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MS Kerberos assault – Slashdot's defence avenues

The Good Dr Lea puts forward some helpful hints

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Microsoft's Kerberos letter to Slashdot was sent from its "designated agent" JK Weston, but he's no cloak-and-dagger man. The US Digital Millennium Copyright Act requires a designated agent to be appointed, which Microsoft appears to have done, and the details to be filed with the Copyright Office at the Library of Congress. The DMCA implements the provisions of the WIPO treaties that the US signed in 1996.

The Online Copyright Infringement Liability Act, passed at the same time, clarifies the legal liability of ISPs for copyright infringement and creates safe harbours to make it possible for ISPs to escape copyright liability claims in certain circumstances, such as when they act like common carriers - which Slashdot does not, in the sense of having editorial control over its content.

One remedy might be for Slashdot to provide hyperlinks to a web site outside the US that had the information that Microsoft wants suppressed, but to remove the alleged offending content from its own site. The European Union Copyright Directive does not cover the liability by online service providers.

The DMCA does prohibit measures to circumvent security features like encryption or an anti-copying feature, but it is lawful for security measures to be circumvented if the sole purpose is to identify and analyse the interoperability aspects - but here's a possible catch - only if this does not involve the infringement of copyright. But since Microsoft is not trying to stop disclosure, but merely to impose licence conditions, then in the absence of some judge-made law, the risk of an unfavourable outcome and adverse publicity of any case might well result in Microsoft baring its teeth but slinking away from a fight.

Slashdot could alternatively argue that the reverse engineering for interoperability and security testing provisions of the DMCA justifies what has happened, because making it possible for developers to improve interoperability and for Microsoft's Kerberos security provisions to be tested.

As for why Microsoft wanted to protect its Kerberos extension, one reason is probably that it is another anti-Unix move. Kerberos was developed at MIT as an open standard, with the source code for Unix and Windows being released and the standard being administered by the Internet Engineering Task Force. Microsoft's trick in its extension was to make it possible for Windows access to Unix with Kerberos - but not the other way round of course. Microsoft claims the extension is a trade secret, but this is unlikely to help Microsoft since there is now no secret, and the details will always be available in some corner of the Internet. It is unlikely that Microsoft would wish to wave its EULA in court, as it is far from certain that it would prevail - particularly outside the US where unfair terms in contracts are treated more seriously.

Despite the ".ORG" that Slashdot uses, it would not be able to take advantage of additional legal protection available to certain not-for-profit bodies. Slashdot was acquired by Andover.Net last June, and there was an IPO in December. In February it was announced that VA Linux was acquiring Andover.Net for what would then have been around $1 billion. ®

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