The Electronic Frontier Foundation has decided to drop a high-profile suit against the recording industry, saying that it will trust, for the time being, the industry's claim that it does not intend to "squelch science."
The EFF sued the Recording Industry Association of America last June on behalf of Ed Felten, a Princeton professor who claimed that his research into the weaknesses of digital watermarking technology had been threatened by the industry.
But in November, a federal judge in Trenton, New Jersey, dismissed the EFF's case, siding with the RIAA's argument that it had never intended to pursue any action against Felten.
Now the EFF says it will take the industry at its word that it did not want to silence Felten or any other scientists. "But it's not like we're going away," cautioned Cindy Cohn, the foundation's legal director. "It's not like we won't be there if they try to interfere with scientific process anymore. So maybe Ronald Reagan's old quote, 'Trust, but verify,' is a good way to put it."
When the EFF's case was dismissed last November, the group blamed it on the judge. In a press release, the EFF called U.S. District Judge Garrett Brown "plainly hostile," and it added that Brown had failed to address "important First Amendment considerations" about the case. The EFF vowed to appeal.
"I think there was a decent chance that the appeal would have been accepted," Cohn said on Wednesday, "because there were First Amendment rights at stake."
But because the researchers were "not professional litigants" and because, in EFF's view, the recording industry had essentially "won the case by losing it," the foundation saw no reason to continue with the case.
Cohn said: "They won their dismissal by saying, 'You win, Ed Felten.' They said, 'No, we didn't mean to threaten him.' So they won by giving us the victory, and that's a good thing for our clients."
Cohn added that it was a mistake to see this development as a loss for the EFF or, more generally, for foes of the Digital Millennium Copyright Act, the law that the recording industry had initially suggested Felten and his team were violating. Indeed, Cohn suggested that its case had been especially useful in clarifying the government's position on whether the DMCA might apply to scientific research.
That's because the Justice Department -- which the EFF had named in the suit -- filed a brief with the court arguing that Felten's research had never been threatened by the DMCA, because the researcher's purpose "is not to circumvent any access control measures, but rather to study, and to assist others in bolstering, those access controls."
The government concluded, "DMCA would not apply to their conduct, and any fear of an immediate prosecution would be unreasonable."
Cohn considered this clause a victory for the EFF. "The government is saying that the DMCA does not reach scientists when the goal is to make the security stronger, and that's a good position," she said.
Felten said he intends to continue with his research, and that he has no trouble taking the "recording industry at their word, because the court told us to do that."
"Certainly if something like this happens again, we'll do what we need to do to protect our speech rights," he added. "But the recording industry has said that they won't do that."
In a statement released after the EFF made its decision, RIAA vice president Cary Sherman said, "From the outset, this lawsuit was an effort by EFF to undermine the DMCA, not a genuine dispute over Professor Felten's work. We're pleased that both EFF and Professor Felten now accept what we said all along."
