EFFector Vol. 15, No. 8, March 22, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
EFFector Vol. 15, No. 8, March 22, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
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Imagine a world where all digital media technology is either mandatory or forbidden -- Senator Fritz Hollings and a cabal of Hollywood entertainment interests are cooking up a set of laws aimed at conjuring this apocalyptic world into existence.
Today, Senator Hollings introduced the alarming Consumer Broadband and Digital Television Promotion Act (CBDTPA), which will give Hollywood plutocrats the power to stall new digital media technologies for a year, negotiating a phony "consensus" at lawyer-point with technologists. This "consensus" will receive the force of law, prescribing which user-hostile features are mandatory and which innovative features are forbidden. CBDTPA is derived from the draft SSSCA (Security Systems & Standards Certification Act), the subject of our last alert.
Both the House and the Senate have called for comments on the future of digital music, an issue that is deeply entwined with technology mandates.
This is YOUR chance to voice your opposition to laws that make all digital media technology mandatory or forbidden.
Send the EFF letter below to both the House and the Senate. Feel free to use this letter verbatim, or modify it as you wish. Please be polite and concise, but firm.
The Senate Judiciary Committee's Chairman Patrick Leahy and Ranking
Republican Member Orrin Hatch are accepting comments via a form at:
The House Judiciary Committee Subcommittee on Courts, the Internet &
Intellectual Property is accepting comments by email and fax, addressed to
the Chair:
Hon. Howard Coble
howard.coble@mail.house.gov
fax: +1 202-225-3673
Dear Senator Leahy, Senator Hatch, and Representative Coble:
I am writing to you today to express my concern at the growing trend to impose governmental technology mandates at the behest of the entertainment industry.
The introduction of the CBDTPA by Senator Hollings illustrates the inevitable conclusion of such mandates: a world where all digital media technology is either forbidden or compulsory. CBDTPA grants veto power over new technologies to the special interest groups who have opposed innovation since the Betamax fight.
Technology mandates are anti-consumer, treating us all as potential criminals and punishing us in advance for infringements we haven't committed. They are inevitably used to strengthen copy-prevention ("digital rights management") technologies that give disproportionate power to vendors, stripping us of our traditional fair-use rights, restricting our power to back up, sell, loan, transfer, and format-shift the products we've purchased.
Technology mandates are anti-innovative, stalling all new designs in lengthy one-sided "negotiations" where the entertainment industry can strong-arm technologists into adopting anti-customer "features."
Technology mandates hurt American companies by imposing expensive design requirements and lengthy design reviews. Foreign competitors are exempt from these restrictions, a situation that harms exports and will create a grey market for uncertified technologies from abroad.
I urge your committee to reject anti-consumer, anti-innovative, anti-competitive technology mandates, especially the CBDTPA and the "mini-CBDTPA" that is in the offing to give force of law to the "consensus" developed by the Broadcast Protection Discussion Group for digital TV standards.
I further urge you to repeal the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). Never used to prosecute anyone accused of infringing copyright, in practice these provisions have chilled the speech of computer scientists, stifled journalistic criticism, and prosecuted computer programmers and the companies for which they work.
Please, do the right thing for consumers, innovation and American business.
Sincerely,
[Your name;
include full address for maximum effectiveness]
Please remember to be polite but firm. Ranting, swearing, or lack of clear focus and resolve will not make a good impression. Try to make it brief and clear, without getting into nitpicky details. Re-casting the letter in your own words will be more effective than copy-pasting our sample.
This alert is primarily for U.S. residents. However, this issue is of importance globally, so keep an eye out in your own jurisdiction for related matters you can act on.
This drive to contact your legislators about the CBDTPA and the threats it poses to fair use and innovation is part of a larger campaign to highlight intellectual property industry assaults against the public's fair use rights, and what you can do about it.
