HD DVD Key: A Legal Primer

The EFF has finally weighed in on the HD DVD key affair with 09 F9: A Primer. The relevant part is near the end, and it's not good news for anyone having fun with the whole thing.

Is the key copyrightable? It doesn't matter. The AACS-LA takedown letter is not claiming that the key is copyrightable, but rather that it is
(or is a component of) a circumvention technology. The DMCA does not require that a circumvention technology be, itself, copyrightable to enjoy protection.

What about just linking to a place where the key is posted?
The courts in the DeCSS case wrestled with the proper test to apply when someone links to a location where a circumvention tool can be found. Ultimately, the district court held that an injunction against linking could be issued after a final judgment if a the plaintiff could show, by clear and convincing evidence,

"that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b)
know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology."