EFFector, Vol. 14, No. 37; Nov. 28, 2001

EFFector Vol. 14, No. 37 Nov. 28, 2001 editors@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 197th Issue of EFFector:

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Judge Denies Scientists' Free Speech Rights

EFF Argues Digital Music Case

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, November 28, 2001

Trenton, NJ - The Electronic Frontier Foundation (EFF) Wednesday represented a team led by Princeton Professor Ed Felten in the first skirmish of a case challenging the Digital Millennium Copyright Act (DMCA). Without addressing important First Amendment considerations and after less than 25 minutes of debate, a plainly hostile Judge Garrett Brown of the Federal District Court in Trenton, New Jersey, dismissed the case. EFF intends to appeal.

"This judge apparently believes that the fact that hundreds of scientists are currently afraid to publish their work and that scientific conferences are relocating overseas isn't a problem," noted Robin Gross, EFF Intellectual Property Attorney. "This decision is clearly contrary to settled First Amendment law, and we're confident that the 3rd Circuit Court will reverse it on appeal."

The court granted two separate motions to dismiss the case, one brought by the Department of Justice (DOJ) and the second by private defendants led by the Recording Industry Association of America (RIAA).

"Since the government and industry could not even agree on what the DMCA means, it is not surprising that scientists and researchers are deciding not to publish research for fear of prosecution under the DMCA," said EFF Legal Director Cindy Cohn. "Scientists should not have to ask permission from the entertainment industry before publishing their work."

Professor Felten and a team of researchers from Princeton University, Rice University, and Xerox discovered that digital watermark technology under development to protect music sold by the recording industry has significant security vulnerabilities. The recording industry, represented by the Recording Industry Association of America (RIAA) and the Secure Digital Music Initiative (SDMI) Foundation, threatened to file suit in April 2001 if Felten and his team published their research at a conference. They subsequently issued a press release denying having threatened the researchers. On behalf of the research team, EFF then filed a lawsuit seeking a clear determination that publication and presentation of this and other related research is speech protected under the US Constitution both at this conference and at other conferences in the future.

Together with USENIX, an association of over 10,000 technologists that publishes such scientific research, Princeton Professor Edward Felten and his research team had asked the court to declare that they have a First Amendment right to discuss and publish their work, even if it may discuss weaknesses in the technological systems used to control digital music. The DMCA, passed in 1998, outlaws providing technology and information that can be used to gain access to a copyrighted work.

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/

EFF Asks Court to Eject DVD Case

Widespread DeCSS Code No Longer a 'Secret'

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, November 28, 2001

San Jose, CA - The Electronic Frontier Foundation (EFF) Wednesday asked a California Superior Court judge to dismiss a case involving a DVD descrambling program called DeCSS because that program is widely available on the Internet and cannot be considered a trade secret. The DVD Copy Control Assocation (DVD CCA) filed the lawsuit against Andrew Bunner and others in December 1999, alleging that Web publishers of DeCSS unlawfully misappropriated trade secrets.

The case, officially known as DVDCCA v. Bunner, could set an important precedent in how far trade secret law can affect First Amendment free speech rights.

Building on a November 1st victory when the California Court of Appeal reversed the court's preliminary injunction confirming that the publication of DeCSS is protected by the First Amendment, Bunner and his legal team Wednesday asked the court to recognize that - because it is widely available - the information contained in DeCSS cannot be a "secret" protected under trade secret law.

California trade secret law prohibits injunctions once a trade secret becomes generally known to the public. Noting that Bunner found DeCSS in the public domain and simply republished it, the motion also relies on declarations from five leading academic scientists in the area of computer who confirm that DeCSS is not a secret.

Based on these facts, EFF told the court that "DVD CCA seeks to put the Court in the impossible position of trying to put the genie back into the bottle."

DeCSS is a controversial program that unscrambles the information on DVDs. It was created as part of a project to develop a DVD player for computers running the Linux operating system. DeCSS was published on the Internet in 1999 by a Norwegian teenager and quickly republished by hundreds of other publishers around the globe. In early 2000, DVD CCA filed the lawsuit against hundreds of Web publishers seeking to ban its publication. Only one of the publishers, Andrew Bunner, has been subject to the jurisdiction of the California court. If Bunner's motion is successful, the other publishers of DeCSS will also be free from the chilling effects of this California lawsuit.

Andrew Bunner is represented in the Superior Court by Richard Wiebe of San Francisco, 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.

Court Rules Internet Publication of Software Not Free Speech

Upholds Publication Ban on DVD Descrambling Code

Electronic Frontier Foundation Media Advisory

For Immediate Release: Wednesday, November 30, 2001

New York - The 2nd Circuit Court of Appeals Wednesday dealt a sharp blow to Internet speech, upholding a lower court decision banning a magazine from publishing the computer program DeCSS.

