EFFector, Vol. 13, No. 4; Apr. 3, 2000

EFFector Vol. 13, No. 4 Apr. 3, 2000 editor@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 152nd ISSUE OF EFFECTOR (now with over 23,000 subscribers!):

EFF is going through some changes, and we wanted to let you all know what's happening. The rest of this EFFector continues our editorial focus on cyberspace policy issues.

As most of you know, EFF was founded almost 10 years ago to defend innocent computer users and companies against vastly overzealous raids and judicial actions by the U.S. Secret Service.

Since then, EFF has fought a hard decade to defend fundamental rights that have been put at risk by the online revolution and by reactions to that revolution -- both in government and the corporate world. EFF also acts to preempt such reactions, through public education and policy analysis that are done before trouble erupts.

Doing this is hard work, and the electronic frontier is more chaotic than ever, even though - or perhaps because - it is vastly more populated today than it was in 1990.

EFF is a unique organization, supported almost entirely by members and donors, and working in the true public interest on vital and active issues. This broad public base of supporters is our constituency, and we are neither simply a foundation-supported think tank nor industry-funded special interest lobby.

We know you want us to fight the good fight for fundamental rights in the online world. This, with your support, we will continue to do.

There have been some EFF leadership changes, and new hires in recent times. Two of the original founders and another long-term board member have committed to continue steering the organization into a challenging future.

Issues and cases that warrant EFF involvement come up literally on a daily basis. With so much to do, it is no surprise that over time fundamental differences occasionally arise internally over the right priorities, and over a long-term vision for the organization. EFF has recently resolved some of these differences, and remains committed to the founding principles of our mission.

Our new Chairman of the Board, Internet entrepreneur and early online publisher Brad Templeton, joined EFF soon after its founding (and some of you may remember his writings from the very first volume of EFFector). He joined the EFF board in 1997. Templeton founded ClariNet Communications Corp., the net's first and largest electronic newspaper, in 1989 (since merged with Newsedge Corp.) He is on the advisory board of, and is an investor in, the e-mail company Topica and the Web user interface venture Troba, and is involved in a variety of software development and publishing operations. Brad started the net's most widely read newsgroup, rec.humor.funny, and authored some of the best-known FAQs, including "Emily Postnews Answers Your Questions on Netiquette". His home page is:
http://www.templetons.com

EFF Co-Founder and Boardmember John Perry Barlow remains as Vice-Chairman and speaks the story of EFF around the world. Barlow is a retired Wyoming cattle rancher, a former lyricist for the Grateful Dead, and a Fellow at Harvard Law School's Berkman Center for Internet and Society. He is a writer, lecturer, editor and consultant on subjects relating to the virtualization of society, and has contributed to and/or worked with Communications of the ACM, WIRED magazine, Vanguard Group, the Global Business Network,Diamond Technology Partners, and the National Computational Science Alliance. His home page is:
http://www.eff.org/homes/barlow/

John Gilmore, Boardmember and Co-Founder of EFF, has become its interim Executive Director. John has a long career in cyberspace civil liberties, including more than ten years of focus on encryption policy, in which his views have gradually gained sway. He has substantial technical and management experience from several startup companies, including Cygnus Solutions, which he co-founded, and which was acquired in January by Red Hat, Inc. John also has strong ties to the open source software community, which cares deeply about the freedom to innovate and to publish. His home page is:
http://www.toad.com/gnu/

Additionally, EFF has brought on a Development & Marketing Director (Tom McGuire), a Public Policy Director (Lauren Gelman), a Press Officer (Katina Bishop), and a Membership Coordinator (Kathleen Guneratne) in the last year, and is seeking a Legal Services Director.

EFF and Tara Lemmey, its former Executive Director, have mutually agreed to part ways, but will continue working together on important upcoming projects. Tara will be dedicating her full energies to a spinoff known as Project LENS (Law, Economics, Nature & Self) which she initiated in 1997. Project LENS will be hosting a conference on identity and related issues such as biometrics and privacy in October of this year. EFF will be a founding sponsor of this conference.

EFF will immediately conduct a search for a permanent Executive Director. We are still deciding on the qualifications of a successful candidate. Interested parties can send email to search@eff.org.

