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

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

Posted May 3, 2007 11:47 UTC (Thu) by louie (subscriber, #3285)
In reply to: 'component, or part' of a circumvention device, almost certainly by ncm
Parent article: EFF: 09 f9: A Legal Primer

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.

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'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.