Check the EFF Campaign for Audivisual Free Expression (CAFE)
website regularly for additional alerts and news:
The CBDTPA, Hollywood and Holling's bid to strangle the American technology industry, is just the latest salvo. Over the past year, the Copy Protection Technologies Working Group has convened the Broadcast Protection Discussion Group, which has been laying down the "consensus" on new digital television devices for a captive audience of representatives from electronics, software and computer companies.
These profoundly undemocratic proceedings sacrifice consumer rights, free speech and innovation on the altar of Hollywood's hysterical technophobia.
The CBDTPA promises a world where useful features would be eliminated if the possibility for their misuse existed, such as:
Senator Hollings, called "The Senator from Disney" for his close ties with Hollywood money, continues to push for technology mandates, federally imposed specifications for technologies that outlaw legitimate functionality in order to control illegitimate uses. It's the technological equivalent of requiring that crowbars be made of foam-rubber on the grounds that metal ones may be used in the commission of burglaries.
This is not the way that copyright law works. The Betamax decision, handed down by the Supreme Court in 1984, established the principle of "substantial non-infringing uses." The Betamax principle allows technologists to create tools that can be used for good, even if they can be used in other ways. It is an affirmation of the social good of innovation and of "fair use." Every technology company in the world depends on this affirmation -- it is the foundation of creative, innovative technology.
After 2006, the FCC will require all over-the-air broadcasts to be digitally encoded. Under the pretext of preventing the "Napsterization" of their video signals, the MPAA has convened the Broadcast Protection Discussion Group (BPDG) of the Copy-Protection Technical Working Group (CPTWG). The BPDG's "standards," developed in concert with a group of arm-twisted representatives from major technology vendors, will specify flags controlling the public's ability to store, copy, and share digital TV signals.
When Senator Hollings held his hearings on copyright reform in early March 2002, he heard testimony from studio-heads and technologists that presented the BPDG's process as a model for future "cooperative" ventures between Hollywood and technologists. The BPDG's representatives explained that their measures would only safeguard copyright if their "standards" were mandated by government.
Any hint that this mandate would limit the freedom to innovate was downplayed -- if the standard is voluntarily arrived at by all the affected parties, where's the loss of freedom?
Yet the standard must be mandated if it is going to be effective. Consumers will not "voluntarily" choose to purchase restrictive technology if they have other choices, and technology companies would be foolish to invest in restrictive technology that consumers will not buy. The only way the investment makes sense is if there is no competing "open" technology choice for the consumers. And the only way to kill off competition from products consumer prefer is to make those products illegal.
A mandated CPTWG standard is a clear abridgement of freedom. This "standard" has in reality been arrived at by a handful of players who exclude the press and have no means for receiving public comment. A mandated standard eliminates the ability for competing techniques to be tested in the marketplace. The public good is best served when vendors voluntarily adopt standards on the basis of consumer demand.
The scope of a CPTWG mandate was likewise downplayed. Receiving, storing, copying and transmitting DTV signals isn't merely the domain of set-top boxes. A CPTWG mandate would necessarily extend into the PC, requiring substantial integration with device drivers, operating systems, firmware and application APIs.
Full text of CBDTPA (bill S. 2048):
For more information about CBDTPA (and its older "parent", SSSCA), see:
For more information on the future of digital television, see:
See also EFF's "Frequently Asked Questions (and Answers) About Fair Use":
Declan McCullagh Wired News article on CBDTPA, "What Hollings' Bill Would Do":
Full text of CBDTPA bill:
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of the
most linked-to websites in the world:
http://www.eff.org
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415-436-9333 x112
Cory Doctorow, EFF Outreach Coordinator
cory@eff.org
+1 415 436 9333 x106
- end -
Recently, Intel Corporation has issued two very different statements about the dangers to innovation and fair use posed by copyright owners' attempts to get Congress to put the power of federal law behind digital rights management schemes.
