EFFector, Vol. 14, No. 1; Feb. 7, 2001

EFFector Vol. 14, No. 1 Feb. 7, 2001 editor@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 161st ISSUE OF EFFECTOR (now with over 26,300 subscribers!):

Electronic Frontier Foundation Press Release -- Feb. 7, 2001

Free Speech Advocates Join Forces to Protect Anonymous Speech in Cyberspace

The Electronic Frontier Foundation and The Liberty Project Request Court Protection of Internet Authors' Identities

For Immediate Release

Contact:

San Francisco -- In a case involving both free speech and privacy rights online, the Electronic Frontier Foundation (EFF) and The Liberty Project asked a California court today to quash a subpoena issued by Rural/Metro Corp. seeking to reveal the identities of two people who posted comments allegedly critical of Rural/Metro on a Yahoo! message board. The groups argue in their brief that Rural/Metro's attempt to reveal the identities of the individuals, known collectively as the Does, will intimidate critics and inappropriately silence constitutionally protected anonymous speech.

Rural/Metro, a provider of contract fire and ambulance services headquartered in Arizona, served the subpoena on Yahoo! Inc. seeking the identity of four speakers who posted anonymous messages on the Yahoo!'s message board devoted to discussion of Rural/Metro. Without offering a single message as evidence -- or, indeed, a single fact to support its allegations -- Rural/Metro alleged in its complaint that Does posted "false, misleading and/or deceptive information" about Rural/Metro, that Does may possibly sometime in the future reveal unspecified trade secrets belonging to Rural/Metro, and that Does may be current or former employees.

EFF and the Liberty Project have agreed to represent two of the Does who contacted them about the subpoena pro bono. In the brief filed today, the groups argue that the Court should adopt the same test currently used to determine whether to compel identification of anonymous sources in libel litigation. Under that test, the Court would first have to determine that the plaintiff, in this case Rural/Metro, has a valid claim, and then balance the harm to the anonymous speakers against the plaintiff's need to discover the identity of the speaker.

"Anonymous speech has been protected in this country since the writing of the Federalist Papers. If the courts do not step in to protect this cherished right in cyberspace, we will lose it," said Lauren Gelman, EFF's director of public policy. EFF legal director Cindy Cohn added, "Powerful entities are learning that they can use the courts to silence their critics. When individuals choose to participate in a public debate anonymously, they should not have to worry that their identities will be divulged to anyone who doesn't like what they have to say."

According to Nicole Berner, counsel for the Liberty Project, "many people converse on the Internet anonymously unaware that they have become the subject of a subpoena seeking their identity before it is too late to quash the subpoena. Our hope is that the Court in this case will set a standard according to which Internet service providers and others will be able to determine when it is and isn't appropriate to disclose information that may lead to the identity of an anonymous speaker."

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, 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:
http://www.eff.org
EFF sees its action in this case as part of its larger mission to protect speech online and recently filed two other briefs on behalf of anonymous speakers.

The Liberty Project is a nonprofit organization dedicated to the preservation of civil liberties. Heeding Thomas Jefferson's warning that "the natural progress of things is for liberty to yield and government to gain ground," the Liberty Project was founded to promote individual liberty against encroachment by all levels of government. The organization espouses vigilance over regulation of all kinds, as well as restriction of individual liberties, especially the guarantee of free speech upon which all other liberties depend. In addition to its educational work, the Liberty Project offers legal assistance to those whose civil liberties are jeopardized.

Plaintiff Rural/Metro Corp. is represented by Hartford Brown of the law firm Seyfarth Shaw, located in San Francisco, CA, (415) 397 2823.

EFF Press Relase -- Jan. 19, 2001

Publisher Appeals Injunction Against News Story

EFF & 2600 File Strong Appeal in DeCSS/DVD Case

For Immediate Release

Contact:

NEW YORK: On behalf of a magazine and its editor, Internet civil liberties group the Electronic Frontier Foundation (EFF) today asked a federal appeals court to overturn a lower court's interpretation of the Digital Millennium Copyright Act (DMCA) as creating an unconstitutional restraint on free expression.

EFF appealed a lower court's injunction against 2600 Magazine preventing it from publishing and linking to information about how DVDs work as part of its news coverage of the debate surrounding the encryption applied to DVDs. The banned information is a computer program called DeCSS that decrypts the data contained on DVDs.

In January 2000 eight major motion picture studios sued the magazine and its publisher under the "anti-circumvention" rules of the DMCA. The District Court in the Southern District of New York decided that those rules prevent 2600 Magazine from publishing or even linking to DeCSS because it can be used to circumvent the encryption placed on DVDs. CSS is designed to prevent copyright infringement, but the Court held that publishing DeCSS was illegal even when no infringement had occurred and despite the fact that it was being used for legitimate, even constitutionally protected purposes.

