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: > > http://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.com/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/dictionary?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 --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to [EMAIL PROTECTED]
