EFFector Vol. 14, No. 20 Aug 16, 2001 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
EFFector Vol. 14, No. 20 Aug 16, 2001 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
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[Para una versión español de esta alarma, que puede ser distribuida libremente, vaya a este URL
(For a Spanish version of this alert, which may be freely distributed, go to this URL):
While Russian graduate student Dmitry Sklyarov potentially faces five years in prison under the first criminal prosecution of a controversial new US law, the Digital Millennium Copyright Act (DMCA) passed at the request of Hollywood in 1998, its backers are now busily exporting overseas its dangerous legal theories of excessive copyright protection at the price of civil liberties. Worldwide public intervention is immediately necessary to restore freedom of speech as a value promoted by free societies.
The Free Trade Area of the Americas (FTAA) treaty process, which is under executive power, works to establish trade agreements between 34 countries in the Western hemisphere including the US. FTAA nation-signatories pass legislation in each of their national forums that conforms with the treaty's principles. Currently the group is negotiating language to include in an international treaty between the 34 countries that deals with enacting new copyright rules, among other issues. The FTAA organization is considering treaty language that mandates nations pass anti-circumvention provisions similar to the DMCA, except the FTAA treaty grants even greater control to publishers than the DMCA.
The public must intervene to express disapproval of the FTAA's proposed anti-circumvention measures in order to correct this trend in copyright law. FTAA is currently accepting public feedback on the proposed treaty language until August 22. Contact the U.S. Trade Representative (or your country's representative) and urge the removal of the anti-circumvention measures from incorporation into the final FTAA treaty. Already existing theories of liability under US copyright law adequately protect the legitimate interests of copyright holders without the need to impose anti-technology restrictions on the entire public. Rather than adopt even more draconian measures that ban socially beneficial technologies in a fantasy of protecting copyrights, such as the proposed anti-circumvention measures to FTAA attempts, foreign countries should learn from the disastrous US experience with the DMCA. They should wisely steer away from such over-reaching measures.
EFF calls upon the citizens of the 34 countries affected by this treaty, including the US, to submit comments by August 20 (22 at the latest) urging the group to remove the provisions from the treaty that outlaw the act of circumvention and forbid providing tools for circumvention of technological protection measures restricting use of copyrighted works. These measures violate the U.S. Constitution's guarantee of freedom of speech under the First Amendment, similar guarantees in other national constitutions and laws and in the UN Universal Declaration of Human Rights, since such tools are necessary to exercise lawful uses, including fair use. While protecting copyright is important, passing measures that also censor much lawful speech goes too far, without ever achieving its objective. The next meeting of the FTAA Negotiating Group on Intellectual Property Rights is Aug. 22 in Panama, and public comments will be most effective if received before this date. This means it should be mailed by Aug. 18 at the latest, in the US, and even sooner from other countries. (Unfortunately, the FTAA site does not provide mechanisms for Web-submitted comments.)
Comments, to be received by the FTAA organization by August 20, should be submitted to:
Gloria Blue, Executive Secretary, Trade Policy Staff Committee
Attn: FTAA Draft Text Release
Office of the U.S. Trade Representative
1724 F. St., NW, Fifth Floor
Washington DC 20508 USA
Non-US writers should also send a copy to their own country's intellectual
property government officials; list available at:
This is just an example. It will be most effective if you send something similar but in your own words.
Dear Ms. Blue, Trade Policy Staff Committee, and Negotiating Group on Intellectual Property Rights:
I write to express my grave concern regarding the draft FTAA treaty's extreme intellectual property provisions.
These measures, based on the US Digital Millennium Copyright Act (DMCA) give far too much power to publishers, at the expense of indivdiuals' rights. The DMCA itself is already under legal challenge in the US, has gravely chilled scientists' and computer security researchers' freedom of expression around the world for fear of being prosecuted in the US, and resulted in the arrest of a Russian programmer. The FTAA provisions, which serve no one but American corporate copyright interests, are even more overbroad than those of the DMCA.