EFF continues to pursue its long-term mission of educating the public, policymakers, and courts about the issues that arise when traditional expectations conflict with the new worlds created by computers and the Internet. We remain focused on civil liberties and civil responsibilities in cyberspace. We continue to offer legal advice and referrals, a large archive of current and historical online civil liberties information, and information for the press and policymakers about the long-term issues that arise in the many short-term conflicts that come up on the Net.

Our board members John Perry Barlow and Esther Dyson have been writing and speaking about the conflicts between intellectual property protection and free speech for years. These issues have come to a head in the last year, providing a new area for EFF's activities. Other articles in this EFFector discuss some of the issues involved.

Our path is not an easy one. Every day we learn that if we don't step forward to defend freedom to speak, freedom to encrypt and the rights of privacy, often nobody will. The issues are contentious and the times are "interesting" in the sense of the Chinese curse.

We thank you, our members, supporters, and subscribers, for helping us bring some order to the frontier as it continues to evolve at high speed. We pledge to continue "fighting the good fight" to keep cyberspace a safe place for civil liberties, and to teach everyone what it means to act responsibly online.

Ace Attorney Enters Battle Over DVDs

Civil Liberties Group Pairs with Renowned First Amendment Lawyer Martin Garbus in the Fight for Free Expression on the Internet

San Francisco, CA -- Martin Garbus a prominent NY First Amendment attorney has joined the Electronic Frontier Foundation's (EFF's) DVD legal team as head litigator in a groundbreaking case that challenges the MPAA's controversial interpretation of the Digital Millennium Copyright Act. Garbus's addition to the DVD legal team brings high caliber litigation expertise to EFF's continuing fight for free expression on the Internet.

"This is one of the most important cases of the new Millennium concerning free expression on the Internet," stated Martin Garbus. "The US Supreme Court will ultimately decide whether corporations or American citizens will be able to determine what the American public can see hear and read. This case stands for freedom, for the media, for the people, and against selfish corporate greed. With such fundamental rights in question, I felt compelled to get involved."

Garbus is one of the country's leading trial attorneys and a founding partner of NY firm Frankfurt, Garbus, Klein, and Selz, PC where he has long been engaged in the fight for civil liberties. Garbus successfully tried complex intellectual property and media cases in nearly every state in the country. He has appeared before the US Supreme Court and has taught law at Columbia and Yale Universities. A frequent contributor to major newspapers and national magazines, including the New York Times, Washington Post, and Los Angeles Times, Garbus also regularly comments upon current legal issues for NBC, CBS, Time, and Newsweek.

"EFF is excited to work with such an accomplished First Amendment litigator and to have the benefit of Garbus' court room skills fighting for free expression online," stated Robin Gross, EFF staff attorney. "This case represents a continuation in EFF's ten-year battle to protect civil liberties on the 'Net. It strikes at the core of EFF's mission to fight for free expression, the right to reverse engineer software, and the right to publish the results without fear of prosecution."

The motion picture industry has launched a series of legal attacks against several Web site publishers for posting information on the weak security of DVDs including 2600 Magazine in NY. EFF, which is leading the defense in the cases brought in California, New York, Connecticut, and Norway, believes that the industry continues to inappropriately label speech about the technical insecurity of DVD's as stealing digital copies of movies.

EFF's New York DVD Legal Defense Team consists of Martin Garbus of Frankfurt, Garbus, Klein, and Selz; Eben Moglen of Columbia University Law; Allonn Levy of Huber Samuelson; and Robin Gross of the Electronic Frontier Foundation. The trial date has been set for December 5, 2000 in federal district court in New York.

EFF's work in the DVD cases is part of its Campaign for Audiovisual Free Expression (CAFE), which it launched last year to address complex societal and legal issues raised by new technological measures for protecting intellectual property rights. A special fund has been established by EFF to support the costly nature of this litigation. Donations are tax-deductible and can be made online via EFF's Web site.

For more information concerning EFF's Campaign for Audiovisual Free Expression, see:
http://www.eff.org/cafe

The Electronic Frontier Foundation (http://www.eff.org) 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 s upport 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.

