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May 06, 2007


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Earl Stevens

A very thoughtful in interesting point, which generated these thoughts:

* I think it is relevant that, when thinking about trademarking words and colors, context is very important. With respect to the Qualitex case, I suspect that if someone was to apply the trademarked color to a cereal box, Qualitex would not complain. Furthermore, if Qualitex were to bring a suit, I suspect that the ruling would not come down in their favor, but I do not really know anything about legal interpretation, so I am purely speculating. What's relevant here is that it's not even necessary for AACS LA to trademark the use of this particular number. What they are concerned with is the combination of that number along with a reference to the fact that it is related to their encryption scheme. I can't imagine that they would have any issue with any real "use" of the number, unless it was presented in such a context. This analogy does not extend well to your Exxon example.

* I think you are mistaken when characterizing the position against DRM protection on HD-DVD as a general moral argument against copy protection. Granted, many people who actively pirate copyrighted material, and who were probably heavily involved with the Digg campaign, are probably not particularly concerned with copy rights to begin with. However, I think there is a legitimate concern here, and that is that, to date, DRM schemes for digital media have been technical failures. Many of the audio CD DRM schemes that have been introduced have had the unfortunate side effect of rendering CDs unable of playing in all standard CD players. Almost all DRM schemes have the consequence of no longer allowing the user to make personal use copies, for transport, backup purposes, etc. Granted, this privilege is also often abused with regard to digital content. The real complaint is that much of this "crippling" of the content occurs without any meaningful notification to customers. The customer who has been buying CDs for fifteen years should have the confidence of purchasing any CD and trusting that it will play in any regular CD player. In the sense of serving the customer's needs, many of applications of DRM have been disingenuously executed, and I believe that is the complaint.

Doug Lay

The moral argument isn't about the right to watch a film. It's about the right to control what we do with our own computers. To many of us, the right to program our computers as we see fit is an intrinsic component of free speech.


Thanks for elaborating on your post last week. My comments on that last post were largely aimed at the feasibility of enforcing the DMCA claims at issue. In the face of a large-scale revolt like this one, having the law on your side isn't much help.

You may wonder whether civil disobedience is appropriate or justified here, and what it's based on (moral right to fair use? infringement? speech?). But to me what matters is that lots and lots of people drew a line in the sand. Most people would agree with the right to protect films from free riders and infringers. The law might also let you claim 16 digit number, and to keep it unpublished. But the internet interposes the powerful ability for people to decide for themselves when such a claim becomes unacceptable. Perhaps the AACS will fight back, even against this multitude. They've said they will.

Whatever happens, I don't think the dialogue is unwelcome or inappropriate. It's necessary if we are to figure out how we treat sites like Digg and YouTube in the wake of the storm. What do they do when compliance with the DMCA becomes exceedingly difficult or impossible? Does the site have to kill itself to comply? If millions of mouthpieces are all in violation do we have to wait until the appropriate filtering technology is in place and can determine, in real time, what can be said and what cannot?

I think some balancing is in order.


Prof. Picker,

Insightful and interesting comments as always. I just wanted to point out that the "no va" story is merely a popular, yet untrue, urban legend:



I'm with Earl Stevens on this: "What they are concerned with is the combination of that number along with a reference to the fact that it is related to their encryption scheme."

The business about owning a number is spurious and it baffles me what led Felten down that road. It is its presentation as part of a means of circumvention that matters.

This leaves me curious about the nature of the take-down letter and the statutory authority that was claimed for the letter: http://blog.digg.com/?p=73

Randy Picker

In looking at the comments, I noted that I inverted the initial math calculation. It isn't 32 to the 16th power; it is 16 to the 32nd power (or, equivalently, 2 to the 128th power). That means that the number of possible keys is much larger than I was suggesting (3.4 x 10^38 rather than 1.2 x 10^24) and that means that the loss of expressive space if AACS LA claims millions of keys is that much smaller, though it was vanishingly small before.