Emmanuel Goldstein, Editor-in-Chief of 2600 Magazine said, "The anti-circumvention provisions of the DMCA threaten the media's ability to point the public to truthful information. The First Amendment has always protected such publication."

EFF argues that the District Court did "great violence" to both the First Amendment and the Copyright Clause to the U.S. Constitution when it censored the magazine's speech. EFF Legal Director Cindy Cohn said, "the District Court decision puts the anti-circumvention rules of the DMCA on a collision course with the Constitution. We are asking the 2nd Circuit to prevent this by interpreting the statute consistent with the First Amendment and settled Copyright law."

The appeal argues, first, that the District Court erred in failing to apply the strict First Amendment scrutiny that is traditionally required before forcing news magazines to take down news stories. Second, it argues that because DeCSS is required in order for people to make fair use of movies, the injunction preventing its publication by 2600 Magazine is unconstitutional because it prevents people from exercising their constitutional rights with regard to DVDs. Examples of such fair uses include movie critics and academics who wish to use snippets of movies for criticism and parody, video researchers who seek to catalogue images in movies for digital searching, cryptographers who wish to make scientific study of the encryption on DVDs and reverse engineers who wish to make competing DVD players.

The appeal further argues that the justification that the District Court used to deny full constitutional protection to the magazine, -- that the computer code may be "functional" when used by others -- is not a legitimate basis on which to lessen First Amendment protection for those who publish it. "Courts cannot silence the messenger," Cohn noted, "simply because others might misuse the message."

DeCSS was authored by a Norwegian teenager, Jon Johanson, as part of an effort to develop an open source DVD player for the Linux operating system that would compete with the studios' monopoly on DVD players.

Next Friday, numerous amici briefs supporting 2600 Magazine's right to publish and link to this information will be filed with the 2nd Circuit, including briefs from the ACLU, the Digital Future Coalition, librarians, journalists, computer scientists, law professors, educators, and crytographers. The studios' reply brief is due on February 19 and oral argument before the 2nd Circuit is expected in April.

EFF is defending individual rights in the DVD cases as part of its Campaign for Audiovisual Free Expression (CAFE). CAFE was launched in June 1999 to address complex social and legal issues raised by new technological measures for protecting intellectual property.

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 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.

Background

Motion Picture Associatio of America (MPAA) members, beginning at the tail end of 1999, have filed suit under that controverial Digital Millennium Copyright Act (DMCA) to prevent the online availability of a free program called DeCSS which cracks the extremely weak encryption (CSS) "protecting" commercial DVDs from being played on computer DVD drives that run under operating systems that are not "approved" by the movie industry, including Linux. The MPAA has alleged that DeCSS is a piracy tool, even though DVDs can be easily pirated without DeCSS, and DeCSS is required for Linux users to be able to play their legally purchased and owned DVDs on their own computers. The case at hand, officially Universal v. Remeirdes named several defendants, including 2600, for posting or even linking to DeCSS, alleging violation of DMCA provisions against distribution of copyright infringement tools. A similar case in Connecticut was also filed, and a very different case (based on state trade secret law) was filed by MPAA members (some the same as in the NY and CT cases, others different) against hundreds of plaintiffs. MPAA members even went to far as to have Norwegian law enforcement authorities (probably wrongfully) arrest the 16-year-old co-author of DeCSS, on more far-fetched copyright infringement-related accusations.

EFF believes that the DMCA harms - nearly eliminates - all of the public's fair use rights, and makes criminals of people doing perfectly legitimate things. Our Campaign for Audiovisual Free Expression (CAFE) advances the following principles in response to the DMCA and related intellectual property holder "land grabs" against your rights:

These facts and the rights the uphold are already a long-standing feature of American intellectual property law. The new DMCA law turns most of it on its head, and allows monied industries to attack underfunded individuals, publishers and organizations with near impunity, for doing what they have a right to do in the first place.

Founded in 1990, The Electronic Frontier Foundation (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 Websites in the world.

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

EFF Press Release -- Jan. 26, 2001

Diverse Groups Unite to Defend Freedom of Expression Against DMCA

EFF/2600 Magazine Receive Wide Public Support in DeCSS Appeal

For Immediate Release

Contact:

NEW YORK: Eight Amici or "friend of the court" briefs were filed today in support of the Electronic Frontier Foundation's appeal of an injunction against 2600 Magazine, which banned the media site from publishing and linking to information under the Digital Millennium Copyright Act (DMCA) last August.