Mr. David O. Carson
Office of the General Counsel
Copyright Office GC/I&R
P.O. Box 70400
Southwest Station
Washington, D.C. 20024
Sent via email: 1201@loc.gov

RE: REPLY COMMENTS -- Exemption to DMCA's Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies

The Electronic Frontier Foundation (EFF) appreciates the opportunity to submit reply comments to aid the Copyright Office in its task of determining additional classes of works to exempt from the Digital Millennium Copyright Act's circumvention ban. Congress acknowledged the adverse impact likely upon individual rights from the Act's general ban on circumvention, and instructed the Copyright Office to exempt further classes in addition to the few exceptions listed in the statute in order to achieve balance among interests in the digital environment.

Because the DMCA only permits exemption under a narrow set of circumstances, it tips copyright's traditional balance overwhelmingly in favor of copyright holders at the expense of free expression, fair use, and innovation. Rather than outlaw reverse engineering generally and then selecting a few specific circumstances in which to permit the activity, Congress should have outlawed illegal activity while leaving legal reverse engineering intact to remain a primary driver in the emerging information economy.

In order to restore the delicate balance to copyright law in a digital environment, traditional principles such as the First Sale Rule must be granted digital equivalents. Under copyright law's First Sale Doctrine, copyright holders' right to control what happens to a particular copy of a work are cut-off once the author has first placed the work into the stream of commerce. The wisdom behind this prohibition against perpetual control over a particular work by the author continues despite technology's advancement to a state promising such perfect control over all works. To grant copyright holders the right to control all uses of works treads dangerously upon First Amendment principles and will certainly upset copyright's balance.

Because the DMCA grants copyright holders a new right to control access to digital works, this right must be similarly limited by a "First Access Rule" that prohibits copyright holders from governing each and every lawful access, use, and enjoyment of the work once initial access has been authorized. Congress never intended, nor would the Constitution permit copyright holders to be granted such a broad and sweeping right to control all experiencing of creative expression. The access right granted to copyright holders in the DMCA must be limited to the first lawful accessing of a work and not each subsequent lawful accessing and use of that work.

For example, when a DVD is lawfully purchased, it is implied that the purchaser is authorized to access the file contained within the physical media in order to view it on whatever platform that person uses. A copyright holder should not be granted the right to control the consumer's lawful experience with the DVD. Allowing copyright holders to tie hardware and software together to control the experiencing of the work as in the case of copy protection for DVDs, eviscerates copyright law's First Sale Rule and years of careful judicial endorsement for this limitation to the copyright holders exclusive bundle of rights. Balance requires limitations to the perfect control desired for by the copyright industries. Cutting off the copyright holder's right to control the lawful purchaser's accessing of a particular work after the initial authorization is granted ensures that balance can be maintained and all interests are protected by the DMCA. Therefore, the Copyright Office should define the DMCA's access right narrowly, restricted by a First Access Rule.

All classes of works should be exempt from the Act's general circumvention ban when the purpose for the circumvention is to make a fair use or engage in another non-infringing uses. Because technology enables copyright holders to dictate and architect the parameters for the public's use and enjoyment of a particular work, the need to protect society's interests in access and using the work should be given considerable attention. Infringing uses of works can be punished under existing theories of copyright law; so allowing circumvention for the purpose of engaging in a non-infringing fair use would prove harmless to the copyright holder, while it preserves the public's interest and right to use the copyrighted expression.

Claims by the copyright industry that such broad additional rights should be created to combat its alleged vulnerability in a digital environment overlook the fact that technology enables copyright holders with greater protection over their works than traditional space ever did. Authors have never had the ability to program a book to delete itself after a particular date or prohibit the printing or copying of any particular page within it.

Indeed, technology provides authors with far greater power over their works than the law has been willing to grant them. The power of perfect control over use has never granted to an author by copyright law. Fair use is part of copyright law's intended design. This new power can easily be abused without substantial limitations placed upon it to ensure that individuals' rights are preserved as well. Therefore, the Copyright Office should recognize a broad exemption for all classes of works where the circumvention was engaged to make a fair use of the work. Fair use rights are as important in the digital environment as they are in traditional space and necessary to achieve balance in the law.

