EFFector, Vol. 14, No. 35; Nov. 7, 2001

EFFector Vol. 14, No. 35 Nov. 7, 2001 editors@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 195th Issue of EFFector (now with over 29,600 subscribers!):

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First Amendment Right to Publish Computer Code Upheld

Court Overturns Ban on Publication in Trade Secret Case

Electronic Frontier Foundation/First Amendment Project Media Release

For Immediate Release: Thursday, November 1, 2001

In a tremendous victory for freedom of speech on the Internet, a California appellate court today unanimously overturned a trial court's injunction banning dozens of individuals from publishing on their websites DeCSS computer code that unscrambles DVDs. Unscrambled DVDs may be played on any computer.

The appellate court held that a lower court judge violated the First Amendment rights of defendant Andrew Bunner in ordering Bunner and other publishers of the software to remove it from the web on a preliminary request by the major movie studios' DVD licensing organization, DVDCCA. Bunner had republished the software after learning about it on Slashdot News. The lower court enjoined Bunner from publishing DeCSS based on claims of trade secret misappropriation even though he found the program in the public domain and simply republished it.

"The court recognized that trade secrets do not trump the First Amendment rights of citizens to publish and discuss information readily available in the public domain," stated David Greene, Executive Director of the First Amendment Project who argued the appeal before the 6th District Appellate Court.

According to the court's ruling, "the California Legislature is free to enact laws to protect trade secrets, but these provisions must bow to the protections offered by the First Amendment." The court found that the injunction barring Bunner's publication of DeCSS "can fairly be characterized as a prohibition of 'pure' speech."

"In an era of expanding dubious legal claims by intellectual property owners that threaten to stifle speech and innovation, this decision paves the way for preserving liberty online by balancing legitimate restrictions with First Amendment guarantees," stated Robin Gross, an EFF intellectual property attorney handling the case.

The studios objected to DeCSS software, which programmers wrote in the fall of 1999 as part of an independent project to create a DVD player for the Linux operating system. In early 2000, DVDCCA filed this lawsuit against hundreds of Web publishers seeking to ban the publication of DeCSS. Santa Clara County trial court Judge William Elfving granted the request for a preliminary injunction on January 21, 2000, and ordered defendants to remove DeCSS from their personal websites. The case is expected to go to trial next spring before Judge Elfving.

Andrew Bunner was represented on appeal by David Greene and James Wheaton of the First Amendment Project, Allonn Levy of San Jose's HS Law Group, Tom Moore of Tomlinson Zisko Morosoli & Maser in Palo Alto, Professor Eben Moglen of Columbia University Law School, and Electronic Frontier Foundation attorneys Cindy Cohn and Robin Gross.

The U.S. 2nd Circuit Court of Appeals will likely decide soon a separate case in which EFF appealed an injunction barring 2600 Magazine's Editor-in-Chief Emmanuel Goldstein from publishing or linking to DeCSS under the Digital Millennium Copyright Act's anti-circumvention provisions. Dean Kathleen Sullivan of Stanford Law School argued that case on behalf of the EFF in May 2001.

About EFF:

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/

About FAP:

The First Amendment Project is a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition. FAP provides advice, educational materials, and legal representation to its core constituency of activists, journalists, and artists in service of these fundamental liberties and has a website at:
http://thefirstamendment.org/

Contact:

Electronic Frontier Foundation Media Release

EFF Defends MusicCity/Morpheus Peer-to-Peer Technology

Tests Hollywood's Control of Content Delivery Technology

Embargoed for Release on: Tuesday, November 6, 2001

Washington, DC - The Electronic Frontier Foundation (EFF) announced today that it has joined MusicCity's legal defense team in a crucial case testing the limits of Hollywood's power to control new technologies.

"This case is about the freedom of technologists to innovate and the public's right to communicate," said EFF Senior Intellectual Property Attorney Fred von Lohmann, slated to announce the EFF's entry into the case at a 12:30 PM Eastern press conference at the O'Reilly Peer-to-Peer and Web Services Conference, in the Chevy Chase Room of the Westin Grand Hotel.

