EFFector, Vol. 13, No. 9; Sep. 30, 2000

EFFector Vol. 13, No. 9 Sep. 30, 2000 editor@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 157th ISSUE OF EFFECTOR (now with over 25,400 subscribers!):

Hollywood Continues to Dismantle Fair Use Rights in Digital World

The Federal Communications Commission (FCC) issued a ruling on Sep. 18 that allows Hollywood to require the manufacturers of digital VCRs, high-definition televisions, cable set-top boxes, and related equipment, to implement copy restriction technology into the devices.

Hollywood's latest attack on civil liberties limits the public's ability to make fair use of digital programming by imposing restrictive licensing schemes on the device manufacturers. Just as they impose a CSS license on the makers of DVD players that forbids any recording functionality to the consumer, Hollywood now wants to impose such a scheme on digital TVs, VCRs and other viewing and recording equipment.

The U.S. Supreme Court stated plainly in the Betamax case that recording programs for later viewing in the privacy of the user's home is a noncommercial use permitted by the fair use doctrine. By inserting instructions into the digital programming stream that are obeyed by the hardware, the studios are able to control the public's ability to save or copy programming. Since the devices will only permit the consumer to copy the content that the studios code as copyable (not likely to be much, if anything), the public's fair use rights would effectively be extinguished in the digital television realm.

EFF submitted Sep. 7, 2000 comments to the FCC pursuant to its original Notice of Proposed Rule Making:

FCC Sep. 18, 2000 Declaratory Ruling (& Further Notice of Proposed Rule Making)
; INCLUDES INSTRUCTIONS ON HOW TO SUBMIT COMMENTS - ACT TODAY AND DO SO! (Deadline: Nov. 15, 2000.):

Do Not Undermine Your Own Rights!

Preface

Several EFF staffers recently accepted an invitation to meet with members of the Secure Digital Music Initiative (SDMI) to discuss technical discrepancies between EFF's portrayal of SDMI-compliant devices/SDMI's current specifications and to open a dialog about the civil liberties concerns EFF has expressed regarding this technology. EFF would like to thank the SDMI representatives for an informative and thoughtful dialog exploring the technological and social issues surrounding this attempt to create a secure environment for the distribution of digital music.

Continuing the Boycott

The diligent efforts of SDMI to create a technology that secures content while allowing some potential to make personal copies is impressive. EFF, however, can not soften its stance against SDMI and continues to encourage hackers to boycott the "Hack SDMI Challenge" on the basis that the technology fundamentally restricts fair use, is anti-competitive and ignores previous lessons learned by the software industry.

Technical Background

SDMI is attempting to create a technical standard that will place a permanent watermark on digital content, starting with music, that will be used to strictly control its public use. At the core of SDMI's specifications is the requirement that SDMI-protected content can never exist in an unprotected state. Content containing an SDMI-compliant watermark will even retain its protection in an analog form, since the watermark is made part of the audio signal.

Under SDMI's specifications, content providers will have the power to code their content with a set of usage rules that will govern how consumers may use their music. These rules will then instruct the SDMI-compliant device as to the number of times content may be reproduced, if any.

Restricting Fair Use

SDMI compliance allows content providers to eliminate critical fair use rights, such as excerpting portions of music files in high quality audio and possessing multiple copies of music files that are not disabled. A school orchestra director can be prevented from providing students with musical excerpts through SDMI-compliant devices. Journalists with such restrictions can also be kept from making multiple copies for news stories. People who want to use content for parody or satirical purposes can be silenced, not able to disseminate their views through an SDMI-compliant architecture. Rap artists can also be severely limited from reusing the material of other artists without permission from the record companies. People can be kept from making backup copies of purchased content. Also, SDMI compliance gives content holders the ability to circumvent the "First Sale" doctrine: the right to actually own instead of simply licensing purchased content. Under SDMI specifications, content holders get to make determinations related to all of these rights.

SDMI states that its technology allows for unlimited copies of content. This statement is only true in a limited number of instances, however. When you already own a CD and have a working copy of that CD in your collection, an SDMI-compliant device will allow you to create unlimited crippled copies (crippled in that they now have a watermark and are copy restricted). If you download the music from the Internet instead of buying the CD, though, the content provider has complete discretion to limit the number of copies that can be made. While the record companies, who own the majority of the content, could set this number very high, that is quite unlikely!

