Friday, May 04, 2007

THE NUMBER and the law

I normally stay away from commenting, linking to, or otherwise getting involved when tsunami-class memes envelop the Internet. I'm talking, of course, about the AACS decryption key and the subsequent takedown notices associated with it. However, I did want to take the time to point to a post that deserves to be at the top of the pile.

09 f9: A Legal Primer from the Electronic Frontier Foundation (EFF) is succinct, readable, and provides a nice overview of the legal landscape associated with this firestorm. It's important because probably 90 percent of what's been posted about this assumes that the takedown notices are about copyright. However, as the EFF explains:

Is the key copyrightable? It doesn't matter. The AACS-LA takedown letter is not claiming that the key is copyrightable, but rather that it is (or is a component of) a circumvention technology. The DMCA does not require that a circumvention technology be, itself, copyrightable to enjoy protection.

The EFF also notes that:

The AACS-LA presumably would argue that the key is a "component" or "part" of a "technology" that circumvents AACS. Moreover, AACS-LA would likely argue that the key was "primarily ... produced" to circumvent AACS, that is has no other commercially significant purpose, and that it is being "marketed" for use in a circumvention technology. The takedown letters seem to take the position that both the poster and the hosting provider are engaged in "trafficking."

The AACS-LA will also doubtless point to the DMCA cases brought against 2600 magazine for posting the DeCSS code back in 2000 (EFF was counsel to the defendant). In that case, both the district court and court of appeals concluded that posting DeCSS to a website violated the DMCA.

In other words, you may disagree with the current state of US copyright law as embodied in the DMCA. You may think the the DeCSS (the encryption code for non-high def DVDs)case was wrongly decided. You may think that much of what the content producers do in attempts to protect their intellectual property is stupid and counter-productive. I'd agree with more than a little of that. However, as the EFF explains, the legal effort to quash the publication of this number may be vain but, as a matter of current law, it's probably on reasonable ground.

Which isn't to say that it should be.

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