May 06, 2007
As Wins Microsoft, So too the AACS-Key-Posters?

Reading the Supreme Court's decision in Microsoft v. AT&T, I wonder whether that case can be read as an argument against liability for those who posted the infamous key number to Digg and elsewhere.

The Supreme Court was reviewing a claim against Microsoft for sending software abroad to users who installed it on machines which, if they were in the U.S., would apparently infringe an AT&T speech-processing patent. The Court makes much of the distinction between source and object code, and the steps between intangible program and execution. These fuel its determination that Microsoft's "intangible" Windows software cannot be a "component of a patented invention" and therefore that Microsoft is not liable for inducing infringement by exporting a master disk.

Abstract software code is an idea without physical embodiment, and as such, it does not match §271(f)'s categorization: 'components' amenable to 'combination.'... A blueprint may contain precise instructions for the construction and combination of the components of a patented device, but it is not itself a combinable component of that device.

The Court even cites Corley, but to say that Congress can act upon gaps in earlier statutes, not that it necessarily reaches complete solutions to new problems.

So, can we read MS v. AT&T as casting doubt on the assumption that a hex key is a "component or part" of a circumvention "technology, product, service, [or] device" (the key language of the §1201 prohibition on trafficking in circumvention tools)? By itself, this number doesn't circumvent, and there's not even a drop-in program with which one could readily use it to circumvent. And the posters supply no tangible copies of the number, but only a "blueprint" for making your own. At this stage, it's merely abstract information that might be, but isn't being, implemented in circumvention devices.

If it works for Microsoft, why not for the key-posters?

Posted by Wendy at May 06, 2007 05:32 AM | TrackBack
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