Hal Finney wrote:
>> My question to the assembled: are cryptographic
keys really subject to
>> DMCA subject to takedown requests? I suspect they
are not
>> copyrightable under the criterion from the phone
directory
>> precedent.
>
> A sample demand letter from the AACS Licensing
Authority appears at:
>
> h
ttp://www.chillingeffects.org/notice.cgi?sID=03218
>
>>From what I can see, there is no claim that the key
is copyrighted.
> Rather, the letter refers to the provisions of the DMCA
which govern
> circumvention of technological protection measures. It
demands that
> the key be taken down in order to avoid "legal
liability".
>
> This seems odd to me because my understanding of the
DMCA's
> anti-circumvention provisions is that they are criminal
rather than civil
> law. Violations would lead to charges from legal
authority and not from a
> copyright owner. So it's not clear that AACSLA has any
power to enforce
> these demands, other than trying to get some government
agency involved.
>
> The letter specifically cites 17 USC 1201(a)2 and (b)1,
which can be read
> here:
>
> http://cyber.law.harvard.edu/openlaw/DVD/1201.html#a2
>
>From an explanation of the justification for the take
down notices:
http://www.out-law.c
om/page-8022
Fred von Lohman, an attorney at the Electronic Frontier
Foundation,
said in his blog that sites which carry the code or links
to it are
unlikely to be able to use a traditional defence of 'safe
harbor'.
"While no court has ruled on the issue, AACS will
almost certainly
argue that the DMCA safe harbors do not protect online
service
providers who host or link to the key," he said.
"The DMCA safe
harbors apply to liabilities arising from 'infringement of
copyright.'
Several courts have suggested that trafficking in
circumvention tools
is not 'copyright infringement,' but a separate violation
of a
'para-copyright' provision."
"The AACS takedown letter is not claiming that the
key is
copyrightable, but rather that it is (or is a component
of) a
circumvention technology," said von Lohman. "The
DMCA does not require
that a circumvention technology be, itself, copyrightable
to enjoy
protection."
One would think that the recent SCOTUS findings in Microsoft
v. AT&T
would demonstrate that intangibiles such as software (and
perhaps large
integers) were not components or parts thereof, unless in
place in a
"device":
http://www.webster.com/cgi-bin/di
ctionary?sourceid=Mozilla-search&va=device
f : a piece of equipment or a mechanism designed to serve
a special
purpose or perform a special function <an electronic
device>
>From http://cyber.law.harvard.edu/openlaw/DVD/1201.html#a2
17 USC 1201:
(b) Additional Violations. -
(1) No person shall manufacture, import, offer to the
public,
provide, or otherwise traffic in any technology,
product,
service, device, component, or part thereof, that -
o (A) is primarily designed or produced for the
purpose of
circumventing protection afforded by a
technological measure
that effectively protects a right of a copyright
owner under
this title in a work or a portion thereof;
o (B) has only limited commercially significant
purpose or use
other than to circumvent protection afforded by
a
technological measure that effectively protects
a right of a
copyright owner under this title in a work or a
portion
thereof; or
o (C) is marketed by that person or another acting
in concert
with that person with that person's knowledge
for use in
circumventing protection afforded by a
technological measure
that effectively protects a right of a copyright
owner under
this title in a work or a portion thereof.
I'd strongly suspect that most if not all of the 2 million
hits would
not reveal "another acting in concert with that
person's knowledge".
While this instance is not indicative of a trend to the
lawyer
equivalent of judicial activism, I don't see any protection
under the
DMCA against distributing the Processing Keys as what
appears to be a
political statement (which could be held to be protected
speech).
(IANAL)
Freds blog entry: http
://www.eff.org/deeplinks/archives/005229.php
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