'component, or part' of a circumvention device, almost certainly [LWN.net]

'component, or part' of a circumvention device, almost certainly

Posted May 3, 2007 5:54 UTC (Thu) by ncm (subscriber, #165)
In reply to: 'component, or part' of a circumvention device, almost certainly by louie
Parent article: EFF: 09 f9: A Legal Primer

"technology, product, service, device, component, or part thereof"

A number is a number. A number is not a product. (Well, maybe this one is, because it's not prime, but never mind that.) A number is not a service. A number is not a device. A number is not a component. A number is not part of a component. The argument fails before you get to any of your three horns, because it isn't any of the things in that presumably exhaustive list of proscribed items. If Congress had meant to restrict distribution of numbers, they could have added that to the list, but they chose not to. If an unpleasant odor turned out to be useful in breaking somebody's DRM scheme, that wouldn't be covered either. Odors just ain't in the list, and neither are numbers.

They might reasonably use the DMCA to attack people distributing software that can use the number, but that's not what's under discussion here. It's an odious law composed by odious people, but we don't have to make it seem more odious than it is.

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'component, or part' of a circumvention device, almost certainly

Posted May 3, 2007 7:10 UTC (Thu) by tetromino (subscriber, #33846) [Link]

> A number is a number.

Credit card numbers, expiration dates, and PINs are numbers - but distributing those isn't exactly legal. In fact, any file is a finite sequence of bytes, and hence a number. By your logic, I could freely distribute files containing Vista source code, the private medical records of the residents of Minneapolis, and the current list of undercover FBI agents - because, after all, they are just very big numbers.

Somehow I suspect that a real-world judge might take objection to your line of argument.

'component, or part' of a circumvention device, almost certainly

Posted May 3, 2007 8:06 UTC (Thu) by cate (subscriber, #1359) [Link]

For the part private medical records of the residents of Minneapolis, I think it is because of privacy laws. And I don't think distribution of HD-DVD or they keys has something to do with privacy: the purpose of DVDs is to be distributed and to be shown.

The credit card number is more interesting. I think tat the owner, the shop and the bank cannot distribute the number, per contract. But IMHO, IANAL, if you distribute the credit card number (you break the contract), the other people (that obtained the number legally, they are not binded to your contract) can distribute it. But maybe also this is in some commerce, money, payment laws.

The laws are not so general as you think, so every new application give interesting results (both in interpretation of old laws and in the rules of new laws), until it stabilize in something intelligent.

'component, or part' of a circumvention device, almost certainly

Posted May 3, 2007 10:52 UTC (Thu) by kripkenstein (subscriber, #43281) [Link]

>> Credit card numbers, expiration dates, and PINs are numbers - but distributing those isn't exactly legal. In fact, any file is a finite sequence of bytes, and hence a number.

Of course you are technically right, any file is a number. But from a more practical point of view, let's say that the AACS number was "76" (which is certainly possible in theory). Surely to prevent websites from posting "76" makes no sense. On the other hand, posting the number representing an .mp3 file of a copyrighted song is different somehow.

The actual AACS number is somewhere in the middle, I would say. It is so short that it qualifies for what a (non-mathematician) judge would call a 'number'. A number representing an .mp3 file doesn't, it is only a 'number' to people like you and me.

The problem is that preventing people from saying "76" is just ridiculous. People _need_ to say that number in their normal lives. Perhaps the AACS number is not exactly that, but it is so short that certainly large portions of it are uttered in normal life. To restrict stating the AACS number is therefore dangerously close to restricting free speech. This risk is not present with .mp3 'numbers'.

