EFFector, Vol. 15, No. 15, May 24, 2002

EFFector Vol. 15, No. 15, May 16th, 2002 editors@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 215th Issue of EFFector:

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EFF Action Center Test Launch Announcement

We are excited to announce a test of the EFF Action Center, where you'll find alerts on technology and civil liberties issues and pending legislation where your action can make a difference. You will also find the tools and information you need to protect your rights in the digital world.

With the EFF Action Center, you can send customizable emails, letters and faxes. We've also included a legislative directory and easy access to background information on our alerts. Subscribing to the EFF Action Center will also allow you to subscribe to EFFector if you haven't already.

Skip to the bottom of the page where you can enter your email address to receive your EFF Action Center password. Then, return to the login page listed above and enter your email address and the new password. From here you can choose to update your personal information via the "Edit Your Profile" link in the right hand toolbar. If you update your personal information you will have access to more options, like editing the letters you send. If you choose not to enter more information, you can still use the Action Center to send pre-written letters.

Your help during this testing period is greatly appreciated. If you encounter a problem with the EFF Action Center, let us know at:

alerts.eff.org

Contact:

Ren Bucholz
Activist
Electronic Frontier Foundation
ren@eff.org
+1 415 436-9333 x121 (office)

Turner CEO Says Bathroom Breaks are Theft

Electronic Frontier Foundation ACTION ALERT

(Issued: May 24, 2002 / Expires: May 30, 2002)

Jamie Kellner, CEO of Turner Broadcasting, says that skipping commercials, even if you're in the bathroom, is stealing.

In the April 29, 2002, issue of "Cableworld" magazine, Kellner describes personal video recorders (PVRs) like TiVo and ReplayTV as devices designed to "steal" programming because they allow consumers to skip programming in 30 second intervals. Kellner states:

"JK: Because of the ad skips.... It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming.

JK: I guess there's a certain amount of tolerance for going to the bathroom. But if you formalize it and you create a device that skips certain second increments, you've got that only for one reason, unless you go to the bathroom for 30 seconds. They've done that just to make it easy for someone to skip a commercial."

Despite what Mr. Kellner thinks, television viewers have no "contract" with broadcasters. While it may seem laughable that a powerful industry executive such as Mr. Kellner holds this belief, it's no laughing matter -- Mr. Kellner's colleagues in the television industry are suing electronics manufacturers to keep PVRs off the market. Let Mr. Kellner know what you think about his "contract" with this customizable letter in our new EFF Action Center: http://action.eff.org

Contact:

Ren Bucholz
Activist
Electronic Frontier Foundation
ren@eff.org
+1 415 436-9333 x121 (office)

Electronic Frontier Foundation Media Release

ICANN Director Seeks Court Order to Review Records

Internet Regulatory Agency Obstructs Board Access

Los Angeles - The Electronic Frontier Foundation (EFF) today filed a motion with the Los Angeles Superior Court on behalf of ICANN Director Karl Auerbach requesting the court grant him immediate access to corporate records that ICANN management has denied him for one-and-a-half years.

Auerbach, the North American Elected Director of the Internet Corporation for Assigned Names and Numbers (ICANN) began asking for corporate records in November 2000, shortly after he was elected to the Board. After nine months delay, ICANN management granted Auerbach conditional access to corporate records if he signed a "policy"Ñwhich had not been ratified by the Board of DirectorsÑthat placed his ability to access and copy the records at the discretion of ICANN management.

"I spent more than a year trying to work this out informally," noted Auerbach. "It's my right to gain access to the records I need to discharge my duties on the ICANN Board effectively."

"If ICANN management is concerned that certain information not be publicized, it must specifically identify those documents and demonstrate good reason for its concerns," explained Auerbach's lead attorney James Tyre. "ICANN cannot simply make broad, nonspecific claims of 'privacy, privilege and confidentiality' to prevent Board member access or copying of basic corporate documents."

"As even Mr. Lynn admits, ICANN requires dramatic reform," noted EFF Legal Director Cindy Cohn. "The Internet community relies on ICANN's Board members, especially its elected ones, to help find out what has gone wrong and evaluate the proposed solutions. Without access to the basic information about how ICANN has been run so far, Mr. Auerbach cannot help formulate the next incarnation of ICANN to fix the problems of the past."

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
+1 415 436-9333 x108 (office), +1 415 823-2148 (cell)

James S. Tyre
Attorney
Law Offices of James Tyre
jstyre@jstyre.com
+1 310 839-4114

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 and privacy online. EFF is a member-supported organization and maintains one of the most-linked-to websites in the world at: http://www.eff.org/

Elcomsoft Hits the Courtroom in Late August

The countdown has begun for the first criminal case to be tried under the Digital Millenium Copyright Act (DMCA). On Monday, California Superior Court Judge Ronald M. Whyte set the start of the U.S. v. Elcomsoft trial for August 26th.

Ever since Elcomsoft's motion to dismiss was refused by Judge Whyte on May 7, the company awaited the establishment of a hearing date in the controversial case. The U.S. government's original target was ElcomSoft programmer Dmitry Sklyarov, who was arrested last July after speaking at a hacker convention in Las Vegas. Sklyarov spent several weeks in jail and was prevented from leaving the country for several months.

