[DMCA-Activists] Re: Dmitry Sklyarov Book: "Hidden Keys", and Code == Speech

[Seth Finkelstein]

> Subject: [dvd-discuss] Skyarov Book
> Date: Thu, 15 Apr 2004 19:33:57 -0700
> From: address@hidden
> To: address@hidden
> 
> Dimitri Skyarov has written a book called "Hidden Keys to software
> break-ins and unauthorized entry"....Lib. of Computer Science
> bookclub has it as a selection...hope it gets a lot of sales.
> 
> It occurred to me that maybe the whole problem with the AEBPR was that they
> should have published the source code as a book and sold it as MIT press did
> with PGP. So...here's a question. If the courts have ruled (in Karn I
> believe) that a book is not subject to export restrictions (although the the
> DepDirNSA stated that this was true now but if OCR technology got better
> they might have to rethink that). So...what of a PDF file of the source
> code? What of a PDF file of the executable in UUCODE format? Cut and
> (binary) paste and it's over.

1) I thought of doing something similar to this with other material,
as a submitted legal paper for the recent Yale cybercrime conference.
I decided against pursuing it at all, because the potential personal
downside to me was enormous, while the upside was minimal to nonexistent.
[ See related http://sethf.com/infothought/blog/archives/000456.html ]

2) But you're confusing two different areas of the law. Export
regulations are not the same as the DMCA. It is not true that because
the courts have ruled one way in export regulations cases, about
national security law, that they have to rule the same way in any DMCA
case, about copyright-related law. In fact, one could work up an
argument now that average potential penalties for unauthorized music
sharing exceed the average potential penalties for espionage! (not
maximum, as I don't think copyright case have the death penalty - YET!
One more iteration of intellectual property law, though, and we just 
might get there. After all, if you can shoot a burglar for breaking
into your house, why not shoot a programmer for "breaking into" your
DRM? Which has more valuable "property" anyway? Perhaps I shouldn't
give anyone ideas).

        Anyway, memorize this footnote:

http://eon.law.harvard.edu/openlaw/DVD/NY/trial/op.html
 
"FN275. During the trial, Professor Touretzky of Carnegie Mellon
University, as noted above, convincingly demonstrated that computer
source and object code convey the same ideas as various other modes of
expression, including spoken language descriptions of the algorithm
embodied in the code. Tr. (Touretzky) at 1068-69; Ex. BBE, CCO, CCP,
CCQ. He drew from this the conclusion that the preliminary injunction
irrationally distinguished between the code, which was enjoined, and
other modes of expression that convey the same idea, which were not,
id., although of course he had no reason to be aware that the
injunction drew that line only because that was the limit of the
relief plaintiffs sought. With commendable candor, he readily admitted
that the implication of his view that the spoken language and computer
code versions were substantially similar was not necessarily that the
preliminary injunction was too broad; rather, the logic of his
position was that it was either too broad or too narrow. Id. at
1070-71. Once again, the question of a substantially broader
injunction need not be addressed here, as plaintiffs have not sought
broader relief."

        Elsewhere:

"Alternatively, even if such a categorical or definitional approach
were eschewed, the Court would uphold the application of the DMCA now
before it on the ground that this record establishes an imminent
threat of danger flowing from dissemination of DeCSS that far
outweighs the need for unfettered communication of that program. See
Landmark Communications, Inc. v.  Commonwealth of Virginia, 435
U.S. 829, 842-43, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978)."

-- 
Seth Finkelstein  Consulting Programmer  address@hidden  http://sethf.com
Interview: http://grep.law.harvard.edu/article.pl?sid=03/12/16/0526234
Seth Finkelstein's Infothought blog - http://sethf.com/infothought/blog/