At 02:15 PM 5/2/2007 -0400, Perry E. Metzger wrote:
I would be interested in further legal
discussion of the DMCA's ability to control the publication of mere
cryptographic keys, and in further technical discussion of AACS
and similar DRM technologies.
(Links at the site, posted by EFF Senior IP Attorney Fred von Lohmann)
http://www.eff.org/deeplinks/archives/005229.php
09 f9: A Legal Primer
May 02, 2007
As was reported back in February, an enterprising hacker unearthed
and posted one of the decryption keys used by AACS to decode HD-DVD
movies (other keys and exploits have been made available in the weeks
since). Now the AACS-LA (the entity that licenses AACS to makers of
HD-DVD players) has set its lawyers on the futile mission of trying
to get every instance of at least one key (hint: it begins with 09
f9) removed from the Internet.
Predictably, this legal effort has backfired, resulting in eternal
Internet fame for the key in question. In addition to having been
posted on hundreds of thousands of web sites (and resulting in the
temporary shutdown of Digg.com), the key has already spawned a song,
a quiz, a domain name, and numerous T-shirts.
So now might be a good time to review a few of the basic legal issues
raised by the posting of the keys. (This is an overview of the legal
landscape, not legal advice, and I am not expressing any view about
how a case might come out if AACS-LA sued anyone.)
What is the AACS-LA's argument? In its takedown letters, the AACS-LA
claims that hosting the key violates the DMCA's ban on trafficking in
circumvention devices. The DMCA provides that:
No person shall ... offer to the public, provide, or otherwise
traffic in any technology, product, service, device, component, or
part thereof that that -
(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls
access to a work protected under this title;
(B) has only limited commercially significant purpose or use
other than to circumvent a technological measure that effectively
controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with
that person with that person's knowledge for use in circumventing a
technological measure that effectively controls access to a work
protected under this title.
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.
Who can sue over the posting of the key? The DMCA entitles anyone
injured by a violation to bring a civil lawsuit seeking damages
(including statutory damages ranging between $200 and $2500 for each
offer). In addition, if a person violates the DMCA willfully and
for purposes of commercial gain, a federal prosecutor could bring
criminal charges (with the famous exception of the Sklyarov case,
however, criminal prosecutions have generally been limited to
situations where the DMCA violation was also accompanied by evidence
of commercial piracy).
What about just linking to a place where the key is posted? The
courts in the DeCSS case wrestled with the proper test to apply when
someone links to a location where a circumvention tool can be found.
Ultimately, the district court held that an injunction against
linking could be issued after a final judgment if a the plaintiff
could show, by clear and convincing evidence,
that those responsible for the link (a) know at the relevant
time that the offending material is on the linked-to site, (b) know
that it is circumvention technology that may not lawfully be offered,
and (c) create or maintain the link for the purpose of disseminating
that technology.
The court of appeals upheld that ruling, while admitting that the
issue presented a difficult First Amendment question.
What about the DMCA safe harbors? While no court has ruled on the
issue, AACS-LA will almost certainly argue that the DMCA safe harbors
do not protect online service providers who host or link to the key
(the AACS-LA takedown letters do not invoke the DMCA
notice-and-takedown provisions, nor do they include the required
elements for such a takedown, thereby signaling the AACS-LA position
on this). The DMCA safe harbors apply to liabilities arising from
infringement of