What the good folks at SDMI do not seem to understand is that fair use is a right, not a privilege. Requiring people to get permission from content holders to criticize their work is an unreasonable (and we would argue unconstitutional) burden on their ability to exercise their free speech rights. Permitting unlimited analog copying is not an adequate solution, in that restricting protected speech to lesser quality technologies does not satisfy the First Amendment. Furthermore, EFF fears that anyone who circumvents SDMI's copy protection mechanisms or the digital rights management schemes enforced by SDMI will be opening themselves up to a lawsuit under the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).

The Anti-Competitive Nature of SDMI

If SDMI were merely an alternative music distribution scheme that offered artists a choice of protecting their works, as SDMI portrays itself, EFF would welcome it into the marketplace of ideas. However, when over 90% of the world's music content holders are together creating this standard, there is no room for legitimate competition. Everyone from artists to hardware manufacturers to consumers will be required to use SDMI standards if they want access to the vast collection of materials controlled by the recording industry.

The creation of SDMI as an organization has also given content holders a convenient scapegoat around which they can mandate public policy while maintaining an illusion of fairness. SDMI's policy has been to wash its hands of any potential abuse on the part of content holders. SDMI claims to simply set up an architecture in which content holders are later free to choose the usage rules. What they fail to point out is that SDMI and the content providers are the same people. When they step out from behind the thin curtain of SDMI, content providers will set the rules by which the world's public must passively listen to their music without the opportunity to speak back.

Lessons from the Past

The computer industry learned a decade ago that copy-protecting all software was not an acceptable model for consumers. The software industry has almost universally embraced open models of software creation and distribution, like the open source movement. With consumers already demonstrating their desire to own unrestricted copies of their favorite music, one would think that the music industry would take notice of the software industry's hard-earned wisdom and put forth similar models of music distribution. Clearly, some artists who are engaging in alternative models are already receiving attention (and downloads!)

Don't Hack Away Your Rights!

EFF again urges anyone with the technical expertise to compete for the "up to" $10,000 prize to refrain from doing so and to continue telling SDMI--and your friends, relatives and colleagues--that you are participating in this boycott and why.

If you are a hacker, reverse engineer, digital audio expert, cryptographer or other targeted by SDMI's invitation, refrain from giving SDMI free consulting on how to hack away at your rights. Please:

If you are not a tech expert but are a user of digital music technology, you too can play a role:

For More Information:

Media Advisory

BayFF Explores Internet Naming Body

Barbara Simons, Emerson Tiller and Karl Auerbach Gear Up for ICANN Board Elections

WHO: Electronic Frontier Foundation, with Barbara Simons, Emerson Tiller and Karl Auerbach; plus intermission music provided by UKUSA of VirtualRecordings.com

WHAT: "BayFF" Meeting on ICANN Elections
WHEN: Thursday, October 5, 2000, at 7:30PM
WHERE: Stanford Law School, room 290
       Crown Quadrangle, Stanford University
       559 Nathan Abbott Way
       Stanford, CA 94305-8610 USA
       +1 650 723 2465
       (See DIRECTIONS below.)

In honor of its 10th Anniversary of defending civil liberties online, EFF presents a series of monthly meetings to address important issues where technology and policy collide. These meetings, entitled "BayFF," kicked off on July 10th and will continue throughout the year. The upcoming BayFF will explore the global election to select five of the nineteen directors of the Internet Corporation for Assigned Names and Numbers (ICANN), a U.S. corporation contracted to manage the Internet's address assignment. Candidates Barbara Simons, Emerson Tiller and Karl Auerbach will discuss the issues in the election and the concerns raised by monitoring groups over the manner in which it's been organized. The election, which closes on October 10th, is the first attempt to a hold a global election on the Internet.