In his testimony before the Senate Commerce Committee, Intel Executive Vice President Leslie Vadasz courageously spoke out against the Hollywood moguls who are asking Congress make copy controls mandatory in all new technologies. Vadasz expressed skepticism of the demands of copyright industries, which he said "historically feared technology -- from the advent of sound recording, to the development of the VCR, the DVD, the PC, and other digital devices". He explained that innovation must not be sacrificed in an impossible quest to lock down every tool that might be used for infringement.
By contrast, a March 19 joint statement by Intel Corporation and AOL Time Warner suggests a disappointing change of heart by Intel. The "AOL Time Warner -- Intel Joint Statement of Principles" envisions a world in which corporate negotiations decide consumers' rights, and government outlaws devices falling outside a "consensus" imposed by Hollywood at lawyer-point. According to the joint statement, "The goal of these efforts is to create an overall architecture for protecting digital content throughout its distribution life so that it does not 'leak' out in an unprotected manner" -- with the result that copyright holders shape the digital architecture of the future, retaining the power to control your use of the movies, music and books you buy.
The earlier Vadasz statement praised innovation and suggested that copy control efforts can, and have, put innovation at risk. Vadasz cited historical examples like the movie studios' protracted efforts to outlaw the VCR. The joint AOL-Intel statement scarcely mentions this risk, endorsing a collaboration between copyright owners and technology companies against the public.
The "voluntary inter-industry negotiations" to reach agreements on copy controls are not a good model for legislation, nor have their prior efforts benefited consumers. These negotiations occur in relative secrecy -- generally excluding the press -- and rarely include consumers or consumer advocates. Typically, these groups discount the kind of innovation praised by Vadasz.
Today, the Broadcast Protection Discussion Group (BPDG), endorsed by the AOL-Intel statement, is meeting in Los Angeles to try to decide what sort of copy controls will be built into every device capable of receiving digital television (DTV). Consistent with the AOL-Intel statement's expressed ambition of creating an "overall architecture [...] so that [content] does not 'leak' out," BPDG aims to prevent any device from recording a DTV broadcast in an open format without the copyright holder's explicit permission. Existing products which don't impose these restrictions -- such as some TV cards for PCs -- would be outlawed.
This federal ban on "noncompliant" televisions and PC peripherals is endorsed in the AOL-Intel statement as a "narrowly focused government regulation," "necessary" and "appropriate for proper enforcement of [industry] consensus." We call this process bankrupt, its outcome a threat to innovation, and its legacy a restriction of the public's fair use rights.
We call on Intel to hold fast to Vadasz's vision of the technological future, one which holds no place for federal mandates on innovative digital technologies.
Testimony of Leslie Vadasz:
Intel and AOL Time Warner's "Statement of Principles":
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You are invited to join an intimate group of fifteen for a lively evening of fine food, history and conversation with the original EFF co-founders, Mitch Kapor and John Perry Barlow. This exchange of ideas will take place on Tuesday, April 16th at 7:30 p.m. PT, and will benefit EFF's work to protect rights in the digital age.
Mitch and Barlow founded EFF in July of 1990 to protect civil liberties where law and technology collide. (See Barlow's compelling account from that time at http://www.eff.org/Misc/Publications/John_Perry_Barlow/electronic_frontier.eff.) In its 11-1/2 year history, EFF has been on the forefront of high tech issues, fighting to ensure that reading email requires a warrant, software is recognized as speech, restrictions on encryption export are illegal, and fair use survives in the digital age.
The dinner will take place at San Francisco's classic Waterfront restaurant in the North Room. While looking out over the San Francisco Bay, you will have the chance to take part in an in-depth conversation about EFF's fascinating role in the universe. You will also be contributing to an important cause, as the money raised from this unusual evening will go to furthering our work.
The evening includes the full cost of your dinner and drinks, the opportunity to talk with Mitch and Barlow, a vintage EFF t-shirt, and other surprises. The cost is $500. As there are only 15 available seats, space will fill up quickly.
Please contact Katina Bishop for more information and to RSVP at katina@eff.org or +1 415-436-9333 x101.
