EFFector Vol. 15, No. 9a, March 29/31, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
EFFector Vol. 15, No. 9a, March 29/31, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
For more information on EFF activities & alerts: http://www.eff.org/
To join EFF or make an additional donation:
http://www.eff.org/support/
EFF is a member-supported nonprofit. Please sign up as a member today!
[This update has been merged into the archived copy of EFFector 15.09; thus, references to the previous two issues means 15.09 and 15.08, not 15.08 and 15.07.]
The previous two issues of EFFector have borne action alerts on digital music & media, and copyright. The contact information provided in both has been failing.
It is especially urgent that you contact these legislators as soon as possible - several days of activism have been effectively lost already because of communications problems on Capitol Hill. Your comments are doubly needed, to make up for what may seem to be citizen/consumer silence on the issues!
The Senate Judiciary Committee's Web-based comment form has stopped working.
Therefore, please fax your letters to the committee, at:
+1 202-224-9516
The House Judiciary Courts, Internet & Intellectual Property Subcommittee fax is not responding. The full committee majority's fax machine (+1 202-225-7682) is also refusing to pick up as of our most recent test.
The only options are to e-mail all of the subcommittee members with e-mail addresses:
howard.coble@mail.house.gov, cannon.ut03@mail.house.gov, john.hostettler@mail.house.gov, martin.meehan@mail.house.gov, john.conyers@mail.house.gov, howard.berman@mail.house.gov, zoe.lofgren@mail.house.gov, william.delahunt@mail.house.gov, tammy.baldwin@mail.house.gov, weiner@mail.house.gov, talk2bob@mail.house.gov, ninthnet@mail.house.gov
then fax to those with no e-mail address:
Hyde: +1 202-225-1166
Waters: +1 202-225-7854
Wexler: +1 202-225-5974
Bachus: +1 202-225-2082
Gallegly: +1 202-225-1100
Keller: +1 202-225-0999
Jenkins: +1 202-225-5714
Graham: +1 202-225-3216
or
(If you only have time to send one fax, send it to Hyde, one of the more powerful members of the full committee.)
Or, for those with little time to devote to this alert, fax to the committee minority's
fax number and hope that the minority and majority communicate well enough that our
activism is made known to both sides, which is dubious,
but better than nothing:
+1 202-225-4423
Full text of the Senate alert, including sample letter (updated):
Full text of the House alert, including sample letter (updated):
[the original is immediately below]
- end -
NOTE: The alert in the previous issue has been changed. It directed
EFFector readers to send comments opposing technology mandates to both
the House and the Senate. A House staffer has told us that the House
request for comments is limited to digital music issues, not DRM
and mandates more generally. A new alert about the House comments is
below, while the original alert, modified
to direct comments to the Senate only, is available at:
The U.S. House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property has requested public comment on digital music & copyright issues. Comments must be received by April 8, 2002, at the address listed below.
Let YOUR voice be heard on the "management" of your rights to digital music. It is crucial that Congress hear from you on these important issues in order to balance the money and pressure from Hollywood at a time when the law is still forming. Tell Congress that it's time to put the brakes on the copyright industry's whittling away of the public's rights under copyright law and the First Amendment. This may be the best chance available of convincing Congress to pull back from upholding copyright holders' interests above all others in digital music and digital media in general.
This request for comments is part of the Subcommittee's ongoing process of reviewing proposals and amendments concerning copyright in the digital environment.
Congressional staffers tell us that your letters will have the most impact if written in your own words, addressing concerns raised by digital music and copyright, such as those outlined in our sample letter below (and in more detail in the Background section at the end of this alert.)
IMPORTANT: Please do NOT simply forward our text to the subcommittee! We have been told by staffers working on this issue that form letters will not count for much if anything. The sample below is just a model to help give you ideas. Your letter can be long and detailed, it can be about your high-tech business's concerns, your issues as a consumer, your concerns as a programmer, musician, reviewer, vendor, etc., or it could be very short and simply advocate repeal of DMCA and clearer upholding of fair use rights because of the harm to consumers, researchers, publishers and software authors. So long as it's in your own words and you send it before the deadline.