Comments supplied by the copyright industry recommending no limitations be placed on the DMCA's circumvention ban undermine Congress' express intent in instructing the Copyright Office to rectify the danger and adverse impact it foresaw at the Act's inception. Particularly, comments supplied by Time Warner, Sony, and the MPAA refuse to acknowledge the potential dangers inherent in granting such broad rights to control creative expression.

Additionally claims suggesting that copyright holders are unwilling to distribute their works in electronic form in the absence of strong technological protection measures ignore the numerous authors and composers who are currently taking advantage of the popular and nonrestrictive MP3 format to achieve super distribution of their works and reach new audiences. Many new business models are being created that do not rely upon the traditional property model, and the imposition of protection measures "required" by the traditional copyright industry interfere with the emerging models that rely upon super distribution

Time Warner's (commonly mis-used) example that fair use would not permit someone to break into a book store to steal a book is a misleading and irrelevant example. If a person has already paid for the right to view an e-book or DVD when they purchased it, she is not breaking into a third-party's property in order to access it, as Time Warner's example asserts. Rather, she may need to break through a protection measure in order to view that e-book or DVD on her particular operating system. A person reverse engineering a DVD that she purchased (her property) is not at all analogous to the breaking and entering into a third-party's store to access the work - one is clearly fair use the other is clearly theft.

Time Warner also points to the Content Scrambling System (CSS) used to prevent DVDs from playing on unsanctioned players. Time admits that the strategy for CSS protection is to restrict use and exercise control even after access is authorized: "Other technological measures, such as CSS, carry certain obligations to restrict copying and further distribution of content once access is authorized." (Time Warner Comment, page 3). But granting such absolute protection is dangerous and not within the ambit of copyright's objective. CSS and other schemes which attempt to grant copyright holders the right to dictate the terms of fair use to the public, hardly seem very fair or supportable by copyright law principles.

Time also admits that DVDs are a unique medium and their introduction, "provided much information that could not be included in VHS tapes." (Time Warner Comment, page 4). Considering the uniqueness and unavailability of the works in other formats, an inability to circumvent DVDs to make fair use of them renders the privilege meaningless, despite the DMCA's explicit language and commitment to support fair use rights in an electronic environment. Time assures that no "proper uses" will be hampered, but what Time considers "proper" is not the same as what a federal judge would consider fair and thus legal. Granting the copyright industry the right to determine what uses are "proper" and therefore authorized, grants extremely broad and unprecedented rights over access and use of information.

Sony's comment warns that any rulemaking exemption to the DMCA's prohibition against circumvention will jeopardize the US's obligations under the WIPO treaty. However, US copyright law provided for adequate protection for copyrighted works prior to its adoption of the WIPO treaty using traditional copyright infringement legal theories. In actuality, the US had granted among the strongest protection for intellectual property in the world prior to WIPO. Recognizing the need for additional exemptions will allow the US to maintain strong and adequate protection of IP globally, but lead the world in recognizing the need for balance and to protect free expression, fair use, and continue to fuel innovation.

In summary, the Copyright Office should heed the advice of the library associations, the cryptographers, the non-proprietary software developers, academics, and the civil liberties groups and construe the DMCA narrowly to provide adequate protections for the interests (other than the copyright industry) represented in the copyright bargain. Therefore, all classes of works must be exempt from the general circumvention prohibition when the purpose for the circumvention is to engage in a lawful fair use of a work. The copyright holder's right of access must also be limited by a First Access Rule guided by the wisdom of copyright's traditional First Sale Rule. Copyright's design in a digital world must continue to balance the competing interests between authors, publishers, and the pubic fairly and in light of copyright's stated objectives to promote the progress of arts and useful sciences.

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)

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IN THE 152nd ISSUE OF EFFECTOR (now with over 23,000 subscribers!):

Changes at EFF

EFF Past and Present

EFF in Transition

EFF Tomorrow

Ace Attorney Enters Battle Over DVDs

Civil Liberties Group Pairs with Renowned First Amendment Lawyer Martin Garbus in the Fight for Free Expression on the Internet

EFF Reply Comments to Copyright Office on DMCA Rulemaking

[Introduction]

Digital Equivalent of First Sale Rule - "First Access" Rule

Right to Make Digital Fair Use

Response to Copyright Industry Comments

Administrivia