Legislating Cyberlaws Often Just a Hypothetical Exercise.

THE trouble with being a cyber-libertarian is that you spend most of your time slaying hypothetical dragons.

Oddly enough, that task is more difficult than taking on the real thing.

Whenever someone introduces a new technology or proposes new regulations, the digital watchdogs squint into the future and imagine how these developments might possibly be used to harm Internet users. If they turn up anything troublesome, they start spreading the word and taking steps to intervene.

But they're faced with a daunting challenge: The problems they're worried about don't exist yet. So unless politicians or judges are willing to share in their ominous worldview, developments that merely threaten privacy, speech and other online rights are allowed to flourish until they actually do some serious damage.

Such was the problem facing opponents of the Digital Millennium Copyright Act, a 1998 federal law that granted a host of new rights to intellectual property holders. Researchers, free speech activists and others warned that the measure could stifle research, limit academic expression and erode "fair use" access to copyrighted works.

But movie studios, publishers and other powerful interests convinced Congress the law was needed to prevent unauthorized trade in digital copies of their movies, music recordings, software and other holdings. I guess the threat of hackers seemed more real to Congress than the hypothetical complaints of the bill's opponents.

It didn't take long before the companies that backed the DMCA made its opponents look like prophets.

Last year, the Motion Picture Association of America used the law to stop an online magazine from posting a program that could be used to decrypt DVD movies. Although the purpose of the DeCSS program was to play DVD movies on computers running Linux operating systems, the industry complained it also could allow users to make unauthorized copies of those movies.

That hypothetical threat turned out to be compelling. Even though the court agreed that 2600 Magazine hadn't violated anyone's copyright, the DMCA makes it illegal to offer the public a way to gain access to any copyrighted work that has been protected by data encryption. And that's exactly what DeCSS does -- it breaks DVD encryption so movies can be watched on a Linux box.

A federal judge forced 2600 Magazine to remove the program from its site and even blocked it from posting links to other sites that made the DeCSS program available. The magazine appealed the ruling with help from the Electronic Frontier Foundation, a cyber rights group. Their argument was heard May 1 by a panel of the 2nd District Court of Appeals.

Their appeal might be aided by a more recent and even more egregious use of the law. Last month, the record industry wielded the DCMA to strong-arm a professor into canceling an academic discussion of data-cracking techniques. In so doing, the law's supporters provided an example of its potential abuse that seems almost too dastardly to be true.

Princeton computer science professor Edward Felten and some of his students participated last year in "Hack SDMI," a contest designed to test the strength of an encryption scheme built by a music industry consortium called the Secure Digital Music Initiative. The SDMI "watermark" was supposed to stop people from making unauthorized copies of digital music files, but Felten and his students proved it was vulnerable.

Felten wrote an academic paper about he experience and was preparing to publish it when he received an ominous letter from a lawyer representing the Recording Industry Association of America. If he insisted on releasing the method he used to crack the watermark, the letter said, he could be prosecuted under the DCMA.

The professor decided late last month to cancel his presentation, perhaps partly because an unauthorized copy of his research already is being circulated online. But as reporters at the online magazines Inside and Salon have pointed out, Felten also provided evidence that the DCMA does indeed stifle academic speech -- a category of expression that courts usually take pains to protect.

So it seems opponents of the Digital Millennium Copyright Act were right. But since the proof arrived years after the bill became law, we'll have to let the courts decide if being right does them any good.