These provisions would require signatory nations to pass new DMCA-style laws that ban, with few or no exceptions, software and other tools that allow copy prevention technologies to be bypassed. This would violate the U.S. Constitution's guarantee of freedom of speech under the First Amendment, and similar guarantees in other national constitutions and laws and in the UN Universal Declaration of Human Rights, since such tools are necessary to exercise lawful uses, including fair use, reverse engineering, computer security research and many others.
I urge you to remove these controversial and anti-freedom provisions from the FTAA treaty language. The DMCA is already an international debacle. Its flaws - and worse - should not be exported and forced on other countries.
Sincerely,
[Your full name]
[Your address]
Non-US writers should mention their own country's constitution and/or laws protecting freedom of expression, of coruse.
Copies may also be sent by e-mail to some key people in the FTAA process:
kalvarez@ustr.gov (Kira Alvarez - Intellectual Property)
walter_bastian@ita.doc.gov (Walter Bastian - E-Commerce)
Non-US contacts available at:
Much like the DMCA, the current draft of the FTAA agreement forbids the act of circumventing a "technological protection measure" that controls the use of a copyrighted work. It also bans making or providing tools that could help another to use a copyrighted work. Unlike the DMCA, however, the language currently proposed for the FTAA treaty doesn't include even a single exemption that would permit activities like lawful reverse engineering, protecting privacy, fair use rights, encryption research, and countless other reasons a person might need to override the publisher's controls. (And the DMCA only includes a few very narrow exemptions to the general ban on circumvention, but they have so far proven completely useless to everyone who has attempted to rely on them.)
Even though copyright law gives individuals rights such as fair use, the DMCA and FTAA's proposed anti-circumvention provisions outlaw all tools that are necessary to exercise those rights, effectively killing fair use in the digital age. These measures ensure works are prevented from taking their place in the public domain, denying the public what rightfully belongs to it under the law. The guarantees of free expression under the First Amendment, other constitutions & laws in other countries, and the United Nations Universal Declaration of Human Rights, rightly prevent publishers from having complete control over the way in which copyrighted works can be used. But the DMCA and its counterpart in the FTAA treaty ignore this principle and would grant publishing companies the power to turn individual rights into "product features" that can be disabled at the whim of the publisher.
Since its passage, the DMCA has thus far been used to: censor a journalist reporting on a controversial software program; attempt to squelch the research of a Princeton professor who discovered the vulnerabilities of the music industry's favored technology; and arrest a foreign computer programmer for developing software that allows lawful purchasers of electronic books to view them in ways not supported by a competitor's viewing software. Because it wishes to consistently abuse these powers throughout the world, rather than merely in the United States, Hollywood and the rest of the copyright industry are now attempting to export this legal regime throughout the world.
It is truly ironic that the United States, once the beacon for promoting the principles of freedom of expression, is now systematically infecting other countries with this dangerous public policy choice that will restrict more speech than any law before it. FTAA's anti-circumvention provisions represent US imperialism at its worst. They seek to impose restrictive laws on both the US and other countries, in order to prevent established US businesses from facing both domestic and foreign competition. These competitors would offer the public much better deals than these businesses wish to offer, which is why the small number of companies that control music, movie and book distribution seek to have these competitors outlawed. The anti-circumvention provisions' terrible effects on freedom of speech, scientific advancement, and actual computer security, as well as on public libraries and access to knowledge, are merely "incidental" damage, suffered by society for the benefit of these businesses.
To view the proposed FTAA treaty language, see:
For more information on the FTAA treaty process, see:
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
Will Doherty, EFF Online Activist / Media Relations
wild@eff.org
+1 415 436 9333 x111
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415 436 9333 x112
- end -
Lee Tien, EFF Senior Staff Attorney
tien@eff.org
+1 510-290-7131 (cell)
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415-637-5310 (cell)
Monica Ortiz, USENIX Press Liaison
monica@usenix.org
+1 415-990-5513 (cell)
Trenton, NJ - Seventeen of the world's top scientists today supported Princeton University Professor Edward Felten and his research team's challenge to the Digital Millennium Copyright Act (DMCA) on free speech grounds. Prominent academics, cryptographers, software programmers, and scientific conference organizers explained to a federal court the stifling effects of the DMCA on scientific research and freedom of expression.
