Digg, AACS, and the Section 230 Safe Harbor

If Digg.com were sued by AACS under the Digital Millennium Copyright Act for trafficking in technology used to circumvent technological protection measures, might Digg defend itself successfully under Section 230 of the Communications Decency Act?  Does the answer depend on whether the AACS encryption scheme is a TPM that constitutes an “access control” rather than a “copy control”?  Some tentative thoughts after the jump.

Section 230 provides a defense to liability, that is, a so-called safe harbor, for an “interactive computer service” accused of being legally liable for content posted to that service by one of its users.  The most important application of Section 230 has been in the defamation context.  Usenet providers, for example, are not liable for allegedly defamatory Usenet posts.(The following sentence was added to the initial post, for clarity:)  In this case, Digg would be accused of a form of DMCA “trafficking” consisting of hosting content submitted by its users; if Digg were accused of defamation, Section 230 would apply.

Congress, however, specifically exempted “intellectual property” from the scope of Section 230.  The statute, at section 230(e)(2), reads:  “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”  In the recent Ninth Circuit opinion in Perfect 10 v. CCBill, the court ruled:  “In the absence of a definition from Congress, we construe the term ‘intellectual property’ to mean ‘federal intellectual property.'”  The court seized on the federal / state distinction.  In that case, Section 230 immunized CCBill from state-based IP claims. 

Does Section 230(e)(2) cover the anticircumvention and anti-trafficking provisions of the DMCA?  Section 1201 of Title 17, the statute in question, is obviously federal.  What about the question that the Perfect 10 court did not address?  Is the DMCA an intellectual property statute?

For its part, Digg might point to expansive readings of the DMCA, such as Judge Kaplan’s district court opinion in Universal City Studios v. Reimerdes, which characterized the CSS system that managed playback of DVDs as an access control regime, and that distinguished the DMCA’s statutory scheme from the Copyright Act.  In other words, some caselaw can be read as interpreting the DMCA to create property rights in “access” that exist independent of the Copyright Act.  The Copyright Act is federal intellectual property; the DMCA, arguably (and to the extent that it creates this right in “access”) is not.  DMCA coverage of “copy control” TPMs would be a different matter, since that section (1201(b)) addresses circumventing a TPM that “effectively protects a right of a copyright owner under this title in a work.” 

AACS (or, more precisely, the AACS Licensing Administrator) has two arguments.  First, it might argue that its encryption scheme is a copy control measure, not an access control measure.  Second, if it holds to the position that the scheme is an access control measure, it might point to narrower readings of the DMCA such as Chamberlain Group v. Skylink and Lexmark v. Static Control Components, which suggest that DMCA liability, even for access controlling TPMs, is derivative of the scope of copyright.  The Federal Circuit wrote in Chamberlain Group:

The essence of the DMCA’s anticircumvention provisions is that §§ 1201(a),(b) establish causes of action for liability. They do not establish a new property right. The DMCA’s text indicates that circumvention is not infringement, 17 U.S.C. § 1201(c)(1) (“Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”), and the statute’s structure makes the point even clearer. This distinction between property and liability is critical. Whereas copyrights, like patents, are property, liability protection from unauthorized circumvention merely creates a new cause of action under which a defendant may be liable.

Either way, therefore, the DMCA arguably is part of the federal copyright scheme, and part of the federal “intellectual property” that is excluded from Section 230 immunity.

Would Digg succeed?  My initial instinct is to be skeptical of the argument that I’ve sketched.  Still, an aggressive and creative lawyer might make something of it.  There is, one might say, “traditional” federal intellectual property, and then there is “new” stuff.  Given the First Amendment implications that seem to be drawn into this situation — as Ed Felten has noted, when can it be said that a number is “owned”? — that lawyer might find wisdom in Justice Ginsburg’s opaque statement at the conclusion of Eldred v. Reno:  “[W]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

16 thoughts on “Digg, AACS, and the Section 230 Safe Harbor

  1. Mike — Good post — I agree.

    Just posted this on Ed Felten’s blog:
    ———

    Hi Ed —

    I understand how counter-intuitive it is, but there is actually some precedent out there for numbers as property:

    See
    http://terranova.blogs.com/terra_nova/2005/08/123321456787654.html

    Cf. this bit from Eben Moglen, which relies heavily on the “numbers can’t be property” intuition:

    “Like everything else in the digital world, music as seen by a CD player is mere numeric information; a particular recording of Beethoven’s Ninth Symphony recorded by Arturo Toscanini and the NBC Symphony Orchestra and Chorale is (to drop a few insignificant digits) 1276749873424, while Glenn Gould’s peculiarly perverse last recording of the Goldberg Variations is (similarly rather truncated) 767459083268.