Barbara Simons was ACM President from July 1998 until June 2000. ACM is the oldest and largest scientific and educational computer society in the world, with about 80,000 members internationally. Prior to becoming ACM President, Simons founded and chaired ACM's U.S. Technology Policy Committee (USACM), and the ACM Committee for Scientific Freedom and Human Rights. Simons was elected Secretary of the Council of Scientific Society Presidents (CSSP) in 1999, and she has been on the CSSP Board since 1998. She has been a member of the U.C. Berkeley Engineering Fund Board of Directors since 1998. Simons is a Fellow of ACM and of the American Association for the Advancement of Science.

Simons earned her Ph.D. in computer science from U.C. Berkeley; her dissertation solved a major open problem in scheduling theory. She became a Research Staff Member at IBM's San Jose Research Center (now Almaden), where she did research on scheduling theory, compiler optimization, and fault tolerant distributed computing. Simons currently serves on the President's Export Council's Subcommittee on Encryption, and she had been a member of the Information Technology Working Group of the President's Council on the Year 2000 Conversion.

Emerson Tiller is a professor at the University of Texas at Austin where he co-directs the Center for Business, Technology and Law. Dr. Tiller researches, writes, and teaches about Internet issues, including those relating to the ICANN and the Internet domain name system. He has received grants to study Internet issues from the National Academy of Science and the Society for Information Management. He has published in the most prestigious academic journals in his field, including the Yale Law Journal, the Columbia Law Review, the Journal of Law and Economics and the Journal of Strategic Information Systems.

As editor of the publication Internet Law and Business, Dr. Tiller reviews, summarizes, and comments upon the major ICANN decisions involving domain name disputes. He received his math and law degrees from Indiana University, and his Ph.D. from Berkeley. Dr. Tiller is also the founder of icannVote.com, a public information website explaining ICANN issues and assisting in registration of ICANN members.

Karl Auerbach is senior researcher in the Advanced Internet Architecture group in the Office of the Chief Strategy Officer at Cisco Systems. Mr. Auerbach is presently engaged in research projects aimed at reducing the costs associated with installing, operating, troubleshooting, and managing networks. His recent work has also included real-time transport of high quality audio and video over the net, content management, IP multicast, and quality of service. In addition to his technical work, Mr. Auerbach has been an attorney in California since 1978. He is currently a member of the Intellectual Property Section of he California State Bar. Mr. Auerbach's work on Internet technology started in the early 1970's. He has been a long-time member of the Internet Engineering Task Force (IETF), has founded both Epilogue Technology Corporation and Empirical Tools and Technologies, Inc. and has been closely involved with several other startups. He is the co-founder of the Boston Working Group and has been involved in the issue of Internet governance for several years.

You can subscribe to receive future BayFF annoucements. To subscribe, email majordomo@eff.org and put this in the text (not the subject line): subscribe bayff.

The Electronic Frontier Foundation (http://www.eff.org) 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 Web sites in the world.

For more information on ICANN

Contact:

Directions:

Take the US-101 South, towards San Jose.
Take the Embarcadero Rd./Oregon Expwy. exit.
Keep LEFT at the 1st fork in the ramp.
Keep LEFT at the 2nd fork in the ramp.
Keep RIGHT at the 3rd fork in the ramp.
Merge onto Oregon Exwy.
Stay straight to go onto Page Mill Rd.
Turn RIGHT onto El Camino Real/CA-82.
Turn LEFT onto Serra St.
Turn LEFT onto Campus Dr E.
Turn RIGHT onto Alvarado Row.
Turn LEFT onto Nathan Abbott Way.

Take US-880 South towards San Jose.
Take the CA-84 West/Decoto Rd. exit towards Dumbarton Br.
(about 20mi. south of Oakland)
Keep RIGHT at the fork in the ramp.
Merge onto CA-84 West and cross bridge
Turn LEFT onto Willow Rd./CA-114.
Take the US-101 South ramp towards San Jose.
Merge onto US-101 S.
Take the Embarcadero Rd./Oregon Expwy. exit.
Keep LEFT at the 1st fork in the ramp.
Keep LEFT at the 2nd fork in the ramp.
Keep RIGHT at the 3rd fork in the ramp.
Merge onto Oregon Exwy.
Stay straight to go onto Page Mill Rd.
Turn RIGHT onto El Camino Real/CA-82.
Turn LEFT onto Serra St.
Turn LEFT onto Campus Dr E.
Turn RIGHT onto Alvarado Row.
Turn LEFT onto Nathan Abbott Way.