29 of the world's largest entertainment companies have sued MusicCity, the Nashville-based developer of the leading peer-to-peer file-sharing product Morpheus, in federal court in Los Angeles. Morpheus is a file-sharing tool that allows users to connect with each other and share information of all kinds. The entertainment companies claim that MusicCity should be held responsible for the alleged copyright infringements committed by Morpheus users.

"Just as the entertainment industry tried to ban the VCR, now it aims to outlaw the technology that is the next killer app of the Internet," said EFF Intellectual Property Attorney Robin Gross.

In the early 1980s, the motion picture industry tried to outlaw VCRs by claiming that Sony should be held liable for the infringing activities of Betamax users. The U.S. Supreme Court rejected this effort to stifle innovation, holding that so long as the technology is "capable of substantial noninfringing uses," vendors can build and sell it without fear of copyright litigation from entertainment companies. The lawsuit against MusicCity will likely be the pivotal test for the Betamax rule in the Internet context.

"The question is whether Hollywood media powerhouses will be able to use copyright as a pretext for seizing control over technology development," said Andrew Bridges, attorney with the Silicon Valley law firm of Wilson, Sonsini, Goodrich & Rosati and lead defense counsel for MusicCity. "The landmark Betamax case taught the world that copyright ownership does not confer veto power over the development of technologies with varied uses, so long as those technologies are capable of substantial non-infringing uses. In the end, Hollywood learned how to profit from the new videotape recorder technology."

Peer-to-peer file-sharing technology platforms like Morpheus are not only capable of noninfringing uses, but are being used for noninfringing purposes today.

The case, captioned Metro-Goldwyn Mayer v. Grokster, No. 01-CV-8541 SVW, is before Judge Stephen V. Wilson, U.S. District Court Judge for the Central District of California in Los Angeles. Case documents also name as defendants Consumer Empowerment and Grokster, two companies that distribute peer-to-peer file-sharing software built on the same technology as Morpheus. No court dates have been set in the case.

About EFF:

About MusicCity:

MusicCity.com is the first file searching service to license the preview edition of Morpheus, a paradigm changing peer-to-peer enabling application. In development for over a year, the Morpheus application (client) allows users to search and find almost any type of digital file (audio, video, photos, reference data, reports, documents, etc.) through a secure peer-to-peer network powered by consumers and creators, not by corporate servers and corporate interests. MusicCity Networks has offices in Nashville, Tennessee, USA, and a website at:
http://www.musiccity.com/
[This information provided for reference only; EFF does not do product/service endorsements.]

Contact:

Call for Action - Safeguard Communications Privacy

Privacy Groups Seek Additional Organizational Signatories

Prime Minister Guy Verhofstadt
President, EU Council of Ministers
Brussels, Belgium

We write to you on behalf of a wide range of civic organizations in the United States and Europe to express our concern regarding the request of President Bush that the proposed EU directive on the protection of privacy in the electronic communications sector (COM(2000)385) be altered to allow for data retention regarding the communications of Europeans and consequently of Americans. While we support the President's efforts to take appropriate steps to reduce the risk of terrorism and to work with government leaders to protect public safety, we do not believe that this proposal is appropriate or necessary.

First of all, under United States law there is no similar obligation for data retention by telecommunications companies. US federal law recognizes a need to preserve data once a particular investigation is underway, but it does not create a general obligation for communication carriers to retain records on customers that are no longer required by the carriers. President Bush is asking European governments to impose obligations on European companies that would not be imposed on US companies.

Second, the European Privacy Commissioners and Members of the European Parliament have opposed efforts to create new data retention obligations. In the letter of 7 June 2001 to Mr. G�ran Persson, President of the Council of the European Union, the Chairman of the Article 29 Working Group wrote that "Systematic and preventive storage of EU citizens communications and related traffic data would undermine the fundamental rights to privacy, data protection, freedom of expression, liberty and presumption of innocence."