Your letter should be sent to:
Hon. Howard Coble, Chair
Subcommittee on Courts, the Internet & Intellectual Property,
House Judiciary Comittee
howard.coble@mail.house.gov
fax: +1 202-225-3673
The submission deadline is April 8, 2002, 5pm (EST)
Dear Chairman Coble and Members of the Subcommittee:
I write to you today about the troubled future of digital music. The entertainment industry is attempting to lock down all access to and use of music, with questionably constitutional laws like the Digital Millennium Copyright Act (DMCA). These new powers would allow Hollywood to completely remove a whole spectrum of legal and legitimate fair uses of digital music and other digital media, with criminal prosecution hanging over the heads of anyone who attempts to bypass their "digital rights management" systems for perfectly legal purposes. We don't need Columbia Records, Disney, or Time-Warner managing our digital rights.
I urge you to seek and support immediate repeal of the Digital Millennium Copyright Act (DMCA) anticircumvention provisions. These controversial provisions outlaw the act of bypassing access controls that "protect" digital works and prevent fair, legal uses (including time and format shifting, making of backup copies, lending, resale and excerpting, among others). The DMCA outlaws making or providing any technology, including software and simple information, that could help another person to bypass access or use restrictions, even in the absence of any criminal intent or evidence of copyright infringement. These provisions have already been used to threaten legitimate, law-abiding scientists, game network programmers, and makers of eBook access software. The DMCA is anticompetitive and harmful to innovation, shielding in an coat of legal armor the entrenched entertainment industry's preferred but obsolete business model from any more-inventive competition.
The DMCA has also undermined the first sale doctrine, which has always allowed consumers to loan, resell, or give away their records, tapes and CDs. The first sale doctrine also protects public libraries from copyright liability for loaning music to the public. Copyright owners, using Internet "music rental" systems such as MusicNet and pressplay, are now "tethering" the music we have purchased to a particular computer, fundamentally undermining the first sale doctrine because the DMCA makes a criminalizes even fair use circumvention devices or software. I urge you to take steps to correct this problem.
In addition to fixing problems with the DMCA, I encourage you to support legislation such as the Music Online Competition Act (MOCA), H.R. 2724, which would level the competitive playing field for Internet webcasters. In addition, I urge you ensure that the ongoing copyright arbitration royalty panel (CARP) that is setting webcasting royalties leave room for small, noncommercial webcasters. The growing problem of "copy-protected" CDs should also be addressed. If I want to make a fair use copy of a CD I have purchased, I should be able to do so. And technology companies should be able to build the tools that would enable me to "fix" these malfunctional discs. The DMCA currently makes this impossible, and new legislation is about to make the situation worse. Please oppose such bills as Senator Hollings' S. 2048, that would mandate copy-protection in all future digital media devices. As a law-abiding citizen, I am outraged at the notion that the federal government would require my MP3 player or CD-ROM drive to punish me in advance for infringements committed by others.
Finally, please consider adopting legislation that will affirmatively guarantee my fair use rights in the digital music world. Copyright owners, with a mix of legislation, litigation, and unilateral "digital rights management" technologies, are apparently intent on rolling back my fair use rights and treating me by default as if I were a criminal. This is destroying the balance between the rights of the public and those of copyright holders. Please support a "digital consumer bill of rights" that will prohibit copyright owners from taking away more of my traditional fair use rights.
I am a user of digital music today and will be in the future. I'd like to retain the right to make backup copies, to format-shift from CDs to MP3s, to give a CD to friend or borrow one from a library, and all the other fair, legal uses that the industry's plan would take away from me. I am a legitimate user, not a pirate, and I should not be locked out of full access to and fair use of the music I have legal access to. I ask you in the strongest terms to help stop the intellectual property industry's "rights land-grab" by ensuring fair use is upheld, and by reining in the runaway DMCA.
Sincerely,
[Your name;
include full address for maximum effectiveness]
Again, please don't just forward our sample letter - it won't have any impact.
Our letter is considerably longer than yours should be (because we are trying to give you more ideas for your own letter). You can also send a similar letter to your own legislators, and be sure to mention that you are their constituent when you do so. When writing to the subcommittee please remember that (although the technology and legal issues are the same regardless of what digital medium we are talking about), they are only interested in comments focused on the digital music, not HDTV, DVDs, SSSCA/CBDTPA, eBooks, etc. While they can be mentioned, the focus should remain squarely on music. When writing to your own legislators you should discuss the issue more broadly.