Take US-101 North towards San Francisco.
Take the Embarcadero Rd./Oregon Expwy. exit.
Keep RIGHT at the fork in the ramp.
Merge onto Oregon Exwy.
Stay straight to go onto Page Mill Rd.
Turn RIGHT onto El Camino Real/CA-82.
Turn LEFT onto Serra St.
Turn LEFT onto Campus Dr E.
Turn RIGHT onto Alvarado Row.
Turn LEFT onto Nathan Abbott Way.

[Not yet available; we may be able to get directions and post them at this event's entry in the BayFF event list at http://www.eff.org/bayff if/when available.]

EFF Press Release -- Sep. 21, 2000

Constitutional Scholar Adds Prestige & Expertise to Leading Cyber-Rights Group

The Electronic Frontier Foundation (EFF) is delighted to announce eminent legal scholar Lawrence (Larry) Lessig's acceptance of our invitation to join the EFF Board of Directors.

Lessig is a Professor of Law at the Stanford Law School. He was the Berkman Professor of Law at Harvard Law School. From 1991 to 1997, he was a professor at the University of Chicago Law School. He graduated from Yale Law School in 1989, and then clerked for Judge Richard Posner of the 7th Circuit Court of Appeals, and Justice Antonin Scalia on the Supreme Court. Lessig teaches and writes in the areas of constitutional law, contracts, comparative constitutional law, and the law of cyberspace. His book, "Code, and Other Laws of Cyberspace," is published by Basic Books. In 1999-2000, he was a fellow at the Wissenschaftskolleg zu Berlin, Germany. Lessig is a monthly columnist for "The Industry Standard" magazine, a boardmember of the Red Hat Center for Open Source, and a member of the National Commission on Society, Culture and Community (U. Penn.) This year he was named one of the "100 Most Influential Lawyers" by the National Law Journal, and among the "25 Top eBiz Leaders" by Businessweek.

"I have been a long time admirer of this organization, the first to understand that 'architecture is politics." I am extremely happy to join its board," Lessig said regarding his coming on to the EFF Board.

EFF Board Chairperson Brad Templeton said, "the EFF exists to try to understand civil rights issues as the world moves online. We looked around and doubt there is anybody studying and writing about this topic at a level beyond that of Larry Lessig, so naturally we wanted him to join."

Lessig is a prolific speaker and writer on Internet-related legal and societal issues, paritcularly censorship, intellectual property, ethics, jurisdiction and sovereignty, and open platforms vs. monopolization. He has been a long-time and well-known participant in online legal forums, such as CYBERIA-L and Lexis Counsel Connect, and has been highly influential in the continual debate surrounding the intersection of law and technology, both in informal public discussions and in a long line of law review articles and other publications. For more information, see his home page at:

EFF Executive Director Shari Steele expressed excitement at Lessig's joining the EFF Board. "Larry Lessig is indisputably one of the most respected attorneys working on Internet and computer issues. We are so excited to have him working with us as a member of EFF's board of directors. His understanding of how the First Amendment translates into a networked environment will be invaluable to our work protecting civil liberties in cyberspace."

EFF's other Boardmembers are entrepreneur Brad Templeton (Chair), writer John Perry Barlow (Vice-Chair and Co-Founder), entrepreneur John Gilmore (Co-Founder), U. Penn. professor David Farber, investment banker Giles McNamee, and U.C. Berkeley professor Pamela Samuelson.

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. The organization remains focused on civil liberties and civil responsibilities in cyberspace and continues to offer legal advice, referrals, and a large archive of current and historical online civil liberties information.

Founded in 1990, the Electronic Frontier Foundation (www.eff.org) is a public-interest organization that actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported nonprofit organization and maintains one of the most-linked-to Web sites in the world.

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) http://www.eff.org

Editor: Stanton McCandlish, Online Communications Director/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 & articles may be reproduced individually at will.

to majordomo@eff.org, which will send you a confirmation code and then add you to a subscription list for EFFector (after you return the confirmation code; instructions will be in the e-mail).

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