Now prosecutors are shifting the focus to Elcomsoft, who could be fined $500,000 if convicted. The crux of the federal government's attack is Elcomsoft's AEBPR program, which allows users to disable copyright protections on Adobe e-Book software. The case is one of the first to challenge the anti-circumvention measures of the DMCA as an unconstitutional restraint on freedom of speech.

Contacts:

Cindy Cohn
Legal Director
cindy@eff.org
+1 415 436-9333 x108 (office), +1 415 823-2148 (cell)

Librarian of Congress Rejects Proposed Webcasting Royalty Rates But Future of Webcasting Still in Doubt

In 1998, as part of the Digital Millennium Copyright Act (DMCA), Congress required Internet webcasters who stream music pay royalties to record labels.

The Librarian of Congress on May 20 rejected the royalty rates proposed by the Copyright Arbitration Royalty Panel (CARP). The proposed CARP rates have been widely criticized by both webcasters, who believe they are too high, and record labels, who complain they are too low. Unfortunately, the Librarian did not explain the basis for rejection of the rates, promising instead to offer alternate rates by June 20. As a result, the future of webcasting remains in limbo.

For more on the webcasting royalty controversy, see: http://www.saveinternetradio.org/

For information regarding the related controversy over record-keeping requirements for webcasters, including EFF's comments filed before the Copyright Office, see: http://www.copyright.gov/carp/114/comments.html

Contact:

Fred von Lohmann
EFF Senior Intellectual Property Atty.
fred@eff.org
+1 415-436-9333 x123

Electronic Frontier Foundation Media Release

California Supreme Court Hears DVD Trade Secret Case

Civil Liberties Groups Seek Internet Publication Protection

San Francisco - The Electronic Frontier Foundation (EFF) and the First Amendment Project today asked the California Supreme Court to affirm an appeals court decision permitting publication of software pending a lower court's ruling on a trade secret case. In a tremendous victory for freedom of speech on the Internet, the appeals court had overturned a lower court injunction against publication of the software based on the publisher's First Amendment rights.

DVD-CCA, the organization that licenses DVD technology for Hollywood movie studios, originally filed the lawsuit in December 1999 and obtained a lower court injunction in January 2000 against defendant Andrew Bunner for publishing DeCSS software that decrypts DVDs. When an appeals panel overruled the lower court injunction last November, DVD-CCA then appealed to the California Supreme Court to challenge the appeals panel ruling.

The appeals panel had ruled that the trial judge failed to consider the First Amendment rights of Bunner to republish information readily obtainable in the public domain when it issued the gag order.

DVD-CCA contends that republication of DeCSS software constitutes illegal misappropriation of a trade secret. Bunner had republished DeCSS on his website after reading about it on Slashdot and deciding it was newsworthy.

"Well established trade secret law clearly holds that only those individuals who have undertaken an affirmative duty to treat information as a trade secret are required by law to keep it secret," said EFF Intellectual Property Attorney Robin Gross. "People who obtain information from the public domain have a First Amendment right to republish that information."

"We're confident the Supreme Court will recognize, as the Court of Appeal did, that this is a classic First Amendment case," said David Greene, Executive Director for the First Amendment Project and main author of the groups' legal brief.

DVD-CCA's reply brief is due on June 11, 2002, and oral argument will be scheduled before the California Supreme Court for sometime in the next eighteen months.

Contacts:

Robin Gross
Intellectual Property Attorney
Electronic Frontier Foundation
robin@eff.org
+1 415 436-9333 x112 (office), +1 415 637-5310 (cell)

David Greene
Executive Director and Staff Counsel
First Amendment Project
fap@thefirstamendment.org
+1 510 208-7744

About EFF:
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 and privacy online. EFF is a member-supported organization and maintains one of the most-linked-to websites in the world at
http://www.eff.org/

Electronic Frontier Foundation Media Advisory

Hollywood Wants to Plug the "Analog Hole"

Electronic Frontier Foundation Analyzes Industry Report

San Francisco - The Electronic Frontier Foundation (EFF) today posted its analysis of the Motion Picture Association (MPAA) of America's "Content Protection Status Report."

The MPAA filed the report with the Senate Judiciary Committee last month, laying out its plan to remake the technology world to suit its own ends. The report calls for regulation of analog-to-digital converters (ADCs), generic computing components found in scientific, medical and entertainment devices.

The MPAA proposes that every ADC be controlled by a "cop-chip" that will shut down the device if it is asked to assist in converting copyrighted material thus "plugging the analog hole." For example, your cellphone could refuse to transmit your voice if you wandered too close to the copyrighted music coming from your stereo.

The EFF report demonstrates that this proposed ADC regulation is part of a larger agenda of the entertainment industry. The first piece of that agenda, a mandate that would give Hollywood a veto over digital television technology, is weeks away from coming to fruition. Hollywood also proposes a radical redesign of the Internet to assist in controlling the distribution of copyrighted works.

This three-part agenda -- controlling digital media devices, controlling analog converters, controlling the Internet -- is a frightening peek at Hollywood's vision of the future.

Contact:
Cory Doctorow, EFF Outreach Coordinator
cory@eff.org
+1 415 436 9333 x106 (office), +1 415 726-5209 (cell)

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