The Electronic Frontier Foundation (EFF) represents the research team in a lawsuit filed June 6 asking a federal judge to declare that the scientists have a First Amendment right to publish their research both at the USENIX Conference in Washington, DC, and elsewhere. USENIX, fearful of threats that had been made against the organizers of the prior conference, has joined the suit.
In his latest declaration to the court, Professor Felten explained, "I understand that Defendants advocate an interpretation of the DMCA that would outlaw analysis of systems that might be used to control the use of copyrighted materials.... [S]uch an interpretation would effectively prevent analysis of critical systems, and so would have a disastrous effect on education, research, and practice in computer security."
He further commented, "Not only in computer science, but also across all scientific fields, skeptical analysis of technical claims made by others, and the presentation of detailed evidence to support such analysis, is the heart of the scientific method. To outlaw such analysis is to outlaw the scientific method itself."
The case arose after scientists from Princeton University, Rice University, and Xerox tried to publish research that reveals flaws in the recording industry's control systems for digital music at an April 2001 conference. The recording industry claimed that a 1998 law called the DMCA prohibited the presentation of the research paper. In a series of e-mails and conference calls to the researchers, their universities, and conference organizers, recording industry attorneys intimidated the researchers into withdrawing their paper from the April conference. Hours after the paper was withdrawn, representatives of the Recording Industry Association of America (RIAA) issued a press release claiming that they had never intended to prevent scientific speech.
Last month, the RIAA asked the court to dismiss the current lawsuit after sending a letter to the court stating that it would allow the conference to go forward, so no case or controversy exists for the court to decide. The EFF legal filing today rebuts that claim and reveals the chilling effect felt throughout the scientific community since Congress passed the DMCA and the recording industry started threatening researchers.
In legal declarations supporting the researchers, scientists worldwide expressed concern about traveling to the United States, where the FBI has already arrested and jailed a programmer for allegedly writing software or conducting research that could help someone use a copyrighted work in ways disallowed by the publisher.
Niels Ferguson, a prominent Dutch cryptographer who recently discovered major flaws in a commercial high-definition video system, told the court, "Despite the fact that I performed all the work in Amsterdam, I could face arrest if I visit the US after my research had found its way into the jurisdiction. My research is silenced since I cannot talk about my scientific results to my colleagues and peers, as is now the case since the DMCA became law in the US. Scientific freedom is not only threatened under this law, it is demonstrably curtailed."
The DMCA prohibits providing information that other people may use to circumvent the technological protection measures placed on digital files. In this case, the recording industry developed watermark technologies to help control how consumers can use digital music.
Professor Felten's team discovered that it was easy to circumvent the technologies.
"The recording industry has done untold damage by their threats to Felten and the other researchers, their universities, and the conference organizers. The resulting chilling effect on the broader scientific community continues unabated," said Robin Gross, intellectual property attorney for EFF. "We on the Felten legal team will work to ensure that industry can no longer use the DMCA to threaten freedom of speech and scientific progress."
The eventual presentation of the Felten research team's
SDMI Challenge results, Aug. 15, 2001, USENIX Security
Conference, Washington DC, is available as an archived
webcast at:
Declaration of Professor Ed Felten (Princeton University):
Declaration of the USENIX Association:
Declaration of the Association for Computing Machinery (ACM):
Declaration of the Computing Research Association
(CRA):
Declaration of Prof. Andrew W. Appel (Princeton U.):
Declaration of cryptographer Matt Blaze (AT&T Laboratories):
Declaration of British programmer Alan Cox (Red Hat UK Ltd.):
Declaration of Scott Craver (Princeton U.):
Declaration of Howard Ende (General Counsel for Princeton U.):
Declaration of Dutch cryptographer Niels Ferguson (MacFergus BV):
Ferguson on the DMCA: "Censorship in action: Why I don't publish my HDCP results":
Declaration of John McHugh (general chair of the Information Hiding Workshop):
Declaration of computer security researcher Michael Reiter (Bell Labs/Lucent Technologies):
Declaration of cryptographer Bruce Schneier (Counterpane Internet Security):
Declaration of Asst. Prof. Dan Wallach (Rice U.):
Declaration of Min Wu (Princeton U.):
[More declarations coming soon.]
