David Gerard wrote:
On 04/05/07, Delirium <delirium(a)hackish.org>
wrote:
The 2600 decision, according to the text of the
decision, was almost
entirely based on the fact that 2600 was explicitly "trafficking" in
circumvention tools, since it was pretty much a "hey download this tool
here!" type of link. The court took great pains to note that any sort
of academic or educational discussion of circumvention tools would be
protected. Basically 2600 didn't even pretend to have a veneer of
academic discussion, so it was a completely different case; if _Wired_
were taken to court and lost, that would be much more similar to our
situation. In fact in the years since the 2600 case, many dozens of
people have published such keys and circumvention devices in academic
and educational contexts, and none has lost a court case.
None has lost one - has any been put through one?
Not on DMCA grounds, to my knowledge. The RIAA, MPAA, DVD-CCA, and
similar groups have been extremely afraid of bringing any more for fear
of the 2600 case's chilling effects being weakened. The 2600 case was a
best-case scenario for them: The party they were suing made no even
half-assed attempt to be educational, explicitly and openly posted the
tool *as* a circumvention device, and probably worst of all subtitled
themselves "The Hacker Quarterly". Basically the only way to go with a
follow-up case is down. The RIAA and SDMI did famously threaten
[[Edward Felten]] with a lawsuit for publishing details on how to break
SDMI, but rapidly backtracked so far that they ended up actually arguing
in court that Felten *wasn't* violating the DMCA, to avoid the
possibility of the DMCA being litigated.
A few cases on trade-secret grounds have been brought, with the
defendents prevailing on the defense that something posted a million
times on the internet cannot be a trade secret. Andrew Brunner is the
most notable one of those.
-Mark