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April 23, 2004
Trusted Computing/DMCA v. Diebold's Pentagon Papers
Ernie breaks a great story about Jones Day suing the Oakland Tribune to take back the memos they wrote about Diebold's risky ventures in California over uncertified e-voting machines.
While Jones Day chose to use legal tools to restrain news reporting and Free Speech in this case, keep in mind that if we had Trusted Computing, Jones Day could have written the documents in a word processing application that required an attestation that the reader was authorized to access the documents before decrypting them.
If this was the case, the reporters at the Tribune would never have been able to read the documents even after they had acquired them because the application would not "trust" them to decrypt the contents. Unless, of course, they attempted to circumvent the attestation requirement and "hack" into the document, thereby invoking dangers under the DMCA.
When the Diebold email archive and memos were posted on the net by the Swarthmore students and others, Diebold sent DMCA take-down notices to shut down their speech. But there, the students were able to respond and repost the documents. They were able to claim fair use as a defense to the allegations that they infringed Diebold's copyrights in its internal memoranda and emails. With Trusted Computing and the DMCA, fair use is no defense. Under current law, circumvention of Trusted Computing and/or DRM is arguably a criminal and civil violation -- whether your purpose is to publish the Pentagon Papers or the Diebold Papers.
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