- end -
Los Angeles - The Electronic Frontier Foundation today helped a member of the ICANN Board of Directors file a lawsuit forcing ICANN management to grant him some reasonable access to corporate records.
Karl Auerbach, the North American Elected Director of the Internet Corporation for Assigned Names and Numbers (ICANN) began asking for corporate records in December 2000, shortly after he was elected to the Board. ICANN management dragged its feet for nine months, then issued a new "policy" -- never brought before the Board for discussion or vote -- requiring Auerbach to sign a non-disclosure agreement that placed Auerbach's ability to discuss the records at the discretion of ICANN management.
"California nonprofit law requires a corporation to provide its directors the information required to make informed and intelligent decisions," said Auerbach. "ICANN management has denied me the tools I need to exercise independent judgment and fulfill my duties as a director."
"Directors, not management, have the ultimate responsibility and authority to oversee the operations of a corporation like ICANN," explained Auerbach's attorney James Tyre. "ICANN staff's arbitrary and changing policy regarding access to corporate records is not only disturbing, but unlawful in the state of California."
"The Electronic Frontier Foundation finds ICANN management's apparent abuse of power disturbing," added EFF Legal Director Cindy Cohn. "The Internet community relies on well-informed ICANN directors like Mr. Auerbach to administer the corporation appropriately."
Because ICANN is a non-profit California corporation, the organization must comply with a California statute giving any director of the corporation an "absolute right" to inspect and copy corporate records.
In addition, ICANN's bylaws provide that: "Every Director shall have the right at any reasonable time to inspect and copy all books, records and documents of every kind, and to inspect the physical properties of the Corporation. The Corporation shall establish reasonable procedures to protect against the inappropriate disclosure of confidential information."
The case, entitled Auerbach v. ICANN, case no. BS074771, was filed in California Superior Court, Los Angeles County.
For documents related to the Auerbach v ICANN case:
ICANN Articles of Incorporation:
ICANN Bylaws:
- end -
San Francisco - The Electronic Frontier Foundation (EFF) today chided media conglomerate Vivendi Universal Publishing for threatening gamers who created their own multiplayer gaming community.
On behalf of its Blizzard Entertainment division, Vivendi sent a "cease and desist" letter to Internet Gateway Inc., the Internet Service Provider (ISP) host of a free software project called "bnetd" that emulates Blizzard's Battle.net gaming service. Blizzard game purchasers can meet online or on a local area network to chat, find competition, and start multiplayer games using the bnetd software.
Vivendi demanded that the ISP disable the website hosting the bnetd software, claiming it violates copyright law and the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA).
EFF responded to Vivendi's letter, explaining that its claims were unfounded and stating that the bnetd software, which was removed upon receipt of the demand, would be reposted in 10 days.
"A group of volunteers decided to write a server for Blizzard games because the Blizzard servers were undependable and we wanted increased functionality," explained Tim Jung, owner of Internet Gateway, based in St. Louis. "Vivendi claims that the server violates the law because it does not implement checking the game's CD-KEY, designed to prevent the use of illegal copies of their games. We asked them to give us the information we needed to do the checking, but they refused."
"This is yet another example of misuse of the DMCA and copyright law," noted EFF Legal Director Cindy Cohn. "Bnetd developers engaged in legal reverse engineering without circumvention or any illegal activity."
The DMCA has no requirement that one must include every feature of a program or system like CD-KEYS; in fact, the DMCA's "no mandate" provision states that developers of interoperable programs do not have to respond to CD-KEYS and similar technology.
"Corporations have wielded the DMCA to censor magazines, academic researchers, and competitors," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Now Vivendi is using the DMCA to threaten customers who simply want to improve the gaming environment for a product they've purchased legitimately."
Cease and desist letter sent by Vivendi Universal:
EFF reply to cease and desist letter:
Bnetd website:
Blizzard's explanation:
Media coverage and websites related to the case:
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of the
most linked-to websites in the world:
http://
Founded in 1995, Missouri-based Internet Gateway provides
Internet and networking solutions, as well as consulting
services, to businesses and end users across the country.
