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EFFector       Vol. 16, No. 13       May 14, 2003

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 252st Issue of EFFector:

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Electronic Frontier Foundation to Testify on Consumer Rights

Urges Copyright Office to OK Consumer Uses of CDs and DVDs

Los Angeles - The Electronic Frontier Foundation (EFF) will testify May 14-15, 2003, on requested exemptions to the Digital Millennium Copyright Act (DMCA) in public hearings before the Copyright Office of the Library of Congress (LoC). EFF will renew its request for the Copyright Office to recognize the rights of consumers to skip past commercials on DVDs, view DVDs sold only outside the U.S., and play copy-protected CDs on the players of their choice.

EFF Staff Attorney Gwen Hinze will testify, and EFF Staff Activist Ren Bucholz will assist.

EFF has long sought exemptions from the DMCA\'s prohibition on bypassing technological protections used to limit consumer use of DVDs and copy-protected CDs.

EFF will testify in support of the four exemptions it has proposed. EFF asked the LoC to create DMCA exemptions for four types of digital media:

  1. music on copy-protected CDs where malfunctioning copy-protection restrictions prevent playback
  2. movies on DVDs where region coding restrictions prevent playback on U.S. players
  3. movies on DVDs that prevent skipping of commercials
  4. movies in the public domain released on DVD

If granted, these exemptions will allow consumers to play music and movies that they\'ve lawfully obtained and make full use of public domain movies.

The entertainment industry encodes DVDs by the region in which they are sold in an attempt to control release and pricing of movies sold worldwide. Region 1 includes the United States.

"Many great films are available only outside the U.S.," said EFF Staff Attorney Gwen Hinze. "We urge the LoC to allow film buffs to play movies they\'ve legitimately purchased outside the U.S. without fear of breaking the law."

The recent distribution of "copy-protected" CDs has made some CDs unplayable on computer CD players. "The music industry\'s copy-protected CDs are completely unplayable in many PCs," said EFF Staff Activist Ren Bucholz. "When I buy a CD, I should be able to play it on all my CD players."

The LoC has called for comments as part of a triennial process of granting exemptions to the anti-circumvention provisions of the DMCA. Legislators charged the LoC and the U.S. Copyright Office with reviewing the effect of the anti-circumvention provisions on the public\'s ability to make non-infringing uses of copyrighted works secured by digital protection technologies.

This rulemaking procedure allows the LoC and the Copyright Office to grant limited three-year exemptions to the DMCA\'s blanket prohibition on bypassing technological protection measures. In that way, users could access particular classes of copyrighted works that are protected by digital protection mechanisms.

The hearings are divided into panels which will discuss exemptions for various types of works. EFF will testify on the following four panels:

Wednesday, May 14 (afternoon):

Panel 3 - Sound recordings and musical works on copy-protected audio CDs

Thursday, May 15 (all day):

Panel 1 - Unskippable promotional material on DVDs

Panel 2 - Public domain motion pictures released on DVDs

Panel 3 - Motion pictures released on region-coded DVDs

The hearings will run from 9:00 am to 5:00 pm on May 14 and May 15, 2003, in the Moot Court, Room 1310, on the first floor of the UCLA School of Law, 405 Hilgard Avenue, Los Angeles.

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San Francisco Court Considers Legality of Backup DVD Copies

Electronic Frontier Foundation Backs Up 321 Studios Software

San Francisco - On Thursday, May 15, a federal court will consider the legality of software that enables backup copying of digital video disks (DVDs).

Judge Illston of the Northern District of California Federal Court in San Francisco will hear arguments on a case involving 321 Studios\' DVD backup software. 321 Studios opposes a summary judgment motion from movie studios, claiming that the DVD backup software software is unlawful under the Digital Millennium Copyright Act (DMCA).

Championing the public\'s rights to use and innovate with media, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief supporting 321 Studios\' constitutional challenge to the DMCA. EFF, along with co-signers Public Knowledge and Computer Professionals for Social Responsibility, argues that tools such as 321\'s DVD X-Copy, which enables a user to make a personal backup copy or excerpt of a DVD, must be lawful because they are necessary to the public\'s fair use of digital media.

The movie studios on the other side of the 321 Studios lawsuit claim that DVD X-Copy -- and any hardware or software tools that would allow viewers to back up or extract snippets from DVDs -- is an unlawful circumvention device.

However, many people use DVD X-Copy for other purposes than copyright circumvention. Videographers are duplicating their work, professors are preparing classroom examples, and parents are creating backups for their children using DVD X-Copy and similar tools.

"The public should benefit from new media technologies, not find its rights further restricted when new formats are used," said EFF Staff Attorney Wendy Seltzer. "Software that enables the exercise of fair use rights, from any media, is an important part of the copyright balance."

321 Studios filed suit on April 23, 2002, against MGM Studios, Tristar Pictures, Columbia Pictures, Sony Pictures Entertainment, Time Warner Entertainment, Disney Enterprises, Universal City Studios, The Saul Zaentz Company, and Pixar Corporation. All of the major motion picture production companies except Sony Pictures Entertainment and Pixar Corporation filed a counterclaim on December 19, 2002.

