EFFector       Vol. 15, No. 7,       March 8, 2002     editors@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 206th Issue of EFFector:

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A Bad Law and a Sneaky Process

Electronic Frontier Foundation ACTION ALERT

(Issued: Friday, March 8, 2002 / Updated: Tuesday, March 12, 2002 /
Expires: Friday, March 22, 2002.)


When Senator Fritz Hollings (D-SC) held his hearings last week, he thought he'd be setting the stage for slipping the Security Systems Standards and Certification Act (SSSCA) back onto the legislative fast track. The SSSCA was the bill that would have given Hollywood a veto on the design of new technologies in order to "secure" copyrighted material. The far-reaching bill would have crippled the American technology industry in response to hysterical entertainment execs, flushing away consumer rights and dumping innovation down the same drain.

Senator Hollings' idea was to bring a bunch of Hollywood executives together with technology industry execs to show that all the players agreed with Hollings' plan to implement a mini-SSSCA that gives Congress control over the specifications for all digital video technologies.

What he got instead was a gutsy speech from Intel co-founder Leslie Vadasz, who told Congress that his industry shouldn't be treated like a munition. Vadasz was the sole voice of reason in those hearings, saying things that were patently obvious to anyone with a smidge of tech know-how, but his words provoked a torrent of vitriol from Hollings and his crew of studio heads, who hung Vadasz out for the press as a thief who represents some shadowy technologists' conspiracy to steal business out from underneath the entertainment industry.

Vadasz was the only technology industry representative with the intelligence and integrity to speak up on behalf of the public interest and consumer and business freedom. Civil liberties organizations and the general public were definitely not welcome at Senator Hollings' rights-management jamboree.

With Congress greatly influenced by Hollywood's financial clout, our only hope of seeing justice served and our interests represented is through brave technology industry execs like Leslie Vadasz. We're writing to him on behalf of the EFF to let him know that he's not alone in this fight, but he needs to hear it from Intel customers, too.

What YOU Can Do Now:

Contact Your Legislators:

Let your Senators and Representatives in Congress know that you oppose the SSSCA and similar legislation, regardless of medium, and that they should do likewise. For information on how to identify and contact your legislators, see EFF's "Contacting Congress" factsheet at:

Sample Letter:

Here's the template that you can use as to send your thank-you notes to Intel. Feel free to crib from it, or to improvise.

Dear Mr. Vadasz,

I am writing today to applaud your bravery at the hearings before the Senate Commerce Committee last week in DC. It is heartening to see an innovative technology company standing up for its customers in the face the over-reaching demands of the entertainment industry. Thank you for fighting the entertainment industry's attempts to undermine our fair use rights and harm our economy by hobbling your industry with burdensome, nonsensical regulations that protect their bottom line at the expense of your own.

[Insert your own history with Intel here, for example:

I'm not a big corporate customer with a million Intel chips in my data center, but I am a loyal consumer whose laptop and desktop are both Intel Inside, whose last six computers have been powered by your chips. My 802.11 card comes from Xircom, another Intel company, and I imagine that as the years go by and you folks keep on speeding up your processors that I'll keep on buying newer, fancier machines that grant me access to an ever-more bountiful harvest of new software, services, communities and information.]

Please keep up the good work -- don't let Hollywood take away your right to innovate and my right to use my equipment as I see fit.


[Your name;
include full address for maximum effectiveness]

Who to Contact:

Leslie Vadasz
Executive Vice-President
Intel Corp.
2200 Mission College Blvd.
Santa Clara CA 95052
c/o tom.marchok@intel.com

Activists Around the World

This alert is primarily for U.S. residents. However, this issue is of importance globally, so keep an eye out in your own jurisdiction for related matters you can act on. Many jurisdictions around the world are considering legislation similar to the U.S. DMCA and SSSCA.


Saving the Entertainment Industry from Itself -- Again

Technologists have always saved the entertainment industry from itself. From Marconi's telegrapher-reviled radio to Jack Valenti's campaign against the VCR, the entertainment industry has always fought to keep new technologies out of the marketplace. Again and again, new technologies have generated fresh millions for the labels and studios and publishers, and again and again, they've come back to bite the byte that feeds them, blustering in front of lawmakers for the right to control what technologists can build in the privacy of their own garages.

But this time, they've gone too far. The movie studios have cooked up a Congressional fire-drill whose objective is nothing less than total control over the computer and electronics industry. Senator Hollings' stalled one-law-to-rule-them all, the reviled SSSCA, is still lurking in the wings. In the meantime, the entertainment industry is intent on sneaking the SSSCA past Congress with a series of technology-specific "mini-SSSCAs."

