09 f9: A Legal Primer … or … What is the AACS-LA’s Legal argument?

The AACS-LA made some news yesterday. Read about some of it here, here, and here, as well as the following from the EFF Deep Links section:

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.

Read it all.

“the key is a “component” or “part” of a “technology” that circumvents AACS.”
Questionable, as the key is freely readable in plain text residing in your computer’s RAM when you insert a HD-DVD or Blu-Ray Disk.

“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 key was “primarily … produced” to playback legally obtained and owned HD content. It was later discovered sitting in RAM with no obfuscation whatsoever, from there it was copied and pasted to various documents around the tubes of the internet. It was “Produced” by the AACS.

So if you have no Ads and make no money posting the number … the question becomes, “Is the number actually marketed?”

“both the poster and the hosting provider are engaged in “trafficking.”

Again as the key was not properly implemented to begin with, this point would be moot.

But the precedent lies with the content providers from past decisions, and it’s doubtful that a court would side against them in this case.

My question is, is yesterday’s impromptu “DRM Revolt” just the tip of the civil disobedience iceberg?

Advertisements