EFFector, Vol. 12, No. 4; Dec. 28, 1999

EFFector Vol. 12, No. 4 Dec. 28, 1999 editor@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 148th ISSUE OF EFFECTOR (now with over 20,000 subscribers!):

Intellectual Property Interests Launch Holiday Attack on Free Expression

Trade Group Files Suit Against All Identifiable Posters of or Linkers to Linux DVD Hack

EFF Assembling Legal Team to Defend Targets

The movie industry, through its recently activiated Digital Video Disc Content Control Association (DVD CCA), a trade organization controlling DVD patents, has filed a lawsuit in California against dozens of people around the world. who have published information, or links to information, about the DVD Content Scrambling System (CSS), on the Internet. As many as 500 defendants could eventually be named. The DVD CCA claims that the defendants are violating the association's trade secrets and other intellectual property rights by posting the source code of (or simply having links to other sites with the source code of) a legally reverse-engineered means of decoding DVD discs. An important hearing in the case has been scheduled for tomorrow, Wed., Dec. 29, 1999.

Tomorrow's hearing is on whether the judge should issue a temporary restraining order against the defendants, who have been publishing information about the DVD content scrambling system in various locations in the US and worldwide. Any such order, if issued, would only apply for a few weeks, while the parties argued in court about whether a permanent injunction should restrict these defendants from publishing this information for the duration of the court case.

It is EFF's opinion that this lawsuit is an attempt to architect law to favor a particular business model at the expense of free expression. It is an affront to the First Amendment (and UN human rights accords) because the information the programmers posted is legal. EFF also objects to the DVD CCA's attempt to blur the distinction between posting material on one's own Web site and merely linking to it (i.e., providing directions to it) elsewhere.

These defendant individuals have been publishing legitimate, protected speech, including software, textual descriptions, and discussions of the DVD CSS. This speech is in no way copied or acquired from the DVD CCA's trade-secret documents. Copyrights do not give anyone any rights in "ideas", only in the exact form in which they are expressed. Trade-secret law only controls people who agreed to keep it secret and have been told the secret; other people remain free to independently discover the secret. The ideas being discussed and implemented were apparently extracted by having an engineer study a DVD product ("reverse engineering it"), which is a legal activity that is not restricted by any laws in most jurisdictions.

The DVD CCA is trying to shut these speakers down by starting with the false assumption that reverse engineering is illegal. It is not. If, for example, the DVD reverse engineering had been done in Santa Clara, it would be legal under the 9th Circuit Court case Sega v. Accolade. See also the 1998 US Digital Millennium Copyright Act, which provides specifically in section 1201(f) that reverse engineering of an copy-protection encryption system is legal for "interoperability", which is why it was done in this case.

The case itself is organized as a "theft of trade secrets" case; it doesn't use the Digital Millennium Copyright Act and doesn't appear to rely otherwise on copyright law. The root of the case is their allegation that the original reverse-engineering of the DVD CSS system was "improper" (paragraph 18), "unauthorized" (para. 20), "wrongfully appropriating proprietary trade secrets" (para. 21), "unauthorized use of proprietary CSS information, which was illegally "hacked" (para. 22). However, they provide no proof of these allegations, and they are unlikely to be true. If the original reverse-engineering was legal, which we believe is true, then the subsequent republication of the information is also legal, and the case is merely a tool to harass people exercising their legal rights.

EFF's interest in the case is to protect reverse engineering as part of First Amendment protected speech. EFF legal counsel Robin Gross, and pro-bono counsel Allonn Levy of Huber, Samuelson will be at Santa Clara Superior Court tomorrow morning to represent at least two defendants, Chris DiBona and Andrew Bunner. EFF co-founder John Gilmore will also attend at the hearing tomorrow. EFF will at minimum provide "stop-gap" defense to avoid a temporary restraining order against the defendants. Following the hearing, EFF will assess the situation and the level of our involvement.

EFF is committed to ensuring that individuals rights are protected, and free speech is a fundamental right. It would be a poor public policy to allow intellectual property owners to expand their property at the expense of free speech -- particularly when the speech in question elucidates how companies constrain the distribution of other free expression.