Warning the 2nd Circuit Court of Appeals of the danger to free expression posed by the DMCA, diverse groups including the American Civil Liberties Union, Association for Computing Machinery Law Committee, American Library Association and others asked the appellate court to overturn a lower court's ruling. Last year, a district court in New York barred 2600 Magazine from publishing or linking to DeCSS, the computer code that was at the heart of a controversy the magazine was covering. Other groups filing briefs with the appellate court include journalists, law professors, educators, cryptographers, computer programmers and academics -- all warning the appellate court of the impingement upon First Amendment freedoms that result from the lower court's dangerous interpretation of the DMCA's anti-circumvention provisions and broad elimination of fair use rights.

Stanford Law professor Lawrence Lessig, who co-sponsored an amicus brief with NYU's Yochai Benkler, explained the harm to freedom of expression posed by the lower court's broad granting of rights to the movie studios under the DMCA. "The First Amendment limits the scope of copyright. It should also limit the scope of code that protects copyright. That is the core issue in this case," Lessig said.

A sponsor of the computer programmers' brief, noted Princeton University computer science professor Edward Felten, stated, "the lower court's interpretation of the DMCA would effectively shut down research in some areas of computer security, by banning the publication of research results in those areas. Ironically, it has already prevented me from publishing research results that could be used to strengthen the protection of copyrighted works," explained the scientist who recently cracked RIAA's encryption scheme for music, the Secure Digital Music Initiative (SDMI).

Speaking on behalf of the nation's librarians, Miriam Nisbet of the American Library Association stated, "the lower court's decision seriously harms the public's ability to make legitimate, fair use of digital works. As the founders of our country and Constitution recognized, free speech and fair use are critical components of a democracy."

According to EFF's Legal Director Cindy Cohn, "the combination of a broad alliance of amici briefs, each targeting a specific issue and pointing out the dangers and flaws in the lower court's ruling, presents a powerful argument that the public's rights have been trampled in a variety of ways by the lower court's careless handling of civil liberties under the DMCA."

On January 19, 2001 EFF and 2600 Magazine filed their appeal brief with the 2nd Circuit, requesting the lower court's ban be lifted and the DMCAs anti-circumvention provisions be overturned on First Amendment grounds. The movie studios must file their reply brief by February 19th, and oral arguments are expected before the 2nd Circuit in April.

EFF is defending individual rights in the DVD cases as part of our Campaign for Audiovisual Free Expression (CAFE). CAFE was launched in June 1999 to address complex social and legal issues raised by new technological measures for protecting intellectual property.

Read the Amici Briefs Supporting EFF's Appeal of the Injunction Against 2600 Magazine:

Amicus Brief Sponsors: Libraries & public interest groups -- American Civil Liberties Union (ACLU),
Digital Future Coalition (DFC), American Library Association (ALA), American Research Libraries (ARL), Music Library Association (MLA)

Issues Raised: Dangerous First Amendment implications in district court's ban on linking and publishing information on information about DVD copy restrictions. The lower court's interpretation of the DMCA broadly eliminates the public's fair use rights through its banning of fair use tools.

Amicus Brief Sponsors: Journalists and publishers -- Online News Association, Reporters' Committee for Freedom of the Press, Newspaper Association of America, Student Press Law Center, Wired, Pew Center on the States, Silha Center for Media Ethics and Law, College of Communications - CSU, Fullerton

Issues Raised: The chilling effect the district court's ban on linking to DeCSS has had on the press' ability to report truthful information of important public concern. Holding media liable for readers' possible future illegal acts, as the lower has done, does great damage to freedom of press and expression.

Amicus Brief Sponsor: ACM (Association for Computing Machinery) Law Committee

Issues Raised: The lower court's elimination of traditional reverse engineering rights under the DMCA imperils science, innovation, and free expression.

Amicus Brief Sponsors and Authors: Noted law professors Lawrence Lessig of Stanford and Yochai Benkler of NYU

Issues Raised: The lower court's narrow interpretation of the DMCA cannot withstand constitutional scrutiny under the First Amendment. Congress effort to control DeCSS is actually an unconstitutional effort to control speech.

Amicus Brief Sponsors: Numerous expert law professors -- Keith Aoki, Ann Bartow, Paul Schiff Berman, Stuart Biegel, Thomas F. Blackwell, James Boyle, Dan L. Burk, Julie E. Cohen, Thomas F. Cotter, Rod Dixon, Eric B. Easton, Michael M. Epstein, Christine Haight Farley, Susanna Frederick Fischer, William W. Fisher III, A. Michael Froomkin, Laura N. Gasaway, Llewellyn Joseph Gibbons, Laurence R. Helfer, Peter Jaszi, Dennis S. Karjala, Raymond Shih Ray Ku, Mary LaFrance, Michael Landau, David Lange, Mark A. Lemley, Joseph P. Liu, Lydia Pallas Loren, Michael J. Madison, Charles R. McManis, Michael J. Meurer, Eben Moglen, Craig Allen Nard, Ruth Gana Okediji, L. Ray Patterson, Mark R. Patterson, Malla Pollack, David G. Post, Margaret Jane Radin, J.H. Reichman, David A. Rice, Michael L. Rustad, David E. Sorkin, John R. Thomas, Sarah K. Wiant, Jonathan L. Zittrain

Issues Raised: DMCA is unconstitutional because Congress went beyond its power in enacting the DMCA, which has also placed restrictions upon the First Amendment that are too great to withstand constitutional scrutiny.