In making the decision, the court rejected pleas from 46 intellectual property professors, 17 top computer scientists, the Association for Computing Machinery, the American Library Association, the ACLU, and the Reporters Committee for Freedom of the Press, among others.

The case, Universal v. Reimerdes (also known as the 2600 Case), arose out of the publication of the computer program known as DeCSS on the 2600 Magazine website. DeCSS was first published by a Norwegian teenager in 1999 and subsequently republished by thousands of people around the world. The program allows users to decrypt DVDs and was originally developed to aid an international project to develop a DVD player for computers running the Linux or GNU/Linux operating system. 2600 Magazine, along with the Village Voice, the San Jose Mercury News, and the Wall Street Journal, covered the story of the program's development and publication. The major movie studios sued 2600 Magazine, claiming that the Digital Millennium Copyright Act (DMCA) bans publication of the program.

"The 2nd Circuit decision is confusing," noted EFF Legal Director Cindy Cohn. "On the one hand the court strongly agreed with us that computer programs are protected expression. On the other hand it found that, when they are published on the Internet, the fact that recipients might easily misuse a computer program justifies a complete ban."

The DMCA, while passed as an attempt to prevent copyright infringement, has become a strong tool of the entertainment industry to stifle speech. In addition to censoring 2600 Magazine, the DMCA has frightened researchers all over the world from publishing their research, including scientists from Princeton University, Rice University, and Xerox PARC in the Felten case. The Department of Justice is using the DMCA to prosecute computer programmer Dmitry Sklyarov for distributing a program that allowed fair uses of e-books and demonstrated the weaknesses in the security of electronic book reading software.

"The EFF had argued that the DMCA should be read to only prohibit publication of computer programs when those programs are intended to help copyright infringers," noted EFF Intellectual Property Attorney Robin Gross. "The 2nd Circuit rejected the intent argument, instead upholding a complete ban on publication of these programs."

Even more surprising was the Court's endorsement of liability for merely making a hypertext link to material banned by the DMCA. "The Court's standard provides for liability for knowingly publishing a program 'with the purpose of disseminating' it," noted EFF Senior Staff Attorney Lee Tien. "Since most publishing is done with the purpose of sharing the information published, this standard creates a huge potential liability for linking."

"I can't say I am surprised about the decision," noted Emmanuel Goldstein, publisher of 2600 Magazine, "but this is an important case for Internet speech and I will carefully consider whether to take it to the U.S. Supreme Court."

EFF Update on Sklyarov Case

This is an update from the status conference held Monday in the case against Dmitry Sklyarov (a visiting Russian programmer arrested in the US for allegedly violating the US Digital Millennium Copyright Act by writing, in Russia, software that is legal in Russia), and Elcomsoft (his Russia-based employer). As expected, the only issue discussed at the hearing was the setting of dates for pre-trial motions. The issues were divided into two categories: DMCA (possible claims are unconstitutionality including vagueness, the First Amendment, and lack of constitutional authority) and non-DMCA issues (possible issues are jurisdiction, a bill of particulars, and the conspiracy charge).

The non-DMCA dates are:
Jan. 14, 2002, the opening brief is due,
Feb. 11, the opposition (govt.) brief is due,
Feb. 25, Dmitry's reply brief is due,
Mar. 4, 2002, hearing.

The DMCA dates are:
Jan. 28, the opening briefs and amici are due,
Mar. 4, the opposition (govt) brief is due,
Mar. 18, the reply brief is due
Apr. 1, hearing

Assuming the case is not dismissed because of the motions, there will be a hearing to set a trial date on Apr. 15, 2002.

EFF Needs Your Help This Holiday Season!

Thank you for your ongoing support of the EFF. Without it, we couldn't be effective in protecting online rights. We are asking you to further your support with a supplemental holiday donation.

The current climate is very difficult for civil liberties indeed, many of the rights that EFF and others have fought so hard to secure are in jeopardy of disappearing. EFF is fully engaged in preserving existing rights and in fighting new legislation that would potentially curtail individual liberties. These efforts along multiple fronts press hard upon our resources, and we need your support this holiday season to ensure that a rational voice for individual rights continues to be heard. Security and civil liberties are not mutually exclusive. We must come up with solutions that create a secure infrastructure but do not place limitations on our freedoms.

Your contributions support these and other EFF efforts to defend civil liberties in the digital age. We depend on your support to be effective over 80% of our annual budget comes from concerned individuals such as yourself. Won't you please take a minute and give yourself and your loved ones the gift of freedom this holiday season? You can make your donation online at http://www.eff.org/support. If preferred, you can send a check or use Paypal or E-Gold. We accept Visa, Mastercard, American Express and Discover credit and debit cards.

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Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
editors@eff.org

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