[WikiEN-l] That random number

[Tim Starling]

Oskar Sigvardsson wrote:
> On 5/6/07, Tim Starling <tstarling at wikimedia.org> wrote:
>> The DMCA does not prohibit publication, it prohibits "trafficking". The
>> MPAA vs Corely case held that publication on a website constitutes
>> trafficking, and this was upheld at appeal. The Act specifies damages of
>> $200-$2500 per "act of circumvention, device, product, component, offer,
>> or performance of service". Presumably every time someone downloads the
>> number from the mailing list archive, and every time we send it to someone
>> by email, this constitues trafficking of such a device.
>>
>> WikiEN-L has 878 members, so sending the key to the list would create a
>> liability of between $175,600 and $2.2M, plus archive downloads and what not.
>>
>> -- Tim Starling
> 
> I just want something clarified. If I understand it correctly, before
> the AACS people sue, they have to send a DMCA takedown notice, right?
> And then they can sue if we don't comply?
> 
> Why not just take it easy for a while and leave the archives intact,
> and if they do send a takedown notice, then we comply.

No, that's for copyright violation. Doesn't anyone follow links? From "09
f9: A Legal Primer":

"What about the DMCA safe harbors? While no court has ruled on the issue,
AACS-LA will almost certainly argue that the DMCA safe harbors do not
protect online service providers who host or link to the key (the AACS-LA
takedown letters do not invoke the DMCA "notice-and-takedown" provisions,
nor do they include the required elements for such a takedown, thereby
signaling the AACS-LA position on this). The DMCA safe harbors apply to
liabilities arising from "infringement of copyright." Several courts have
suggested that trafficking in circumvention tools is not "copyright
infringement," but a separate violation of a "para-copyright" provision.

"It's difficult to say how a court would rule on this question, but it
does create a specter of monetary liability for hosting providers, even if
they otherwise comply with the "notice-and-takedown" procedures required
by the DMCA safe harbors. "

http://www.eff.org/deeplinks/archives/005229.php

-- Tim Starling