February 26, 2003: Features

The tech protector

Professor Ed Felten fights for the “freedom to tinker” in Congress and the courts

By Jeffrey Klineman

Five years ago, the U.S. Justice Department needed a lead technical witness in its antitrust case against Microsoft Corporation. It chose Ed Felten, then a 35-year-old Princeton assistant computer science professor, an expert in computer security and cryptography, and a whiz at manipulating programming codes.

Using a videotaped demonstration, Felten explained how he had tinkered with Microsoft’s programming to separate its Internet Explorer Web browser from its Windows 98 operating system, bolstering an essential government argument: that the two applications could indeed operate independently, and that the corporate giant had linked them to restrict competition.

For Felten, the case was a wakeup call. It taught him that computer systems are not always written because someone wants a precise, elegant program – and that economics is as important as code. “If you get an education in computer science, for the most part you have not traditionally been taught about how industry works; you have been taught about software and about the design of computers from a sort of abstract, analytical perspective, a ‘let’s design the best possible system’ worldview,” he says. “Although people in industry think about that, it’s not really what drives them to do what they do.”

Since that case, Felten has launched a high-profile, sometimes humorous, sometimes litigious campaign to get his fellow computer scientists, and the general public, more interested in Congress’s regulation of digital technology. Proponents of such regulation say it’s needed to protect copyrighted material and preserve the incentive to innovate. But Felten and others believe Congress’s approach actually could stifle innovation by scientists, raise prices for consumers, and – in the end – fail to offer the protection legislators desire.

Two years ago, he mounted a highly publicized struggle with the recording industry. Last year, he studied cyberlaw at Stanford University’s Center for Internet and Society. His most recent target was the Consumer Broadband and Digital Television Promotion Act, proposed in Congress last session, which would have required manufacturers to add anticopying devices to computer hardware and software, with the goal of preventing unauthorized duplication of copyrighted material. Felten helped derail the bill by demonstrating that it was so broad that it would affect not only general-use computers, but anything using a digital recorder – such as a robot dog and a machine that simulates the sounds of flatulence.

“I think there are some very important things happening at the boundaries of computer science, law, and economics,” Felten says, “and there aren’t enough computer scientists involved.”

Inside the computer science building at 35 Olden Street, Felten’s office is a mess. A year-old accumulation of documents, mail, packages, and CD-ROMs spills over the edge of a long table. A whiteboard holds random doodles, stray equations, and a scrawled list of family members. Cases of old Girl Scout cookies occupy a chair near the door. A flat-screen monitor stands atop a pair of telephone books. Things are not orderly.

But to Felten, neither is the process of inquiry and discovery. He sums up his philosophy this way: “Freedom to Tinker.” He is writing a book on the topic, and maintains a Web log, Freedom-to-Tinker.com, with ideas on technology, media, and copyright.

Felten says he supports effective protection of intellectual property, but that the laws he is fighting prevent tinkering, and would make much of his work illegal. The problem, he says, is that they make it illegal to alter or design technology that might affect the programs intended to safeguard those materials. Much of the work of computer scientists involves experimenting on that very technology.

“An awful lot of invention happens because of people messing around with stuff,” he says. “If you read a textbook about science or engineering, it presents a view that everything advanced in a fairly logical way from the beginning. It leaves out the tremendous amount of exploration, blind alleys, and messing around that actually got you there.”

Other computer scientists are on his side. “If I want to go into the garage and take apart the lawnmower, I am legally able to do that,” says Gene Spafford, a Purdue University computer science professor who helped inspire Felten’s involvement in the public process. “If I want to pick some things up at the hardware store and see what I can make out of them, I can do that. If I want to sit down at the keyboard and play with some software, to tinker with it, to see what happens, I should be able to do that . . . But [these laws] prohibit or legislate on the technology, not on the property. It means that I can’t try new things, I can’t tinker, I can’t experiment.”

A Cal Tech physics graduate who received his doctorate from the University of Washington in computer science and engineering, Felten came to Princeton in 1993. He has long been interested in the “human side” of computers; with his collegues, Felten, the codirector of Princeton’s Secure Internet Programming Laboratory, discovered security flaws in Internet software and pinpointed threats to personal privacy on the Web. This spring, he is teaching Information Technology and the Law, a cross-disciplinary class that will deal with issues such as identity theft, Internet governance, privacy, and copyright.