Please remember to be polite but firm. Ranting, swearing, or lack of clear focus and resolve will not make a good impression. Try to make it brief (1 page or less written, or a few sentences spoken) and clear, without getting into nitpicky details. Re-casting the letter in your own words will be more effective than copy-pasting our sample.
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 countries are considering legislation like the US DMCA and SSSCA/CBDTPA.
Urge Congress to repeal the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). These legally-enforced technological restrictions are used by copyright holders to control use of creative expression. These controversial provisions outlaw the act of bypassing access controls and making or providing any technology, including software and information that could help another to bypass access or use restrictions.
Because the DMCA gives force of law to whatever use restrictions the copyright holders dream up (no matter who trivial they are to work around) the public's side of the copyright bargain is eliminated, or at least greatly reduced. The public's rights, such as fair use, allowing customers to copy works for lawful purposes even when the copyright holder does not wish to permit it, are disabled by technology that it is illegal to bypass.
We all enjoy the right under copyright law's First Sale Doctrine to sell or give our old and unwanted CDs and tapes to others for further use and enjoyment. But major labels restrict First Sale Doctrine privileges by requiring music to be tied to particular devices, and then seal the requirement through the DMCA's outlawing of any means of bypassing those restrictions. The Copyright Office Section 104 Report issued on August 29, 2001 ignores how the DMCA is being used to restrict First Sale privileges and the public's ability to make back-ups. The loss of public domain, fair use, and first sale rights under recent developments in copyright law presents a powerful threat to freedom of expression. Congress must address the loss of important consumer rights under copyright in the use of digital technology.The Copyright Office and courts have been looking to Congress to clarify and amend many of the controversial provisions. But Congress should address the chilling effect on freedom of expression presented by the DMCA's circumvention of the public's rights under copyright. Advise the House Subcommittee to repeal the DMCA's anti-circumvention provisions in order to protect freedom of expression and fair use in a digital environment, and thus restore balance to copyright law.
Inform Congress that it's time to formally recognize copyright law's fair use privilege as an affirmative right. Traditionally fair use has been considered a defense to claims of infringement when a person has a lawful right to use a copyrighted work in ways disapproved of the author. Copyright law also permits the making of back-up copies and personal use copies of works by individuals regardless of whether the author permits such use. Since copyright holders wrap their works up in "digital straight jackets" that control all uses, including disabling fair use rights, and DMCA makes it illegal to bypass those digital controls, fair use must be recognized as an affirmative right in order to restore balance in copyright law. Tell Congress that you want your fair use rights and you vote.
This drive to contact your legislators about the future of digital music 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:
For more information about access-control and copy-prevention systems see:
For essays and articles about fair use and digital media, see:
EFF's Fair Use FAQ:
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415-436-9333 x112
- end -
San Francisco - The California Supreme Court today agreed to review a lower court ruling that companies can sue those who send unwanted e-mail to their employees. The Electronic Frontier Foundation (EFF) filed an amicus letter in the Intel v. Hamidi case, arguing that the lower court distorted the "trespass to chattels" doctrine when applying it to the Internet.
The case arises from six system-wide e-mail messages sent by ex-employee Ken Hamidi during a two-year period to worldwide employees of Intel criticizing the company's treatment of its employees.
The messages admittedly did no harm to Intel's computer systems and caused no delays in its computer services. Nonetheless, in a 34 page opinion, the Third Appellate District Court of California ruled that sending unwanted e-mails was an illegal "trespass."
"When Hamidi sent those e-mails, he didn't trespass on Intel's property," said EFF Senior Staff Attorney Lee Tien. "We are pleased the Supreme Court has agreed to review this case."
Judge Kolkey, one of the judges in the Third District Court of Appeal, dissented from the majority and, agreeing with the ACLU and EFF, wrote:
"Under Intel's theory, even lovers' quarrels could turn into trespass suits by reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine what happens after the angry lover tells her fiance not to call again and violently hangs up the phone. Fifteen minutes later the phone rings. Her fiance wishing to make up? No, trespass to chattel."
Opening briefs in the case will be due approximately April 28, 2002.
Hamidi is represented by William McSwain of the Dechert law firm in Philadelphia, Pennsylvania. Both EFF and the ACLU, among others, are expected to file amicus briefs in the case.