In addition, you mention credit card numbers as things that are illegal to distribute. Well actually it is perfectly legal to distribute them, such distribution happens all the time when a waiter swipes a card at the table and carries the imprinted number to the cash register. What is not legal is to use them to steal the owner's money, and I presume the law has some clause wherein copying credit cards in bulk is 'with intent to steal' or something along those lines. Yet if a child copies their parent's credit card number, without permission, is this a crime BEFORE it is used to steal money? I'm not sure. And, importantly, regardless of the result here, this is completely different than the AACS number, which cannot be used to steal money - it *might* be used to infringe on copyright or circumvent anti-circumvention measures, but those are handled by completely different laws than credit card numbers. So these matters are not necessarily related, even though in both cases we have numbers (even of about the same length).

So, in summary, I am not sure how a judge would act, when ruling on this case. Perhaps the AACS-LA won't want to risk a negative judgment, which would have far worse consequences than the benefits of winning such a case (the number is already out there).

'component, or part' of a circumvention device, almost certainly

Posted May 3, 2007 11:47 UTC (Thu) by louie (subscriber, #3285) [Link]

A number is a number, sure, but a letter is a letter, a word is a word, and a piece of paper is a piece of paper, and all of them can become 'parts' of 'books.' This particular number is a number, but it is also a "part" of a "technology" (unless you think that the copy control system is magic and not a technology); it is "part" of a "device" (whatever xbox they ripped it out of); and it is "part" of a "product" (again, the xbox, which they sold for a nice sum of money.)

Later comments compare the number to a credit card number (where distributing it is presumably not illegal until it is used), but lets be clear- the DMCA makes it very illegal to distribute this number, period. It doesn't have a 'wait until it is used' clause, like a credit card law might. The law says very clearly, in very plain language, that it is illegal to 'offer to the public'. Doesn't have to be used by anyone- just offered.

Now, you could argue that you have a free speech defense about shouting the number from the rooftops; it seems unlikely to fly, because the number, by itself, is so useless, and so completely unlikely to be uttered in casual conversation. (It is 'short', as numbers go, but still long enough that I'm sure it would take a lot of monkeys a lot of time to type it out randomly.) So speaking it is much more akin to screaming fire in a crowded theater than most other speech acts. But if someone turns this into a Linux player ASAP, given the larger number of Linux users than there were in 2001, the industry's failure to create a licensed DVD player in that timespan, and the failure of the decss key to be involved substantially in piracy, you might get a more sympathetic ear on the free speech claim this time, and the ruling on the speech issue in 2600 suggests that if you can show that the government could reach their end (prevention of piracy) by 'less restrictive means', the court might rule otherwise. Seems unlikely, but it might not hurt to try again. If I have time later today, I'll try to re-read the first amendment section of 2600 and see how well it holds up over time- my guess is that it will not have aged gracefully but it'll be 'good enough' to bar a first amendment defense in this case.

More pragmatically, even though they'll almost certainly win a DMCA case, the AACS-LA folks now have to sue a bazillion people to put this cat back in the bag. That seems unlikely. I'm guessing they'll try to get the doom9 forums taken down, and to get Google to block searches on the number. But we'll see- should be interesting, strategically.

'component, or part' of a circumvention device, almost certainly

Posted May 3, 2007 22:40 UTC (Thu) by ncm (subscriber, #165) [Link]

A book is also not a technology, service, device, component, or part thereof. (It could be a product.)

Again, the DMCA is odious, but it is not omnipotent. It doesn't outlaw electrons, metals, RAM, or computers, despite that all of those may be involved in a circumvention, because that would have been recognized (even by congress members, or at least their staffs) as over-reaching. The MPAA might wish that numbers were included in the list, but they just aren't.

Was it an oversight, or a deliberate choice? It shouldn't matter, but if we can show a draft that included numbers (or language that would include them), that ought to be very persuasive even to somebody as stupidly hostile as your typical judge.

component or part of a circumvention device?

Posted May 3, 2007 21:24 UTC (Thu) by dark (subscriber, #8483) [Link]

Hmm. One problem is that it doesn't look like a number to the nontechnical. It looks more like a password. Perhaps we should have written it as 13256278887989457651018865901401704640 in the first place. This may be something to keep in mind in the future.