Their opening salvo is a seemingly innocuous pitch to "protect" digital TV signals (coming to every TV near you by 2006, if the FCC gets its way) by legislating the specifications for TVs, VCRs, PVRs and other devices that sit between your antenna/cable and your eyeballs.

These specifications will allow studios to control the way you use content, on the equipment you've bought and paid for. Studios are seeking the power to specify whether you can record their programs, how long those recordings will be viewable and whether you can make a copy of the recordings. In order for this plan to work, "non-compliant" technology, whether software, hardware, or otherwise, will have to be swept off the market. SSSCA redux.

Never mind that such a scheme will advantage foreign manufacturers -- who will remain free to build "noncompliant" products that do more and cost less -- in a down economy where U.S. electronics, software and computer companies are fighting for their lives. Never mind that this will inevitably slow the pace of innovation and increase costs for consumers. Never mind that such measures are unduly restrictive and defeat fair uses, limiting your ability to invent new uses for your electronics. (Who'd have imagined the fantastic capacity for grandmothers to use VCRs to create family histories of appearances on broadcast news programs?)

Intel Steps Forward

Leslie Vadasz, one of the founders of Intel, had the chips to show up at Senator Fritz Holling's hearings last week and let Congress know that Intel, an Amercian company that pours $13.5 billion dollars into the U.S. economy every year, wants the freedom to independently negotiate the specifications for its equipment with the studios, without Congressional intervention.

This attitude is something we need to encourage! Senator Hollings conducted his hearings as a private discussion between the studios and the gadget companies, without any representation from consumers or even civil liberties organizations. The closest thing we have to an advocate in these critical proceedings are the electronics, computer and software companies.

EFF has the credibility to catch the ear of some of the key players in the technology world, and we're making sure that they know that we're behind them on this.

But we can't do it alone: You're their customers, and it's time you let them know that we don't want your rights managed out of existence by the MPAA, RIAA and other Hollywood lobbies, with their army of attack-lawyers.

Campaign for Audiovisual Free Expression:

This drive to contact Intel about their position on SSSCA is part of a larger campaign to highlight intellectual property industry assaults against the public's fair use rights, and what you can do about it.

Check the EFF Campaign for Audivisual Free Expression (CAFE) website regularly for additional alerts and news:


Followup letter from Vadasz to Hollings:

EFF Media Advisory: Senate Hearings on Dramatic New Digital Media Regulations (Feb. 27, 2002)

EFF Letter to the Senate Commerce Committee on the proposed SSSCA (Nov. 5, 2001)

EFF Action Alert on SSSCA (Sep. 21, 2001)

EFF "Intellectual Property - Video - HDTV/Digital Cable" Archive

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 websites in the world:


Fred von Lohmann, EFF Senior Intellectual Property Attorney
+1 415-436-9333 x123

Cory Doctorow, EFF Outreach Coordinator
+1 415-726-5209

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Adobe Assists U.S. Government in Elcomsoft Prosecution

Electronic Frontier Foundation Media Release

San Jose, CA, March 4 - In the first round of motions in its criminal defense, Moscow-based software company Elcomsoft asked Federal District Judge Ronald Whyte to dismiss criminal charges against it. Elcomsoft was charged under the U.S. Digital Millennium Copyright Act (DMCA) for creating and distributing software that could permit electronic book owners to convert the Adobe eBook format and make use of eBooks without publishers' restrictions.

Russian programmer Dmitri Sklyarov, who was also charged based on a complaint filed by Adobe Systems Inc. of San Jose, created the software while an employee at Elcomsoft. Adobe withdrew its support of the case against Sklyarov, and the government has suspended its prosecution of Sklyarov.

Elcomsoft asked the court to dismiss the case because the company distributed the software from Russia, and the DMCA does not apply outside the United States. Elcomsoft also explained that the government had not properly claimed a "conspiracy." The judge heard arguments from both sides and is expected to issue a ruling shortly.

In an interesting turnabout, Adobe Systems assisted the government in its prosecution by providing it with a declaration from one of Adobe's top engineers. "We're disappointed that Adobe continues to push for criminal prosecution of creators of tools that allow the public to exercise their rights," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "We were hopeful that, having publicly withdrawn their support for throwing Mr. Sklyarov in jail, Adobe would not push the prosecution of his employer."