Internet Gateway provides Internet access, consulting and
support to other ISPs as well as to its own customers. In
addition to nationwide consulting and support, Internet
Gateway currently provides Internet access to five cities
including the St. Louis metro area, Cape Girardeau,
Sikeston, Perryville and the St. Charles/St. Peters metro
area. The company website can be found at:
The bnetd project is a collaboration focusing on
development of a server that attempts to emulate Blizzard's
Battle.net gaming server. The bnetd project is run by
volunteers and is neither supported by nor affiliated with
Blizzard Entertainment. The project website is at:
- end -
Philadelphia - In a nine-day trial set to begin on Monday, the American Civil Liberties Union will argue that a federal law that forces libraries to censor constitutionally protected speech online is unconstitutional and should be permanently struck down.
At issue is the Children's Internet Protection Act, a federal law passed in December 2000 that ties crucial library funding to the mandated use of blocking programs on Internet terminals used by both adults and minors in public libraries.
The ACLU will present testimony from librarians, library patrons, website authors and experts on web blocking programs. On Monday, Ginnie Cooper, Director of Multnomah County Public Library in Oregon will testify. On Tuesday, the court will hear from 16-year-old Emma Rood, a patron of the Oregon library, among others. Note: Witnesses will be available for interview only after they have completed their testimony.
The ACLU has created a comprehensive web page for the case that includes a list of the daily trial witnesses and their bios, legal papers, expert reports, and examples of wrongly blocked websites, online at http://www.aclu.org/features/f032001a.html
Electronic Frontier Foundation (EFF) Senior Attorney Lee Tien is co-counsel in the case.
The case is Multnomah County Library vs. United States of America, No. 01-CV-1322. Multnomah County and others are represented by the ACLU. The American Library Association has filed a similar challenge on behalf of its members; the two cases have been consolidated by the court and will be heard together by a three-judge panel.
Who: ACLU attorneys Ann Beeson, Chris Hansen, Stefan Presser and Kevin Bankston, on behalf of libraries, library patrons and website authors.
What: Challenge to Children's Internet Protection Act
When: Monday, March 25 - Thursday, April 4, 2002; trial begins at 9:15 a.m. ET on Monday.
Where: U.S. Courthouse, 601 Market Street (at 6th Street) Philadelphia, PA, in Judge Bartle's courtroom, Room 16-A
ACLU site on CIPA trial:
Text of CIPA, passed as part of massive omnibus
appropriations bill H.R. 4577:
EFF analysis of CIPA:
Additional information on CIPA:
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of the
most linked-to websites in the world:
http://www.eff.org/
The American Civil Liberties Union is the nation's foremost
advocate of individual rights -- litigating, legislating,
and educating the public on a broad array of issues
affecting individual freedom in the United States. The
organization has hundreds of chapters with a nationwide
website at:
http://www.aclu.org/
Emily Whitfield, Media Relations Director, ACLU
ewhitfield@aclu.org
+1 212-549-2566
Stefan Presser, Legal Director, ACLU of Pennsylvania
spresser@aclupa.org
+1 215-592-1513 x116
Lee Tien, EFF Senior First Amendment Attorney
tien@eff.org
+1 415-436-9333 x102
Will Doherty, EFF Online Activist / Media Relations
wild@eff.org
+1 415-436-9333 x111
- end -
The EFF would like to thank RSA Security, Inc. for their recent donation of boothspace at the RSA Conference 2002. The conference took place in San Jose, CA, from February 19-21. Without the assistance of RSA Security, owners and managers of the RSA Conference, the EFF would not have been able to further spread the word among the cryptography and security communities. Thanks RSA!
- end -
EFFector is published by:
The Electronic Frontier Foundation
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+1 415 436 9333 (voice)
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http://www.eff.org/
Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
editors@eff.org
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