    Oddly enough, these two numbers are “copyrighted.” This means, supposedly, that you can’t possess another copy of these numbers, once fixed in any physical form, unless you have licensed them. And you can’t turn 767459083268 into 2347895697 for your friends (thus correcting Gould’s ridiculous judgment about tempi) without making a “derivative work,” for which a license is necessary.

    At the same time, a similar optical storage disk contains another number, let us call it 7537489532. This one is an algorithm for linear programming of large systems with multiple constraints, useful for example if you want to make optimal use of your rolling stock in running a freight railroad. This number (in the U.S.) is “patented,” which means you cannot derive 7537489532 for yourself, or otherwise “practice the art” of the patent with respect to solving linear programming problems no matter how you came by the idea, including finding it out for yourself, unless you have a license from the number’s owner.

    Then there’s 9892454959483. This one is the source code for Microsoft Word. In addition to being “copyrighted,” this one is a trade secret. That means if you take this number from Microsoft and give it to anyone else you can be punished.

    Lastly, there’s 588832161316. It doesn’t do anything, it’s just the square of 767354. As far as I know, it isn’t owned by anybody under any of these rubrics. Yet.”

    Excerpted from this:
    http://emoglen.law.columbia.edu/my_pubs/anarchism.html (1999)

  2. Interesting idea. Perhaps § 230(e)(2)’s phrasing “pertaining to intellectual property” helps to resolve the issue. If this clause broadly applied to all intellectual property laws, then there might be a way to claim that the DMCA—which is more a form of paracopyright, supplemental to but not part of copyright itself—isn’t covered because it doesn’t give rise to IP rights in itself. But the “pertaining to” language seems broader, as though it seeks to cover laws that—like the DMCA—are an iteration removed from copyright itself. I’d like to see Digg be able to claim the exemption, but I think they’re probably out of luck.

    The broader notion of owning integers is indeed disturbing, but I’m not sure that’s what’s going on here. Copyright protects concatenations of alphanumeric strings all the time—that’s all a minimalist poem is, for example. Object code has been considered copyrightable for years, and that—while merely a series of 1s and 0s—doesn’t seem to raise too many hackles (presumably because those sequences are so long that no one fears locking them up will constrain creativity).

    And even if the DMCA applied to the AACS sequence, that would mean only that there would be liability to the extent that someone “trafficked” in it. So if I were engaging in some kind of high-level arithmetic (which is not terribly likely) and needed to use the number in writing about an equation, for example, that would likely be unaffected by the fact that the number is also an encryption key. This loops back to the original point of the post. If the DMCA gave rise to the Blackstonian ideal of a property right—total ownership of the access- or copy-control device—that might be more of a concern. But a tort claim that depends on use of a particular integer in a particular context seems to me a different animal altogether, and not as problematic.

  3. Digg can not claim safe harbor in this case, because Digg employs moderators that take down objectionable content based on their own judgment and editorial policy. It’s much different that a “safe harbor” situation, which only users can “report abuse” on their own to administrators, who then pull content if offensive, and otherwise leave everything alone on their site. Because Digg actively edits, they can be shown to be responsible for the encryption code’s publish act.

  4. I don’t buy the whole idea that some number are owned because they “represent” something that is copyrighted. Really, its rather arbitrary what number is used to represent something else.

    For example, consider the set of all musical compositions M (we’ll assume there are countably many though that isn’t quite true). Given any countable set C, (be it of numbers, letters, shapes, etc.) there is a mapping function f:M->C that is a one-to-one correspondence. Further, lets “fix” C to be the set of all integers. Let i be an arbitrary element of C and m an arbitrary element of M. Then there necessarily exists a mapping g:M->C such that g(m) = i and g is a one-to-one correspondence. Thus any musical composition m is represented by all integers since m and i were chosen arbitrarily. Further any element e from any countable set is represented by some element e2 of some arbitrary countable set.

    Basically, if you say that any number i is owned because it represents some copyrighted object o, then all numbers are owned because any of them could represent the object o. Whats really important are the “interpretations”/mapping functions of these numbers.