Doug Lay

This could be relevant:

T. H. Breen. The Marketplace of Revolution: How Consumer Politics Shaped American Independence. New York: Oxford University Press. 2004. Pp. xviii, 380. $30.00.


"What [AACS LA is] concerned with is the combination of that number along with a reference to the fact that it is related to their encryption scheme."


If the AACS LA was concerned with the publication of the _fact_ that a particular number is related to their encryptation scheme, then they shouldn't have published that _fact_ themselves in the first place.

Once the AACSL published the _fact_, then they lost any credible claim of secrecy. Their subsequent attempt to use the force of government to restrict further publication of the _fact_ resembles a copyright claim. I say "resembles" because it's manifestly defective --even frivolous-- as a copyright claim.

Attempting to recast their claim as a trademark claim is even more ludicrous. At it's core, trademark law regulates deceptive speech in a commercial context: It prohibits falsely passing your goods in commerce off as the goods of another. Whatever your views on the exact status of false, misleading or deceptive commercial speech, Congress does have an anchor in the Commerce clause for federal trademark law.

But the real crux of the AACS LA complaint is that they really, really wanted to keep this number secret, but had to go ahead and publish it. Then they got steamed when someone else noted their voluntary publication of the _fact_.


I'd like to focus on the claim in both of Randy's very interesting posts that there are certain categories of laws that are simply inappropriate subjects of civil disobedience. Does this kind of categorical analysis work as a way of thinking about the appropriateness of civil disobedience as a theme in the Digg furore (and, earlier, with deCSS and 2600.com)?

To begin with, what would an unobjectionable object of CD be? I think we can agree that race-based restrictions on participation in public and social life would fit this category. Here I'm thinking of the kind of laws and practices that Gandhi and Martin Luther King resisted--segregated lunch counters or passenger trains.

On the other hand, the suggestion (both Randy's and Thoreau's) that laws effecting economic regulation are inapposite objects of CD. So a law that increases duties on banana imports, however much Chiquita and other growers don't like it, can never justify CD as a response, because it doesn't raise the moral problems of, e.g., racially discriminatory laws or social practices. The remedies in this setting have to be through normal democratic, not extra-democratic resistance.

The first point this raises is whether the distinction between laws with a strong moral overtone and laws that are purely economic works in general. Kelo illustrates the difficulty of this distinction. The redevelopment in that case was passed with solely economic goals in mind, but the parties affected (as well as the interest groups that helped make the case a national controversy) saw the matter in moral terms. The idea that takings are justly compensated does little to satisfy the property rights movement, because they see the act of taking as imbued with (im)moral overtones that can't be solved simply by a resource transfer.

But the fact that the distinction between laws with deep moral flaws and ones that merely implement an economic regulation doesn't work in all cases doesn't mean it isn't applicable here. Randy's position is that the restriction effected by the encryption key is nothing more than economic regulation, falling clearly into the latter category and thus inappropriate as a subject of civil disobedience. After all, makers don't have to release any content into the stream of commerce that they don't want to, so how is this any different?

In a way the answer is embedded in Randy's post when he invokes the First Amendment. Economic regulation generally doesn't affect speech, but some of it does and where it does courts often subject those regulations to higher scrutiny given the Constitution's speech protections. The effect of DRM and related restrictive licensing provisions may have largely economic aims--attempting to reduce piracy and protect all revenue streams--but it also has the effect of shutting down academic dialogue by precluding the ability to access source code, as well as restricting second-generation creative work such as remixes, mash-ups, and the like. These are unambiguously speech acts, and the effect of the DMCA on this kind of conduct takes it out of the realm of purely economic regulation and into the category of regulation that sufficiently implicates individual rights that makes it a possible object of civil disobedience.

I say "possible" object because the final question is whether the DMCA as applied in the AACS encryption key case actually restricts speech in a meaningful way. For many of the reasons mentioned in this post and elsewhere, I don't think it does, and so I think much of the Digg.com controversy was overblown. But I would stop short of saying that this kind of regulation is merely economic and thus purely divorced from the kind of individual rights concerns that we typically associate with laws that may warrant civil disobedience.

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