Digg.com and the AACS code, a legal perspective

The ABA Journal reported on the mass of postings on Digg.com last month of a 32 letter and number series which can be used to circumvent DRM in blu-ray and high-def. DVDs (you’ll need some software too) (this was posted elsewhere, I like the http://09-f9-(etc).com/ URL and the ThinkGeek t-shirt) A user would post, they would receive a cease-and-desist from the Advanced Access Content System (a trade group of entertainment companies), the administrators of Digg would remove the offending content, and then more users would post the code in response. This angered a number of power users on the system, and finally the administrators gave up. So, what is Digg’s liability: does the code fall under copyright (probably not), is this covered by the DMCA (likely so), did Digg give up their DMCA safe-harbor protections by not removing the content (ummm, yes and no), and does 47 USC § 230 give Digg any protection (it depends). Thank the gods, this is why I love the law.

Here is the ABA Journal story: It’s No Secret: Code Stirs Up a Web Storm. Eric Goldman, who is quickly becoming my favorite IP professor (too bad I don’t want to do an LLM at Santa Clara), also gives some analysis in the article.

Under the federal Digital Millennium Copyright Act, it’s unlawful to circumvent technology designed to protect copyrighted work. But the statute also provides a safe harbor for Web site operators in section 512 (c), when users make questionable posts.

“What’s unclear is whether the cease-and-desist notice was sent under 512 or some other rubric we don’t know about, and whether Digg.com, by refusing to honor the notice, lost its eligibility to be protected by safe harbors,” says Eric Goldman, an assistant professor at the Santa Clara University School of Law and director of the school’s High Tech Law Institute.

He also mentions another federal statute, passed in 1996, that provides expansive safe harbor from liability for third-party content. The statute, 47 USC § 230, holds that—providing the post in question doesn’t involve intellectual property—online providers can respond to a complaint however it wants.

So if the secret code is not intellectual property, Goldman says, Digg.com has no liability. But he stresses that continuing to allow the code posts is risky.

Viacom v. YouTube/Google: Google responds, argues free speech

I never expected to be checking the First Amendment category box on this case, but here it is. Full details of the press conference and free speech claim at  silicon.com, news.com, or zdnet, but the real meat is in the response Google filed with the court (pdf). Because it was a fun to read “Defendants deny the allegations . . . ” a hundred times outside of my job, I have decided to reprint it here. Also, Google lists a even dozen defenses, which is a fun read as well.

Here are the 12 defenses, the complete response is below:

DEFENSES

FIRST DEFENSE (DMCA SAFE HARBORS) – Plaintiffs’ claims are barred in whole or in part because Defendants are protected by one or more of the DMCA Safe Harbors in 17 U.S.C. § 512.

SECOND DEFENSE (LICENSE) – Plaintiffs’ claims are barred in whole or in part by licenses, express and implied, granted or authorized to be granted by Plaintiffs.

THIRD DEFENSE (FAIR USE) – Plaintiffs’ claims are barred in whole or in part by the doctrine of fair use.

FOURTH DEFENSE (FAILURE TO MITIGATE) – Plaintiffs’ claims are barred in whole or in part because Plaintiffs have failed to mitigate their damages, if any.

FIFTH DEFENSE (FAILURE TO STATE A CLAIM) – Plaintiffs’ allegations fail to state a claim for copyright infringement of any work not listed on Exhibit A of the Complaint.

SIXTH DEFENSE (INNOCENT INTENT) – Plaintiffs’ damages, if any, are limited by Defendants’ innocent intent.

SEVENTH DEFENSE (COPYRIGHT MISUSE) – Plaintiffs’ claims are barred in whole or in part by the doctrine of copyright misuse.

EIGHTH DEFENSE (ESTOPPEL) – Plaintiffs’ claims are barred in whole or in part by the doctrine of estoppel.

NINTH DEFENSE (WAIVER) – Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.

TENTH DEFENSE (UNCLEAN HANDS) – Plaintiffs’ claims are barred in whole or in part by the doctrine of unclean hands.

ELEVENTH DEFENSE (LACHES) – Plaintiffs’ claims are barred in whole or in part by the doctrine of laches.

TWELFTH DEFENSE (SUBSTANTIAL NON-INFRINGING USE) – Plaintiffs’ claims are barred in whole or in part based on the doctrine of substantial noninfringing use, although Defendants submit Plaintiffs bear the burden of proving the doctrine’s inapplicability.

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Who Owns the Unabomber Manifesto?

Kaczynski, the Unabomber, is arguing that the State’s selling his writings violates the exclusive right of distribution provided to him by copyright law. Secondarily, he argues that the copyright violation also triggers a free speech analysis. An interesting argument to be sure. More at Slate: Who owns the Unabomber’s writings? I would include the manifesto here, but it would violate someone’s copyright, and it is 35,000 words (100 pages in paperback form).

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