  5. The trouble with AACS-LA position is that an hex sequence may be anything :
    – Cryptographic hash or key
    For example, a fingerprint for a GPG key, an MD5 hash,…
    – Assembly code snippet. For example, in Z80, it could be :
    0000 09 ADD HL,BC
    0001 F9 LD SP,HL
    0002 11 02 9D LD DE,9D02

    Even if in this case it’s meaningless, it could mean something in a specific assembly langage… there are so many microprocessors and microcontrollers around that there is great probability that one of the licenced keys could give meaningful code in one of these assembly langage
    – IPv6 address
    Well, in fact, one of the many keys could be an IPv6 address already assigned…
    – ASCII/Unicode string
    Again, this specific key is *not* concerned but some may be…
    – A key mathematical, chemical, physical,… constant
    A cryptographic key may happen to be a key mathematical constant… there are so many of them… The most known are prime numbers but there are lots of other numbers (mersene numbers, factorials, …)

    Another point is that many of the posters did send messages without really knowing what that number is (no notion of cryptography or AACS). for them, it was not a circumvention device put a “protestation device” to fight censorship on the internet and the bullying done by RIAA/MPAA/DVDCCA/AACSTA/… They know that saying that number piss some company but they don’t really know why…

    The common sense should prevent any party to make claim on a number… Let’s say that I’ll make a cryptographic system and use 10 as cryptographic key to protect my content… then sue everyone publishing the number 10… the number used here is not as obvious but the meaning is the same…

  6. I would like to throw out some points and see what the legal experts here make of them.

    The short integer in question here has many common shared uses with other commercial and non-commerical computer software systems. The DMCA appears to grant an exemption for such cases.

    The AACS-LA previously revoked the short integer in question. They can not argue that Digg users caused or contributed to said revocation. They are now arguing about control over a short integer that they themselves have already conceded as a lost cause.

    In any case, does the DMCA continue to protect revoked short integers that are by the design of the protection system now supposed to stop working?

    In addition, apparently the cause of the disclosure of the AACS-LA’s use for the short integer in question was lack of reasonable measures to protect the short integer by an AACS-LA licensee.

    Apparently the short integer was left out in public memory on millions of personal computers and some number of owners whom were inspecting the contents of their personal computers memory stumbled upon the unprotected short integer.

    Is it not incumbent upon those wishing to maintain secret ownership, as in trade secrets, to take reasonable efforts to secure those items from public disclosure? And having been shown to have not taken reasonable care with their secrets do they not lose any claim to proprietary ownership of them?

    What level of lack of protection of their proprietary secrets does the DMCA provide a shield to? Can the AACS-LA publish the new short integer they have selected and sit back and expect the DMCA provisions to protect them? If not, did they provide sufficient protection in the case of the now revoked short integer?

  7. Corey — That’s not how Section 230 works.

    John, Denis — Right. AACS doesn’t really claim to “own” a number; AACS claims a legal right over the meaning of a number. The relevant precedent (the Reimerdes case), however, mostly rejects the idea of a First Amendment defense protecting a “protest” here, at least so far as the claim is made against the intermediary that intentionally distributed that meaning, rather than against the individual user.

    Scotty — Apples and oranges. The DMCA isn’t about trade secrets. Somewhat paradoxically, the DMCA offers protection against distribution of certain circumvention technology, even if that circumvention technology is well-known. AACS may or may not be a trade secret. Even if its trade secret status is lost, the DMCA claim is still potentially valid. Separately, does the fact that the short integer has been revoked mean that the DMCA claim vanishes, too? (The legal question would be this: Does the revoked short integer lose its status as “a technological measure that effectively controls access to a work”?) Perhaps, at least as to people who are currently republishing the number, and perhaps also as to people who republished the number following revocation. To my knowledge, however, there is no legal precedent applicable to that question.

  8. I think that Digg is making a much greater statement than just about article 230. Freedom of speech and the press were violated by these laws and the ways they are currently being interpreted. It’s time to revisit laws that violate our consitutional rights. It’s time to look at what free speech and freedom of the press really mean. It’s time to start taking back freedoms for which this nation was founded on. Whether Digg goes down or not will just prove this point further. The legalese “garbage” posted here will only server as a method to help defend them in an already broken system.

  9. I want to quote your post in my blog. It can?
    And you et an account on Twitter?

    [WORDPRESS HASHCASH] The poster sent us ‘0 which is not a hashcash value.

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