Paul Levy on "shift key hack" and realistic DMCA lawsuit [ip][fs]

[Declan McCullagh <declan () well com>]

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Date: Thu, 09 Oct 2003 18:42:11 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <jstyre () earthlink net>, <dave () farber net>, <declan () well com>
Subject: Re: [IP] more on  Update on Shift Key Breaking CD Copy
        Protection Technology

SunComm has made two separate claims here.

One amounts to libel (damage to reputation); however, because the
company is a public figure, its contention that the student simply made
some incorrect assumptions, or should have inquired further, just
doesn't get them anywhere; they have to allege and prove actual malice.


The other is a DMCA claim.  All they say expressly in the matter quoted
is that they will "refer this possible felony to authorities having
jurisdiction over these matters."   OK, good for them.  The authorities
will no doubt exercise some prosecutorial discretion here.

Note that the nj.com article just has SunComm tsaying that their
lawyers will talk to his lawyers, yadda yadda yadda  Many times,
companies (and politicians) save face by talking about the legal action
they will pursue.  But actually filing a lawsuit may be something else.


Shhould a lawsuit be filed on these facts, perhaps it would become a
nice test case about whether the DMCA can proeperly be construed to
obliterate such a traditional form of fair use as publishing the whole
or a large segment of a protected work for the purpose of illustrating
or justifying a criticism of it.  Something tells me that wiser heads
will prevail about whether to file a lawsuit on this.

Should a lawsuit BE filed, I trust the grad student will have no
problem securing first-rate representation on a pro bono basis.

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