Felten first found himself in the public spotlight as the government’s witness in the Microsoft case, when he uncoupled Explorer and Windows. During the trial, he likened Explorer to a useful screwdriver, but complained that Microsoft had taken “the next step of gluing the screwdriver in my hand.”

“I don’t think there is any useful reason to glue a screwdriver to my hand,” he told the judge.

“It’s not like he was a hard-core Microsoft hater,” says Jeffrey Blattner, at the time a Justice Department special counsel for information technology and now a partner at the D.C. law firm Hogan & Hartson. “He was an academic expert who was asked to look at a series of very important technical issues, and he was able to reach a judgment and explain it in simple and compelling terms. He was an excellent witness on cross-examination. Unshakable.”

Soon, Felten was in the spotlight again. The Digital Millennium Copyright Act (D.M.C.A.), enacted in 1998, made it illegal – with limited exceptions – to alter copyright protection technologies such as encryption. Two years later, nearly 200 media companies sponsored the Secure Digital Music Initiative (S.D.M.I.), an effort to develop a technology, “digital watermarking,” that they believed might prevent consumers from illegally copying music. Thinking they had developed a secure system, the S.D.M.I. offered $10,000 to anyone who could bypass it.

Felten’s team did — in three weeks. Its purpose had never been to gain the prize, but to study the S.D.M.I. watermarking system. The team planned to present a paper on the topic at a conference in January 2001, but shortly before it was to take place, Felten received a warning from the Recording Industry Association of America. If researchers presented the paper, the group said, they might be sued under the D.M.C.A.

Felten responded by filing a lawsuit against the recording industry and the Justice Department, claiming that the D.M.C.A. unconstitutionally limited his First Amendment right to publish the paper. He asked that the law be overturned. Ultimately, the industry backed down. Felten presented his paper – months later than originally planned – and a judge dismissed his suit.

Most recently, Felten battled against the Consumer Broadband and Digital Television Promotion Act, proposed by Senator Ernest F. (Fritz) Hollings [D—South Carolina]. To lampoon the bill, Felten added “Fritz’s Hit List” to his “freedom to tinker” Web log, listing devices that would be affected by the bill. It encouraged readers to “Fight Piracy! Regulate Robot Pets!” in the case of the Sony-manufactured Aibo robot dog, and to “Fight Piracy! Regulate Singing Fish Novelties!” in the case of Big Mouth Billy Bass, a staple of late-night cable ads.

“Nothing demystifies a bad idea more quickly than humor,” says Peter Jaszi, an American University law professor who studies copyright and intellectual property. Hollings’s bill died in committee, although it may be brought back this year.

Felten’s critics say he and others miss the point of the proposed regulation. “They’ve mischaracterized it dramatically,” says Andy Davis, a spokesman for Hollings. Davis explains that Hollings intended the bill to spark an agreement between high-tech companies and copyright holders about how best to protect copyrighted material, which would spur demand for broadband and digital technology.

“The content community won’t make their products and services available online because there is massive copyright intrusion,” Davis says. “We’re at a standstill. He [Hollings] is trying to examine how you balance fair-use rights with copyrights, and how you get these two industries working to resolve the problem. It’s not to regulate the bass fish.”

Says Jack Valenti, head of the Motion Picture Association of America: “What does breaking the code have to do with research? Research for what? Are you researching cloning, or the laws of physics? We’re not dealing with Boyle’s Law here . . . we’re dealing with trying to protect a piece of property, a feature film, from being illegally stolen.”

But admirers say Felten and others like him already have had a dramatic influence on the way in which issues of intellectual property are debated and decided.

Jaszi notes that even though Felten’s attempt to overturn the D.M.C.A. failed, innovators gained from the effort. “It showed (content companies) that there are real risks to them and their policies in overreaching, and that their frequently employed technique of threatening actions to discourage conduct cannot be employed with impunity,” he says.

“You basically couldn’t ask central casting to come up with a more sympathetic character” than Felten, says law professor Jonathan Zittrain, a founder of Harvard Law School’s Berkman Center for Internet and Society. “The suit showed the research dimension that might be in conflict with desires by content publishers and others to lock things up and keep people from inspecting the lock.

“He can say, ‘This is my bread and butter. I’m employed by Princeton; this is what I do.’”

Jeffrey Klineman is a freelance writer living in Cambridge, Massachusetts.

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