Apple Filed A Silly, Questionable DMCA Notice On A Tweeted iPhone Encryption Key… Before Backing Down

from the copyright? dept

Copyright continues to serve its purpose as a tool for censorship, it seems. This week there was some hubbub over Apple’s highly questionable decision to send a DMCA takedown notice over a tweet by a security researcher who goes by “Siguza,” and who appeared to publish an iPhone encryption key on Twitter:

Twitter took it down upon receipt of the takedown notice, but later put it back after Apple rescinded the takedown — either realizing that the takedown was bogus or futile (or, I guess, both).

You can understand (sorta) why Apple would want to protect the key, but copyright seems like exactly the wrong tool for the job. Of course, that’s often the case, but copyright is such an easy tool to abuse to try to silence speech that it is often the preferred tool of would-be censors. This is just one example. But it does raise questions. Is an encryption key even copyright-eligible? That seems highly unlikely. Copyright only is supposed to apply to the creative elements of a work, and it would be difficult to argue that an encryption key meets the “creative” level necessary. US courts have already decided that phone numbers are not subject to copyright (even made up numbers), so it seems unlikely that an encryption key would pass muster for getting a copyright.

Potentially Apple could have been making a DMCA 1201 “anti-circumvention” argument as well — but even that seems silly, and only highlights the problems of the anti-circumvention provisions of Section 1201 of the DMCA. When a single tweet with a single code is seen as “circumvention” then there’s a big problem — and that problem is the law.

It’s good that Apple backed down on this, though it still highlights the problems of the DMCA takedown process, and how it can be used unfairly for censorship — even if that “censorship” completely backfired this time.

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Companies: apple, twitter

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Comments on “Apple Filed A Silly, Questionable DMCA Notice On A Tweeted iPhone Encryption Key… Before Backing Down”

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Anonymous Coward says:


The Universal City Studios, Inc. v. Reimerdes case over DeCSS, which was appealed in the second circuit (thus creating precedent in that circuit, but only history for other circuits), but did not reach the Supreme Court.

Decrypting the DMCA: Fair Use as a Defense to the Distribution of DeCSS a law scholar paper on Fair Use vs DMCA 1201 cases. While it quotes a congressional comment to the effect that "the DMCA was not intended to prevent a DVD owner from using (eg) DeCSS on that DVD", but many laws have been written that did not do precisely what congress intended them to do.

The Future of Ideas an essay (or book?) by Laurence Lessig on copyright.

Anonymous Coward says:

Re: Backgrounder

Sorry, one more comment on Reimerdes…

It was decided in 2000, and includes this gem:

"As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers." And later: " the expressive aspect appears to be minimal when compared to its functional component."

While the ruling went on to assume in favor of 1st amendment protection, they then went on into "fire in a crowded theater" arguments: "In determining the constitutionality of governmental restriction on speech, courts traditionally have balanced the public interest in the restriction against the public interest in the kind of speech at issue."

The Fair Use and first amendment arguments might well be due for another airing. However, you’ll want to do it in some circuit other than the second, unless you plan on rolling the dice hoping that the Supreme Court will pick up the issue without having a circuit split to justify it.

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