May 09, 2007

My AACS Encryption Key Controversy _Guardian_ column

AACS Encryption Key Controversy article:,,2075530,00.html

"What freedoms will we incinerate to protect a business model?"

I go through the history of these sorts of controversies, attempting to place this one in context from the strong-cryptography debate involving Pretty-Good-Privacy (PGP) and RSA encryption, to the predecessor DVD DeCSS lawsuit (as well as doing my small - very small - part to correct some myths which have grown up around them).

Then I try to convey the "paracopyright" problem, that copyright has spawned a kind of "Official Secrets Act" regarding access control systems,

I also attempt to explain what's going on in terms of the DMCA legal reasoning, but I'm not sure I'll make much headway there.

By Seth Finkelstein | posted in dmca | on May 09, 2007 07:33 PM (Infothought permalink)
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Although in practice DMCA is abused to assert all and any control of information in the public's hands, it is supposed to only shore up the TPMs in their protection of copyright infringement.

If you are wealthy and can afford the lawyers, the DMCA does not prevent non-infringing use of a copyrighted work.

The DMCA does prohibit circumvention of TPMs for which the primary purpose is infringement.

In the case of keys used by HD-DVDs, these do not circumvent the TPMs but are involved in decrypting the contents of the DVD for playback - a wholly non-infringing purpose - and a process that has to be performed in order to view the DVD.

These keys are provided on the DVD player and the disks, both devices being in the possession of the viewer, including the information thereon. They may not be easy to discern, but they are nevertheless available upon detailed inspection.

The keys are not subject to copyright - not being original works. Nor has the purchaser signed any non-disclosure agreement concerning them.

What is effectively happening then, is simply that legitimate purchasers of DVD players and media are exchanging notes concerning the keys they have discerned. This presumably then enables them to view the DVDs on Linux PCs.

No-one is betraying anyone's secrets. No TPMs are being circumvented. No copyright infringement is occurring.

Posted by: Crosbie Fitch at May 10, 2007 04:25 AM

Crosbie, sadly much of what you say above is an opinion not shared by judges ruling on these cases.
In fact, you've made exactly the argument which *lost* in the DeCSS case.

Posted by: Seth Finkelstein at May 10, 2007 08:32 AM

Yes, I should have added a caveat that whatever the law says is only a guide when it comes to the day in court, what matters is its interpretation.

And as you know, having also had a glimpse of the total perspective vortex, our interpretations of the law register on the legal seismometer with as much force as the footsteps of a flea.

But then the law is supposed to encode the will of the people...

How many Lilliputian proletarians does it take to counter the interpretational persuasions of a plutocrat the size of Bill Gates?

We have an entire planet of people.
Persuasion is possible.
Peer to peer.

Posted by: Crosbie Fitch at May 10, 2007 09:26 AM

I don't read the Guardian much, so I have to ask: Is their technology section conceived to be targeted to a highly tech-savvy audience?

I ask because I've noticed in your columns that the presentation is typically more inside-baseball than the standard newspaper story. For instance, in the column at hand, there are straight-up references to things like "Digg" and "RSA" -- without the boilerplate explainers that would normally accompany such. ("Digg, a popular community website where users rank stories... .")

Posted by: Tom at May 12, 2007 09:28 AM

Tom, yes, this appears in their Technology supplement, so it is rather more targeted to that tech audience. The editor didn't balk at the RSA and Digg references, so I assume they were at least OK in context. I have had drafts for other columns rejected/need-rewrite for too much jargon. I try to be aware of the issue, but sometimes there's so much I want to say about a topic that I forget those explainers.

Posted by: Seth Finkelstein at May 12, 2007 07:03 PM