The technology at issue here is the DVD Content Scrambling System (CSS), a technical effort to prevent people who have legally purchased a DVD from making completely legal copies of it for their own use. It is legal ("fair use") for people to make personal copies of copyrighted material available to them. (See, e.g., the Supreme Court's 1984 decision in the "Betamax" case, Sony Corp. v. Universal City Studios. In that case a movie studio was trying to have all VCR's banned from the United States because of the potential to "pirate" valuable movies -- just as in the current case they are attempting to have all reverse-engineered decoders of DVDs banned. The Supreme Court ruled that if VCR's have even a single non-infringing use, they cannot be banned. It is clear that the reverse-engineered DVD CSS has a non-infringing use, the viewing of DVDs on the Linux operating system.) The underlying technology is for censorship, for control over who can communicate what to whom. The DVD CSS prevents people from making illegal copies -- and also prevents them from making LEGAL copies, by preventing them from making ALL copies. The publishers are trying to take away, by technical means, the rights guaranteed to citizens under the copyright laws of many jurisdictions, including the US.

The decoder source code at the center of the case, called "DeCSS", was created (by third parties, not the defendants) to enable Linux computers to utilize DVD drives and content, since the industry itself failed to produce the necessary drivers for this operating system. DVD CCA alleges rather unbelievably that the source code's real purpose is to enable illegal duplication of DVD discs. The industry association also misleadingly suggests that the DVD medium is simply a vehicle for commercial content delivery, when in fact it is a read-write medium intended to be used as computer storage by computer-using consumers, just like hard drives or writable CDs.

We believe that the industry is mounting this legal attack merely as a charade to discourage the widespread adoption of the legally reverse-engineered information into popular open source software programs. They knew that their "encryption system" was weak and that it would not withstand scrutiny, so they kept it secret as long as possible. Now that it's out in the open, they are wielding legal clubs against anyone who attempts to write about it or use it, to delay the inevitable. If they wanted to keep their information secret, they shouldn't have made millions of copies of it and sold them all over the world. Instead their tactics have been to follow the inevitable disclosure by swift oppression, using large bankrolls to send lawyers against little people. But the little people are part of the Linux community and the Internet community, which have made billions of dollars recently, and are not kindly disposed toward oppression.

WHAT YOU CAN DO: Show up!

If you're in the SF Bay Area and can make it to the hearing, consider it "Netizen's Dress-Up Day" on Wed., Dec. 29. Meet at the front of the Santa Clara County Superior Court, 191 N. 1st St., San Jose, CA, at 8am PST, dressed sharp, to personally attend the DVD case hearing. It is important that the judge see an unexpectedly large and intent attendance. The hearing will begin at 8:30 in one of Departments 2, 9 or 12 (uncertain at this time).

We will follow the hearing with a press conference outside the courthouse, and many attendees will do a group lunch at nearby Havana Cuba Restaurant.

Watch the wheels of justice grind! Shake hands with the intrepid lawyers who are working hard to protect our rights! Meet interesting defendants risking a lot to excercise their rights!

Please make a positive impression on the judge. Don those expensive, semi-formal duds. Show the court -- by showing up -- that this case matters to more people than just the plaintiff and defendants. Demonstrate that this decision will make a difference to society. That the public and the press are watching, and really do care that the issue is handled well.

We'll have to be quiet and orderly while we're in the courthouse. There will be no questions from the audience (that's us), and no photography there, but the session will be tape-recorded and transcribed, and you can take notes if you like. Remember that courts have strict security these days, so don't bring cameras, or even small pocket knives unless you want them held by entrance guards while you're in the courthouse.

We realize this is very short notice, and that only locals are likely to be able to attend, but this case is moving rapidly toward filing and there is nothing we can do to delay it.

Real Networks Gets Injunction against Streambox for Reverse Engineering "RealMedia"

Real Networks, makers of the proprietary streaming audio-video system known variously as RealMedia, RealAudio and RealVideo, have succeeded in getting a preliminary injunction under the Digital Millenium Copyright Act (DMCA) against Streambox, makers of "Ripper", software that, among other things, has reverse-engineered the RealMedia formats and/or protocols, allowing users to convert their RealMedia files into other formats.

EFF believes this suit is without merit and the injunction an improper restraint of freedom of expression, because the Ripper software has many legitimate uses, including enabling of fair use and time or format shifting (rights upheld in a number of court decisions, including those in RIAA v. Diamond and Sega v. Accolade.) Real Networks' characterization of Ripper as nothing but a tool for piracy is factually incorrect.

The DMCA was not intended, and may not be used, to suppress legtimate technologies or expression, nor the fair use rights of the public.

Administrivia

The Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco CA 94103-4832 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)

Editor: Stanton McCandlish, Communications Coordinator/Webmaster (editor@eff.org)

Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements may be reproduced individually at will.

To subscribe to EFFector via email, send message BODY of:
subscribe effector-online
to listserv@eff.org, which will add you to a subscription list for EFFector. To unsubscribe, send a similar message body, like so:
unsubscribe effector-online
to the same address.

Please ask listmaster@eff.org to manually add you to or remove you from the list if this does not work for some reason.