The EFF amicus brief builds on public frustration expressed in comments to the Copyright Office\'s recent anticircumvention rulemaking. EFF helped 242 people document the harm they have experienced from technologically restricted CDs and DVDs.

The Northern District of California Court, San Francisco Division, 450 Golden Gate Ave., will hear the case at 9:00 am on May 15, 2003.

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Update on TIA and CAPPS II

On Tuesday, May 6, the House Committee on Government Reform, Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census, held a meeting entitled "Can the Use of Factual Data Analysis Strengthen National Security? Part I." The committee heard testimony from the Defense Advanced Research Projects Agency (DARPA), the Transportation Security Administration (TSA), and the Federal Bureau of Investigation (FBI). Here are some highlights from the hearing:

1. Dr. Anthony Tether, director of DARPA, told the subcommittee that TIA will only use intelligence from other agencies, not information from private companies. One representative asked Tether how someone, in accordance with the Privacy Act, could correct his or her information if that information is classified. In a neat sidestep, Tether answered that TIA will not own, collect or store information gathered from other agencies.

Gesturing towards recent public outcry over the use of credit reports in determining a citizen\'s security risk profile, Tether said that the broad phrase "transactional data" was a mistake. Instead, he claimed that DARPA really meant "transportational" data like airline reservations and rental car information. Tether added that Privacy Act compliance was a high priority. EFF is, however, skeptical of this statement because Privacy Act compliance is generally poor; many privacy advocates believe that the Act is full of loopholes and cannot easily be enforced.

Tether\'s written testimony responded to criticism of TIA as a "data-mining" program. He said that "the existing data-mining approach" is not well-suited to the task of finding terrorists. Data mining typically seeks to find new patterns of behavior in large amounts of data, while DARPA plans to look for evidence of "specified patterns." First, DARPA will develop "attack scenarios" based on "expert knowledge." Second, these scenarios will be reduced to "hypotheses about terrorist plans." TIA will try to "detect data that supports the hypotheses."

Tether used the example of "a truck bomb attack, involving a rental truck filled with fertilizer and other materials." Data mining would "comb through piles of data" for suspicious patterns. TIA would instead look for evidence supporting the hypothesis, "Are there foreign visitors to the United States who are staying in urban areas, buying large amounts of fertilizer and renting trucks?" This seems to be at odds with his earlier insistence on TIA\'s use of strictly "transportational" data.

Tether explained that TIA would likely use two types of queries: subject-based queries that begin with "known" suspects, using link analysis; and pattern-based queries looking for evidence of specific patterns.

Analysts would "detect[] in stages." "They will ask questions, get some results, and then refine their results by asking more questions," claimed Tether, who also asserted that detecting in stages would allow TIA to conform to legal procedures. "We envision hard-wiring many of the required procedures, permissions, or business rules into the software to ensure that they are actually being followed at each stage of the process." EFF further observes that part of the current problem is that the law hasn\'t yet caught up with data mining.

In the truck bomb example, "selective revelation" might be used. The query might tell the analyst about 17 unnamed suspects. At that point additional authority, such as a court order, might be required to access the 17 identities.

More generally, TIA would look at many privacy protection rules or safeguards, such as separating identity information from transactional information, anonymizing data before it is analyzed, filtering out irrelevant personal information, indelible audit technology, digitally watermarking data, and using trusted third parties. Though these provisions are welcome, EFF seriously questions whether such techniques would adequately protect against government abuse. As security experts know, the devil is in the implementation details.

2. Admiral James Loy, administrator of TSA, told the subcommittee that airlines will ask each passenger for his or her full name, date of birth, home address and home phone number. CAPPS II will not look at credit records or do background checks other than in FBI and other law enforcement databases -- excluding the NCIC database, which was recently exempted from Privacy Act accounting for accuracy. Nor will CAPPS II search medical records. Loy said that CAPPS II will be designed to prevent "mission creep," e.g., agencies\' expanding the number of databases and amount of information collected or analyzed. EFF is extremely curious about how TSA intends to prevent mission creep or source creep, and we eagerly await a policy outline from TSA.

Loy also said that TSA will not share information collected through CAPPS II with any other agency or private-sector entity. The real question, however, is how TSA can prevent such sharing, not what TSA intends.

He noted that the Department of Homeland Security, of which TSA is a part, now has a Privacy Officer, Ms. Nuala O\'Connor Kelly (formerly of DoubleClick). Kelly is currently reviewing CAPPS II. TSA will conduct a "privacy impact assessment" of CAPPS II and will use a "passenger advocate" to hear appeals from passengers who are denied access to air travel. Finally, Loy said that biometrics will not immediately be part of CAPPS II, but will later be part of a volunteer "trusted traveler" program. It looks as though biometrics may eventually be part of CAPPS II.

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Deep Links

Deep Links features noteworthy news items, victories, and threats from around the Internet.

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Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please visit our online calendar.

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Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
  http://www.eff.org/

Editor:
Ren Bucholz, Activist
  ren@eff.org

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