09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0
“09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0” is the 128-bit hexadecimal key for unlocking HD-DVDs. It became infamous around May of 2007 when the code was posted on Digg.com, a news site. Digg received requests from the AACS to remove all articles referring to the code since they claimed it violated the DMCA. Digg complied, but in a move the would make 2600: A Hacker Quarterly proud, the users revolted by posting countless articles about the code. They posted the articles faster than Digg could remove them, and finally Digg caved and stopped deleting the articles (http://blog.digg.com/?p=74).
The AACS LA went beyond trying to stop Digg from posting the code, they even tried to get search engines like Google to stop linking to the key. A Google search currently brings up 432,000 pages with “09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0”.
This is of course strongly reminds us of DeCSS, but is it really the same? DeCSS is software that can be used to bypass the CSS used on DVD’s. But here, we simply have a hexadecimal code without the code being implemented into software. Despite the AACS LA claims, this appears to be more related to Sega Enterprises, Ltd. V. Accolade, Inc. than DeCSS except for the mass distribution of the code.
1201(a)(2)
(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
While DeCSS is considered “technology” within the meaning of the statute, a single hex key is more difficult to call “technology”.
1 – CSS Effectively Controls Access to Copyrighted Works
In DeCSS the CSS “effectively controls access” for DVDs, and likewise AACS performs the same access control for HD-DVD’s. They state that the CSS keys cannot lawfully be gotten except by entering into a license. Here it might not be so clear, because all the person did was watch changes in the memory during startup of the movie. Nothing was “hacked, cracked or even reverse engineered”.
2. DeCSS Was Designed Primarily to Circumvent CSS
While DeCSS was designed primarily to circumvent CSS, that does not appear to be a valid argument here. There is no software here as there was in DeCSS, it is just a key. The purpose isn’t to circumvent, since it is the main key used by the HD-DVD players. If there was software using the key to circumvent it might be different, but the key alone does not seem to be enough to be considered circumvention.
C. Linking to Sites Offering DeCSS
In DeCSS they were linking to pages where the software could be downloaded. But here it isn’t software that needs to be hosted, just a single key that can be typed in any website. A Google search brings up 432,000 pages with “09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0”. According to the AACS LA all of those pages are in violation of the DMCA even though they aren’t linking to any code or software.
III. The First Amendment
Here there may be a better argument for First Amendment rights. The key is not a large piece of computer code that may or may not fall under the First Amendment, it is a single key that can easily be posted on any website by anyway. Many of the news articles the AACS LA wanted removed from Digg were simply users who had no understanding of how to use the key posting the key in the comments, or posting it in images.
I could find no evidence that the AACS LA actually followed through with its DMCA threats against sites that contained the key.