In a July 2001 report by the European Parliament Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, Committee Members made clear that restrictions to safeguard public security and conduct criminal investigations should be appropriate, proportionate and limited in time and that general or exploratory electronic surveillance on a large scale could not be allowed. The Members also noted that Member States should not have a general right to request whatever traffic and location data they wished without the authorities stating a specific reason as to why such information was needed, and that information should not be stored longer than was necessary for the transmission of data and for traffic management purposes.

Third, because communications data often moves between the United States and Europe, European data retention requirements would directly and adversely affect the privacy right sof Americans. There is a significant risk, if this proposal goes forward, that US law enforcement agencies will seek data held in Europe that it could not obtain at home, either because it was not retained or because US law would not permit law enforcement access.

Fourth, the retention of personal information that would otherwise be destroyed upon the completion of its intended use creates new privacy and security risks for citizens. Vast databases of personal data now include sensitive medical information as well as data revealing political opinions, religious and philosophical beliefs. These new retention requirements will create new risks to personal privacy, political freedom, and public safety.

Further, the privacy commissioners have recognized that one of the best privacy safeguards is to minimize the collection of personal data where possible. They have consistently affirmed that confidentiality of communications is one of "the most important elements of the protection of the fundamental right to privacy and data protection as well as of secrecy of communications", and that "any exception to this right and obligation should be limited to what is strictly necessary in a democratic society and clearly defined by law." A blanket retention of all traffic data for hypothetical criminal investigations and for a long period of time would not respect these basic conditions.

We note also that governments on both sides of the Atlantic have sought to make secret public information that would otherwise assist the public in understanding the threats it now faces. We do not believe it draws the proper balance in a democratic society for the activities of government to be concealed from public scrutiny while the private activities of citizens are made open to government.

Finally, we believe it is inconsistent with well established international norms for communications privacy, such as Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights, for governments to compel the retention of private information for surveillance purposes. Confidentiality of communication is a central tenet of modern democratic society. Proposals to reduce the privacy of citizens will undermine the strength of the democratic state.

We have contacted President Bush regarding our concerns. We respectfully urge you not to take any steps at this time that may reduce the privacy of citizens.

Letter from Article 29 Data Protection Working Party to Mr G�ran Persson, Acting President of the Council of the European Union, June 7, 2001
Available at:
http://www.statewatch.org/news/2001/jun/07Rodota.pdf

EU Data Protection Working Party Article 29, Opinion 7/2000 on the European Commission Proposal for a Dir. of the Eur. Parl. and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector of 12 July 2000 COM (2000) 385 (2 Nov. 2000), reprinted in M. Rotenberg, The Privacy Law Sourcebook, United States Law, International Law, and Recent Developments 437 (EPIC 2001)

Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, Report on the proposal for a European Parliament and Council Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector, July 13, 2001.

EFF Contest: Online Civil Liberties Impact of USA PATRIOT Act

You've been diligently reading all of those EFFectors and scouring the EFF website for those gems of information about topics such as online free speech, privacy, and intellectual property.

Well, here is your chance to test your knowledge and have some fun trying to win a prize!

A few lucky winners will receive recognition on the EFF contest web page and a vintage EFF T-shirt as a prize for being the first few to deliver the correct answers to the contest questions displayed at
http://www.eff.org/cgi-bin/contest/contest.html

Please note that those under 13 years of age and anyone employed by EFF are not eligible to participate. EFF thanks DMH for coding the contest Perl scripts. The contest will run for one week or until the next EFFector announcing the contest winners, whichever comes first.

It's a great way to learn about the work EFF does and a chance to win an EFF collector's item at the same time.

EFF Seeks Systems Donations

EFF is looking for PC systems donations with the following minimum requirements. Please don't offer junk computers because we already have those. ;-) Our immediate needs are below.

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Editors:
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Stanton McCandlish, EFF Technical Director/Webmaster
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