Amicus Brief Sponsors: Various leading computer programmers & academics -- Dr. Harold (Hal) Abelson, Dr. Andrew W. Appel, Dr. Dan Boneh, Dr. Edward W. Felten, Dr. Robert Harper, Andy Hertzfeld, Dr. Brian Kernighan, Dr. Marvin Minsky, Dr. James Morris, Dr. P.J. Plauger, Dr. John C. Reynolds, Dr. Ronald Rivest, Dr. Avi Rubin, Dr. Barbara Simons, Dr. Eugene H. Spafford, Richard Stallman, and Dr. David S. Touretzky

Issues Raised: Computer source code is creative expression worthy of full First Amendment protection and the lower court erred greatly by creating a new category of illegal speech.

Amicus Brief Sponsors: Numerous noted cryptographers -- Dr. Bruce Schneier, Dr. Steven M. Bellovin, Dr. Matt Blaze, Dr. David Wagner, Dr. Dan Boneh, Dr. Ian Goldberg, Dave Del Torto, Frank Andrew Steven.

Issues Raised: The lower court's ruling threatens the important science of cryptography, which relies upon an open exchange of information.

Brief Author: Jennifer Granick of Stanford Law School's Center for Internet and Society

Brief Sponsors: Educators who rely on fair use rights --
Dr. Siva Vaidhyanathan, Mary Wallace Davidson, Ernest Miller, Christina Olson Spiesel

Issues Raised: Impingement upon the educational uses of intellectual property that results from the lower court's elimination of fair use rights under its ruling.

Brief Authors: Edward Cavazos and Gavino Morin from Cavazos, Morin, Langenkamp & Ferraro LLP

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

Background

Motion Picture Association of America (MPAA) members, beginning at the tail end of 1999, filed suit under the controversial Digital Millennium Copyright Act (DMCA) to prevent the online availability of a free program called DeCSS which cracks the extremely weak encryption (CSS) "protecting" commercial DVDs from being played on computer DVD drives that run under operating systems that are not "approved" by the movie industry, including Linux. The MPAA has alleged that DeCSS is a piracy tool, even though DVDs can be easily pirated without DeCSS, and DeCSS is required for Linux users to be able to play their legally purchased and owned DVDs on their own computers. The case at hand, officially Universal v. Reimerdes named several defendants, including 2600 Magazine, for posting or even linking to DeCSS, alleging violation of DMCA provisions against distribution of copyright infringement tools. A similar case in Connecticut was also filed, and a very different case (based on state trade secret law) was filed by MPAA members (some the same as in the NY and CT cases, others different) against hundreds of plaintiffs, in California. MPAA members even went so far as to have Norwegian law enforcement authorities (probably wrongfully) arrest the 16-year-old co-author of DeCSS, on more far-fetched copyright infringement-related accusations.

These facts and the rights they uphold are already a long-standing feature of American intellectual property law. The new DMCA law turns most of it on its head, and allows moneyed industries to attack underfunded individuals, publishers and organizations with near impunity, for doing what they have a right to do in the first place.

Administrivia

The Electronic Frontier Foundation
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http://www.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.

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IN THE 161st ISSUE OF EFFECTOR (now with over 26,300 subscribers!):

EFF & Liberty Project defend anonymous poster against third-party identity supoenas to ISPs

Electronic Frontier Foundation Press Release -- Feb. 7, 2001

Free Speech Advocates Join Forces to Protect Anonymous Speech in Cyberspace

The Electronic Frontier Foundation and The Liberty Project Request Court Protection of Internet Authors' Identities

For Immediate Release

Contact:

EFF & 2600 file appeal of DMCA injunction in NY DVD/DeCSS lawsuit

EFF Press Relase -- Jan. 19, 2001

Publisher Appeals Injunction Against News Story

EFF & 2600 File Strong Appeal in DeCSS/DVD Case

For Immediate Release

Contact:

Background

Diverse groups ask appellate court to overturn NY DVD/DeCSS injunction

EFF Press Release -- Jan. 26, 2001

Diverse Groups Unite to Defend Freedom of Expression Against DMCA

EFF/2600 Magazine Receive Wide Public Support in DeCSS Appeal

For Immediate Release

Contact:

Read the Amici Briefs Supporting EFF's Appeal of the Injunction Against 2600 Magazine:

Background

Administrivia