Thursday, January 20, 2000

Three Netizens Silenced by Motion Picture Industry in Early DVD Court Order

Electronic Frontier Foundation Vows to Continue Legal Fight

San Francisco -- During a three-hour hearing today in the Southern District of New York, Federal Judge Lewis Kaplan granted a preliminary injunction against three defendants sued by the very well funded Motion Picture Association of American (MPAA) over distribution of the DeCSS DVD descrambling program on the Internet. As a result, the defendants have been ordered to take down the offending material from their Web sites. The Electronic Frontier Foundation (EFF), which is a nonprofit organization providing pro bono legal counsel in this case and several others, vowed to continue to support the important free speech rights of the defendants.

"While we are clearly disappointed with today's decision, not all has been lost," said EFF's Executive Director Tara Lemmey. "Judge Kaplan's ruling is very narrowly tailored and does not impact on the rights of others linking to, discussing, or publishing technical information on the weak encryption built into DVDs."

EFF, which is leading the defense in a similar case brought in California, believes that the industry continues to inappropriately label speech about the technical insecurity of DVD as if it involved stealing digital copies of movies.

"Whether industry argues this under trade secret law or the new Digital Millennium Copyright Act (DMCA), these cases are not about piracy or hacking," added Lemmey. "They are about censorship of speech critical to science, education, and innovation." Reverse engineering is well-understood by the technical community as both legitimate and important for systems interoperability. In addition, it is invaluable to the open source movement for creating new products that can compete with Windows and other operating systems.

"Today's decision is a major wake up call for the $30 billion Linux community," said EFF Co-founder John Gilmore. "If Judge Kaplan's reading of the DMCA holds, then it will become illegal to build open source products that can interoperate and/or compete with proprietary ones for displaying copyrighted content."

EFF Staff Attorney Robin Gross agreed and added: "If this ruling is upheld, it would be a huge blow to fair use," which gives people the right to make copies for personal use without the author's permission. "The DMCA specifically states it does not impact fair use rights, but if this interpretation of the statute holds -- that people may no longer provide the tools for engaging in fair use -- then the privilege is meaningless."

Defendants were represented by New York lawyer Peter Katz in the judge's chambers, with Robin Gross, EFF, and Allonn Levy, Huber-Samuelson APC in San Jose, participating telephonically from San Francisco. The case is expected to proceed to trial very soon. Today's order will stand pending further review. There are still several issues to be explored considering that one of the defendants is an Internet Service Provider, who should not be liable under the law for clients' posting of DeCSS, and another one is a journalist covering these issues in the online media.

EFF will continue fighting the industry's first attempt to censor Web sites discussing DVD technology, an action brought by the DVD Copy Control Association (DVD-CCA), an industry trade group in California. In that case, EFF is sponsoring the legal defense of Andrew Bunner, the sole defendant to come forward. All of these steps are part of EFF's Campaign for Audiovisual Free Expression (CAFE), which it launched last summer to address complex societal and legal issues raised by new technological measures for protecting intellectual property rights.

For complete information on the MPAA and DVD-CCA cases, see:

For the full text of the judge's order for preliminary injunction, see:

To learn more about EFF's Campaign for Audiovisual Free Expression, see:

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The Electronic Frontier Foundation ( is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. 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 Web sites in the world.