different watermark technologies being considered within the context of SDMI.

So it was a pleasure to be able to get the firsthand RIAA version of the story when Matt Oppenheim, sitting on a panel with me at the The Harvard Journal of Law & Technology's "All Shook Up: The Music Industry Confronts the Internet and Consolidation," was asked why he was now threatening the Princeton academic with a lawsuit. And through that exchange, I gained a better understanding of the conflict between the 'open' internet and 'closed' music industry.

Despite his objections that the letter did not threaten a lawsuit, the implications seem clear. "Unfortunately, the disclosure that you are contemplating could result in significantly broader consequences and could directly lead to the illegal distribution of copyrighted material. Such disclosure is not authorized in the Agreement, would constitute a violation of the Agreement and would subject your research team to enforcement actions under the DMCA and possibly other federal laws." The letter is basically informing Prof. Felton that he is in breach of his agreement with the SDMI Foundation and of federal laws, a notice that would be a logical prelude to a lawsuit. If that weren't clear enough, the letter goes on to repeat "In addition, because public disclosure of your research would be outside the limited authorization of the Agreement, you could be subject to enforcement actions under federal law, including the DMCA." I would call that a threat of 'enforcement actions under federal law', ie., lawsuit.

The crux of the problem though, explained Mr. Oppenheim, was that the professor was not playing by the rules. Those are the rules as established in the agreement covering the SDMI Public Challenge which barred participants from divulging the results of their research publicly. Most importantly, he kept coming back to the point that it was all being conducted under a peer-reviewed process, that the rules had been written and approved by his academic peers. But this demonstrates a total lack of understanding of the academic and peer-review process.

Academia is a lot like the Internet: you give away a lot of your intellectual property freely in the hopes of deriving benefit down the line. Academics make public weeks, months and years of work public through forums and journals for other, and often competing, researchers to examine, borrow and build upon. The entire point is to foster the dissemination of knowledge and submit it to the rigors of the community. Though a peer-review process, in the context of a journal or conference, does entail a relatively small groups of peers, this is only as a filtering process. The true peer-review process happens once the work is published or presented, at which point it is prodded, critiqued or supported by any member of the community wishing to make a contribution to the debate. So a sign of a good paper is the number of times it has been footnoted in other papers, ie., the more it has been peer-reviewed.

The SDMI Public Challenge on the other hand was the antithesis of a true peer-review process. The research was to be disclosed to a very small number of pre-selected peers acting as judges, not an open process where all and any peer could debate, not judge, research. This is analogous to subjecting researchers to a NDA (non disclosure agreement). Now this is not a problem if the academic is doing consulting work or testimony for some party. And they get paid very handsomely for keeping that work confidential. This was not the case with the Challenge, which was in relative terms, free work. In other words, the SDMI community wanted to exclusively benefit from the intellectual property of academic professors without compensating them the market value of that work, while depriving them of the benefit they could realize from the open academic forum. It's like an artist who gives up their master to a label only to find out that it won't be released, nor the rights to the master reverted back to the artist - a practice commonly known as "shelving."

To be fair, the letter does invite Prof. Felton to "engage SDMI in a constructive dialogue on how the academic aspects of your research can be shared without jeopardizing the commercial interests of the owners of the various technologies." This was repeated by Mr. Oppenheim on the panel. The fact remains, however, that had the SDMI Foundation really been serious about putting the technology to the test, they would have done what any other IT company does: hire a bunch of hackers to find the cracks and pay them well.


MATTHEW J. OPPENHEIM, ESQ.
RIAA

April 9, 2001

Professor Edward Felton
Department of Computer Science
Princeton University
Princeton, NY 08544

Dear Professor Felten,

We understand that in conjunction with the 4th International Information Hiding Workshop to be held April 25-29, 2001, you and your colleagues who participated in last year's Secure Digital Music Initiative ("SDMI") Public Challenge are planning to publicly release information concerning the technologies that were included in that challenge and certain methods you and your colleagues developed as part of your participation in the challenge. On behalf of the SDMI Foundation, I urge you to reconsider your intentions and to refrain from any public disclosure of confidential information derived from the Challenge and instead engage SDMI in a constructive dialogue on how the academic aspects of your research can be shared without jeopardizing the commercial interests of the owners of the various technologies.