RIAA/SDMI April 2001 letter threatening Professor Felten
and his team:
Professor Felten's website:
Listen to an audio file of the press conference held when
the case was launched [MP3]:
EFF's & Professors' First
Amended Complaint:
EFF's & Professors' Original Complaint:
RIAA's Memorandum in Support of Motion to Dismiss [PDF file]:
EFF/Felten Opposition Brief against motion to dismiss:
For more information on the August USENIX Security
conference:
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/
The USENIX Association, an organization representing some
10,000 computer research scientists is dedicated to the
free exchange of scholarly information through its many
conferences and publications. See its website at:
http://www.usenix.org/
- end -
Lauren Gelman, EFF Public Policy Dir.
gelman@eff.org
+1 415-436-9333 x106 or +1 202-487-0420 (cell)
San Jose, CA - On Friday, August 10, attorneys from the Electronic Frontier Foundation (EFF) successfully defended the speech rights of two anonymous Yahoo! message board posters. A California State court found that the right of Internet posters to speak anonymously outweighed a company's desire to unmask their identities.
The case involves a subpoena issued by Pre-Paid Legal Services, Inc., of Oklahoma (PPLS) requesting the identity of eight posters on Yahoo!'s "Pre-Paid" message board, an online forum for discussions related to the company. EFF represents two of the J. Does PPLS subpoenaed to unmask their identities as part of a dispute between PPLS and another (identified) person.
PPLS argued that it needed the Does' identities to determine whether the Internet posters had to comply with a voluntary injunction preventing former sales associates who work for a competitor from revealing PPLS's trade secrets. EFF senior staff attorney Lee Tien argued that the messages cited by PPLS indicated only that the Does were critical of the company and how it treats its associates. Revealing the identity of these anonymous speakers would give PPLS the opportunity to punish the anonymous posters simply for criticizing the company.
Ruling from the bench, the Honorable Neil Cabrinha of the Santa Clara County Superior Court quashed the subpoena to Yahoo! requesting the posters' identities. Judge Cabrinha agreed with EFF that the messages did not appear to violate the injunction, and therefore the First Amendment protection of anonymous speech outweighed PPLS's interest in learning the identity of the speakers.
"This is a great victory for anonymous speech," said EFF's Tien. "I believe Judge Cabrinha's ruling will signal other companies that judges will not permit corporate executives to abuse the courts in ferreting out their critics."
"EFF will continue to step in and fight for the right of individuals to speak anonymously," said Lauren Gelman, EFF's director of public policy. "We expect to see many similar decisions recognizing that First Amendment protections do not disappear just because someone chooses to speak online."
The documents filed in the case (PPLS v. Sturtz) are available at:
http://www.eff.org/Legal/Cases/PrePaid_Legal_v_Sturtz/
More information on the similar In re: 2TheMart.com case can be found at:
http://www.eff.org/Legal/Cases/2TheMart_case/
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/
- end -
The EFF wants to thank the folks at LabTam Finland
for their generous software
donation of their WinaXe product. WinaXe is a Windows program that
allows Windows to run as an Linux X-windows terminal. This allows the
Windows users to run Unix gui applications and even run an entire Unix
desktop on their laptop computers. By using this product our users can
run Windows and Linux at the same time and can cut and paste information
between the two operating systems. And a single Linux server provides
the desktop for all our Linux users. LabTam website:
The EFF appreciates companies like LabTam who make useful software and donate licenses to EFF. This helps us become more effective in our struggle to protect civil liberties.
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