Documents related to Intel v. Hamidi case:
Trespass to chattels analysis:
Intel v. Hamidi website:
Former and Current Employees of Intel website:
ACLU brief in Intel v. Hamidi 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 websites in the world:
http://www.eff.org/
- end -
San Jose, California - On Monday, April 1, 2002, Judge Whyte of the Northern District of California Federal Court will hear arguments on Russian software firm Elcomsoft's motion to dismiss the criminal charges leveled against it under likely unconstitutional provisions of the Digital Millenium Copyright Act (DMCA). Elcomsoft is charged with offering a tool that circumvents the copy protection in Adobe eBooks, allowing fair, noninfringing use by eBook purchasers.
Although the government has largely dropped its charges against Elcomsoft employee Dmitry Sklyarov, the company remains under criminal prosecution, presenting a chance for the court to look closely into the constitutional problems with the DMCA. The Electronic Frontier Foundation (EFF) filed an amicus brief in support of Elcomsoft as did over 35 law professors.
The hearing is open to the public, and the EFF would like to see a strong showing of support for Elcomsoft and opposition to the DMCA's unconstitutionality. Attendees should dress respectfully to keep from disrupting the legal proceedings.
When: 9:00 a.m., April 1, 2002
[Note: Despite the date, this is an actual hearing.]
Where: United States Courthouse, 280 South 1st Street,
San Jose, California, 95113
Courtroom: 4th Floor, Courtroom 6
Elcomsoft case archive:
- end -
WHO:
The Electronic Frontier Foundation, in conjunction with
the 12th Conference on Computers, Freedom, and Privacy (CFP2002).
WHAT:
EFF's Eleventh Annual International Pioneer Awards
WHEN:
Wednesday, April 17th, 2002
8:00 p.m. - 9:15 p.m.
WHERE:
Cathedral Hill Hotel, Japanese Pavilion
1101 Van Ness Ave. at Geary Blvd.
San Francisco, CA 94109
Telephone 415-776-8200
This event is free and open to the general public. Refreshments will be served. Come out to show your support for the pioneering individuals that will be honored at our eleventh annual awards ceremony, a long standing EFF tradition.
Please contact Katina Bishop for more information or to RSVP at katina@eff.org or 415-436-9333 x101.
- end -
You are invited to join an intimate group of fifteen for a lively evening of fine food, history and conversation with the original EFF co-founders, Mitch Kapor and John Perry Barlow. This exchange of ideas will take place on Tuesday, April 16th at 7:30 p.m. and will benefit EFF's work to protect rights in the digital age.
Mitch and Barlow founded EFF in July of 1990 to protect civil liberties
where law and technology collide. (See Barlow's compelling account from that time
at
The dinner will take place at the classic Waterfront restaurant in the North Room. While looking out over the San Francisco Bay, you will have the chance to take part in an in-depth conversation about EFF's fascinating role in the universe. You will also be contributing to an important cause, as the money raised from this unusual evening will go to furthering our work.
The evening includes the full cost of your dinner and drinks, the opportunity to talk with Mitch and Barlow, a vintage EFF t-shirt, and other surprises. The cost is $500. As there are only 15 available seats, space will fill up quickly.
Please contact Katina Bishop for more information or to RSVP at katina@eff.org or 415-436-9333 x101.
- end -
EFFector is published by:
The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
http://www.eff.org/
Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
editors@eff.org
To Join EFF online, or make an additional donation, go to:
http://www.eff.org/support/
Membership & donation queries: membership@eff.org
General EFF, legal, policy or online resources queries: ask@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.
To subscribe to or unsubscribe from EFFector via the Web, go to:
To subscribe to EFFector via e-mail, send to majordomo@eff.org a message BODY (not
subject) of:
subscribe effector
The list server will send you a confirmation code and then add you to a
subscription list for EFFector (after you return the confirmation code;
instructions will be in the confirmation e-mail).
To unsubscribe, send a similar message body to the same address, like
so:
unsubscribe effector
(Please ask listmaster@eff.org to manually remove you from the list if this does not work for you for some reason.)
To change your address, send both commands at once, one per line (i.e., unsubscribe your old address, and subscribe your new address).
Back issues are available at:
http://www.eff.org/effector
To get the latest issue, send any message to effector-reflector@eff.org
(or er@eff.org),
and it will be mailed to you automatically. You can also get, via the Web:
Return to EFFector Newsletters Index
Please send any questions or comments to webmaster@eff.org
![[*]](/home_blue_icon.gif){kind=icon}
EFF Welcome Page