As you are aware, at least one of the technologies that was the subject of the Public Challenge, the Verance Watermark, is already in commercial use and the disclosure of any information that might assist others to remove this watermark would seriously jeopardize the technology and the content it protects.1 Other technologies that were part of the Challenge are either likewise in commercial use or could be could be utilized in this capacity in the near future. Therefore, any disclosure of information that would allow the defeat of those technologies would violate both the spirit and the terms of the Click-Through Agreement (the "Agreement"). In addition, any disclosure of information gained from participating in the Public Challenge would be outside the scope of activities permitted by the Agreement and could subject you and your research team to actions under the Digital Millennium Copyright Act ("DCMA").

1 The Verance Watermark is currently used for DVD-Audio and SDMI Phase I products and certain portions of that technology are trade secrets.

We appreciate your position, as articulated in the Frequently Asked Questions document, that the purpose of releasing your research is not designed to "help anyone impose or steal anything." Further more, you participation in the Challenge and your contemplated disclosure appears to be motivated by a desire to engage in scientific research that will ensure that SDMI does not deploy a flawed system. Unfortunately, the disclosure that you are contemplating could result in significantly broader consequences and could directly lead to the illegal distribution of copyrighted material. Such disclosure is not authorized in the Agreement, would constitute a violation of the Agreement and would subject your research team to enforcement actions under the DMCA and possibly other federal laws.

As you are aware, the Agreement covering the Public challenge narrowly authorizes participants to attack the limited number of music samples and files that were provided by SDMI. The specific purpose of providing these encoded files and for setting up the Challenge was to assist SDMI in determining which of the proposed technologies are best suited to protect content in Phase II products. The limited waiver of rights (including possible DMCA claims) that was contained in the Agreement specifically prohibits participants from attacking content protected by SDMI technologies outside the Public Challenge. If your research is released to the public this is exactly what could occur. In short, you would be facilitating and encouraging the attack of copyrighted content outside the limited boundaries of the Public Challenge and thus places you and your researchers in direct violation of the Agreement.

In addition, because public disclosure of your research would be outside the limited authorization of the Agreement, you could be subject to enforcement actions under federal law, including the DMCA. The Agreement specifically reserves any rights that proponents of the technology being attacked may have "under any applicable law, including, without limitation, the U.S. Digital Millennium Copyright Act, for any acts not expressly authorized by their Agreement." The Agreement simply does not "expressly authorize" participants to disclose information and research developed through participating in the Public challenge and such disclosure could be the subject of a DMCA action.

We recognize and appreciate your position, made clear throughout this process, that it is not your intention to engage in any illegal behavior or to otherwise jeopardize the legitimate commercial interests of others. We are concerned that your actions are outside the peer review process established by the Public Challenge and setup by engineers and other experts to ensure the academic integrity of this project. With these facts in mind, we invite you to work with the SDMI Foundation to find a way for you to share the academic components of your research while remaining true to your intention to not violate the law or the Agreement. In the meantime, we urge you to withdraw the paper submitted for the upcoming Information Hiding Workshop, assure that it is removed from the Workshop distribution materials and destroyed, and avoid a public discussion of confidential information.

Sincerely,

Matthew Oppenheim, Secretary
The SDMI Foundation

cc: Mr. Ira S. Moskowitz, Program Chair, Information Hiding Workshop, Naval Research Laboratory
Cpt. Douglas S. Rau, USN, Commanding Officer, Naval Research Laboratory
Mr. Howard Ende, General Counsel of Princeton
Mr. Edward Dobkin, Computer Science Department Head of Princeton


Linkography

All Shook Up - http://jolt.law.harvard.edu/symposium.html
SDMI - www.sdmi.org


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