Two additional motions to dismiss by Elcomsoft, on constitutional grounds, are set to be heard before Judge Whyte on April 1, 2002.

On February 4, 2002, EFF filed an amicus brief in the Elcomsoft case supporting Elcomsoft's position that the DMCA is unconstitutional because it impinges on protected speech and stifles technological innovation. A group of over 35 law professors also filed an amicus brief opposing the law.


EFF amicus brief in U.S. v. Sklyarov/Elcomsoft case:

Frequently Asked Questions (FAQ) on Sklyarov/Elcomsoft case:

Other documents related to U.S. v. Sklyarov/Elcomsoft case:

Related media coverage:
  http://www.wired.com/news/politics/0,1283,50832,00.html   http://news.com.com/2100-1001-851418.html

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Judge Delays Decision on Betamax VCR Defense

Electronic Frontier Foundation Media Release

Los Angeles - U.S. District Court Judge Stephen Wilson today delayed ruling on whether the noninfringing uses of the Morpheus peer-to-peer software product should shield it from a copyright lawsuit filed by 28 major entertainment companies.

Streamcast Networks, creators of the Morpheus software, had asked the court to rule in favor of the technology on the basis of the "Betamax defense" -- the principle that a technology capable of noninfringing uses cannot be banned simply because some people may use it to infringe copyrights. The judge stated that it was too early to rule on this question, deciding instead to set an accelerated trial schedule with a jury trial beginning on October 1, 2002.

"I am truly pleased that, unlike many of the cases where new technologies have been attacked by entertainment companies, we will have the chance to make our case before a jury of our peers," said Steve Griffin, CEO and President of Streamcast, the company which also maintains the MusicCity.com website.

The Electronic Frontier Foundation (EFF), along with the law firm of Wilson, Sonsini, Goodrich & Rosati, represents Streamcast. Andrew Bridges, partner at Wilson Sonsini and lead attorney in the case, said, "While we are disappointed that the judge thought our motion was premature, we look forward to renewing it and also welcome the prompt resolution of the case before a jury."

"There is an important principle at stake here," said Fred von Lohmann, EFF Senior Intellectual Property Attorney, "Morpheus, as a technology that has numerous noninfringing uses, should be legal for the same reasons that VCRs, photocopiers, mp3 players, and CD burners are legal."

Morpheus software users currently access a broad variety of materials, including public domain texts from Project Gutenberg, "shareware" programs like the WinZip file compression software, films from the Prelinger Archive, music videos from Lil'Romeo and others distributed with permission by J!VE Media Technologies, and live concert recordings authorized by musicians.

Streamcast also cited the Napster case, noting that the court held Napster liable based on Napster's operation of a centralized file-indexing service, but it never held Napster liable for, or enjoined, creation or distribution of its software. In its ruling on Napster, the 9th Circuit warned, "To enjoin simply because a computer network allows for infringing use would, in our opinion, violate Sony and potentially restrict activity unrelated to infringing use."

On October 2, 2001, twenty-eight of the world's largest entertainment companies sued Streamcast, the Nashville-based developer of the leading P2P file-sharing program Morpheus, for the infringing actions of users of its product (MGM et al v. Grokster et al, Case No. 01-CV-8541 SVW).


For this release:

Documents related to Metro-Goldwyn Mayer v. Grokster case:

U.S. Supreme Court ruling in the Betamax case, Sony Corp. of America v. Universal City Studios, Inc.:

9th Circuit Court of Appeals decision in RIAA v. Napster:

Related music publisher lawsuit against MusicCity:

EFF Campaign for Audiovisual Free Expression:

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The Electronic Frontier Foundation <http://www.eff.org>, along with Andrews and Kurth, L.L.P. <http://www.aktechlaw.com/> and Polycot Consulting L.L.C. <http://www.polycot.com/>, will co-host a party during the South by Southwest Interactive Festival in Austin, Texas. EFF's Cory Doctorow will be on hand, along with former EFF-Austin leaders Ed Cavazos (currently with Andrews and Kurth, L.L.P.) and Jon Lebkowsky (currently with Polycot Consulting L.L.C.).

The party will be held at Austin's great El Sol y La Luna, one of the 50 best Hispanic restaurants in the U.S. (per Hispanic Magazine). Festivities will begin around 8:30pm CST Monday, March 11. El Sol y La Luna is located at 1224 S. Congress Avenue, Austin, TX 78704. Free munchies, lemonade, tea (and sangria while it lasts, then cash bar) - and a happenin' crowd!

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