Comments on: numbers aren’t just numbers

By: Patrick

Patrick — Fri, 04 May 2007 01:21:39 +0000

Ah yes. The inevitable spectre of crushingly expensive frivolous litigation.
There are a great number of legal issues that are only resolvable at trial, and yet which don’t lead to constant litigation of marginal cases. This is because there are quite a few safeguards to prevent frivolous litigation from proceeding, and because legal standards and norms quickly arise which clarify what is and what is not acceptable behavior. Further, legitimate actors tend to have the motivation to make sure they’re not running afoul of the law in advance, so norms of behavior arise in their professions and communities.
Not to mention: How, precisely, do you expect that you will have produced the number for an actual legitimate purpose but in such a manner that an argument that your purpose was illegitimate is credible enough to get you through 12(b) motions to dismiss, through summary judgment, and into a trial?
When I say an actual legitimate purpose, I mean an ACTUAL legitimate purpose, as opposed to producing it for an illegitimate purpose while maintaining a shallow pretense of legitimacy because you were relying on legal advice from slashdot.

By: jim

jim — Thu, 03 May 2007 22:04:13 +0000

Patrick:
“That means that your intent is relevant.” True. But intent is determined at trial. Trial costs money. At the end of the trial, it has been determined that I didn’t produce the number for the purpose of circumventing. Great. I won. I’m still bankrupt.

By: Patrick

Patrick — Thu, 03 May 2007 21:02:47 +0000

“The line between using the number to circumvent a digital protection scheme is meaningless, as any use of the number, even referencing it in a scholarly article, could be deemed a violation of the DMCA.”
This is not the case. It only seems that way because so many people are trying to be smartasses and pointing out various ways they might “accidentally” mention the number without actually intending to distribute a means of circumventing the DMCA.
17 USCA 1201 reads, in part,
(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.
That’s only a small part of the federal code on this issue. But take a look. Note the “produced for the purpose of.” That means that your intent is relevant.

By: gz

gz — Thu, 03 May 2007 20:51:17 +0000

Jim, there could be 10 billion numbers such reserved numbers–and the chance of *anyone* in the world picking one randomly, even if that’s all they did, is still vanishingly small. Say 10^10 numbers, 10^10 people, picking one number every couple seconds (10^7/year) and it still will come up once every thousand years.
To translate it into your financial terms: the average burden that his law, with a say 10 million dollar fine attached, places on someone who did *nothing* but list 30 digit numbers his whole adult life would be well under a tenth of a cent. I just can’t see this as such an unreasonable risk that justice is offended.
Tom’s point is more relevant, though. Similarly, any word I’ve just typed in my post could be a password to some secure account. It would (often) be illegal to disseminate that word as a password, but in normal context using that same word is fine. This seems like a perfectly sensible arrangement to me, and no one claims someone “owns” that word. I don’t see how the key being a 30-digit number instead of an English word makes the setup illogical.

By: Jake

Jake — Thu, 03 May 2007 20:37:53 +0000

I agree with everything except that I note that using someone else’s trade secret is perfectly legal, as long as you don’t steal it or acquire it by otherwise unethical means–even if you get it by reverse engineering it. The DMCA is another matter, of course, as are various other IP-related laws.

By: JD

JD — Thu, 03 May 2007 20:24:14 +0000

I don’t know, it seems they are effectively claiming owership over a number. You can’t copyright it (too short), it’s not a trade secret because it is no longer secret, and patent protection won’t get you anywhere. The line between using the number to circumvent a digital protection scheme is meaningless, as any use of the number, even referencing it in a scholarly article, could be deemed a violation of the DMCA.
As for any data being reprensted by a number–sure, you can’t translate harry potter into numbers and then sell the book of numbers, because you are creating a derivative work based on something that has copyright protection. But that is not what is going on here.

By: jim

jim — Thu, 03 May 2007 20:20:57 +0000

gz:
Yes. The chance of picking a single 30 digit number is miniscule. The AACS has, though, “reserved” several million numbers. That chops a whole bunch of zeros off the likelihood of landing on one. The penalty for picking one is likely to end up in the six digit dollar range. Of course AACS is going to sue: you’re playing games with them; the likelihood you picked one of their numbers by chance is so tiny, it must be you know their numbers. Even so, I concede that the mathematical expectation of loss from printing a random 30 digit number in the context of an encryption key is a small fraction of a penny. You’re worse off buying a lottery ticket. But it is still the mathematical expectation of a loss. And a law that imposes an expectation of loss on everyone who writes about encryption is a bad law, particularly one that in no case does anyone any good.
Tom:
I understand that context matters. But some of us do talk about encryption and some of us do want to pick numbers as examples in that context. I originally trained as a pure mathematician before I turned to the dark side and worked on computers. And small numbers, numbers that I could conceive of writing down, were to me then like the air. Free to my use. Free to everyone else’s use, too. And now, in a context that I might want to use them, there are a set of small numbers that have been secretly fenced off: I may not use them in my chosen context; I may not even know what they are. And I do find that offensive.
You larger point is correct. Eben at the FSF used to say, perhaps still does, that since a novel or a piece of music can be represented by a number it shouldn’t be protected. But that number is so big and the context in which it represents the creative work so narrow, that we don’t in practice mind the infringement on our access to the integers.
But there is a conflict. Over time, the range of integers which could be considered “small” has expanded to include larger and larger numbers. The range of integers which represent protectable intellectual property has expanded to include smaller and smaller numbers. Sooner or later they would collide. The collision has occurred. What do we do about it?

By: Kurt GÃ¶del

Kurt GÃ¶del — Thu, 03 May 2007 19:49:32 +0000

I’ve been saying the same thing for years.

By: tom

tom — Thu, 03 May 2007 18:38:41 +0000

Jim, the point I was trying to make is that disallowed use of the number depends on the context of the use — not just on the mathematical identity of the number itself (or the way in which it’s represented).
The idea of “owning a number” is good rhetoric gambit, but it’s misleading (I suppose that’s why it’s good rhetoric). The question here is not ownership of intellectual property (which tends to be problematic, and is especially so in the case of a necessarily shared resource like an integer), but whether a particular piece of information can be redistributed for a particular purpose. In this case the answer is “no”.
Whether that information can be represented mathematically is irrelevant, since all information can be represented mathematically.

By: gz

gz — Thu, 03 May 2007 18:29:16 +0000

Jim, the “non-zero” risk of randomly pulling out a 30 digit number that matches a specific encryption key is 0.0000000000000000000000000001%. Described in other terms, if everyone in the world picked one such number every second, it still wouldn’t happen by chance before the sun explodes.
So I’m not sure re-designing laws to take into account the possibility of such an occurrence makes a whole lot of sense.