EFFector, Vol. 15, No. 14, May 16, 2002

EFFector Vol. 15, No. 14, May 16th, 2002 editors@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 214th Issue of EFFector:

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Electronic Frontier Foundation Media Advisory

Court Rejects Review of 2600 Magazine Digital Copyright Case

U.S. Supreme Court Appeal Possible on Internet Linking Issue

New York - On May 8, 2002, the Second Circuit Court of Appeals denied 2600 Magazine's request for review of a November 2001 appeals court decision that upheld an injunction against the Web publisher. Major Hollywood movie studios obtained an injunction in 2000, barring 2600 Magazine from publishing or linking to DeCSS software that decodes DVDs.

Represented by the Electronic Frontier Foundation (EFF) and Stanford Law School Dean Kathleen Sullivan, 2600 Magazine in January 2002 asked the entire appellate court to reconsider the decision that upheld the lower court's injunction.

The case is one of the first to challenge the anti-circumvention measures of the 1998 Digital Millennium Copyright Act (DMCA) as an unconstitutional restraint on freedom of speech. EFF and 2600 Magazine are considering whether to appeal the 2nd Circuit's ruling to the U.S. Supreme Court.

Contact:
Robin Gross
Intellectual Property AttorneyElectronic Frontier Foundation
robin@eff.org
+1 415 436-9333 x112 (office), +1 415 637-5310 (cell)

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 and privacy online. EFF is a member-supported organization and maintains one of the most-linked-to websites in the world at
http://www.eff.org/

[This ACLU media release redistributed with permission by EFF as a courtesy to the EFFector subscribers. EFF is one of the plaintiffs in the COPA case.]

Maintaining Ban on Internet Censorship Law, Supreme Court Asks Lower Court to Revisit Ruling

For Immediate Release - Monday, May 13, 2002

NEW YORK--The American Civil Liberties Union today said it was pleased with a Supreme Court decision maintaining a ban on a law that criminalizes constitutionally protected speech on the Internet.

In keeping the ban in place, the Court did not decide any of the legal questions, but asked the Third Circuit Court of Appeals to decide the case on a wider range of First Amendment issues.

"The Court clearly had enough doubts about this broad censorship law to leave in place the ban, which is an enormous relief to our clients," said Ann Beeson, Litigation Director of the ACLU's Technology and Liberty Program, who argued the case before the Justices last November.

"As the Court indicated, this case is still very much a work in progress," she added, noting that a majority of the Court appeared to have grave doubts about the ultimate constitutionality of the law. "Just as the Court has struck down other laws that attempt to reduce the adult population to reading only what is fit for children, we are confident that the Court will ultimately strike down this law."

The so-called Child Online Protection Act, also known as "COPA," made it a federal crime to use the World Wide Web to communicate "for commercial purposes" material considered "harmful to minors," with penalties of up to $150,000 for each day of violation and up to six months in prison.

In its legal challenge to the Act, the ACLU said constitutional flaws in this law were identical to the flaws that led the Supreme Court to strike down the Communications Decency Act, Congress's earlier attempt at Internet censorship, in a landmark 1997 ruling.

The speech at issue in today's case, Beeson noted, includes sexual advice columns, discussion boards on gynecology, and websites for a bookstore, an art gallery, and the Philadelphia Gay News, among others.

It is now up to the Third Circuit Court of Appeals to decide whether to rule based on the facts the district court used to grant the preliminary injunction against the law, or to send the case back down for a full trial before Judge Lowell A. Reed, Jr., of the District Court in Philadelphia.

In addition to today's case over a federal “harmful-to-minors” law, the ACLU has brought successful challenges to state "harmful-to-minors" laws in Michigan, New Mexico, New York, Arizona and Vermont. A case brought in Virginia also resulted in a “harmful-to-minors” law being struck down. The ACLU noted that the state challenges were successful because of the impossibility of verifying the age as well as location of Internet users.

[This EPIC media release redistributed with permission by EFF as a courtesy to the EFFector subscribers. EFF signed on to the amicus brief mentioned in the release.The amicus brief is available on the EFF website at
http://www.eff.org/IP/Video/Paramount_v_ReplayTV/20020513_ami_brf_oppse_discv_ord.pdf
This media release below is available at
http://www.epic.org/privacy/replaytv/press_release_051302.html.]

Civil Liberties and Consumer Group File Amicus Brief To Prevent Court-Ordered Surveillance Of Television Users

Washington, D.C. – The Electronic Privacy Information Center (EPIC) and a coalition of civil liberties and consumer groups today asked a federal court to overrule a decision mandating enforced surveillance of ReplayTV 4000 television users. Two weeks ago, numerous television studios persuaded a judge to issue an order requiring SONICblue to monitor and record the TV uses of its customers.

The ReplayTV 4000, sold by SONICblue Inc., is a personal video recorder (PVR) that allows users to store television programming to hard disks for later viewing. The PVR also allows users to pause, fast forward, and skip commercials. SONICblue has never collected viewing data from ReplayTV 4000 users, assuring users that their privacy “is a right, not a privilege.”

Television studios had sued SONICblue on various theories of copyright infringement. As part of that lawsuit, the television studios made the unprecedented demand that SONICblue reengineer its product to collect evidence for the studios to use at trial, and for the studios to file lawsuits against individual television viewers. Specifically, the television studios asked the magistrate judge overseeing discovery disputes to order SONICblue to remotely install on its customers’ PVRs certain software that will monitor and record all PVR usage and to do so without notice to the consumer or his consent.

On April 26, 2002, a magistrate judge in the Central District of California granted the television studios’ request. On May 10, 2002, SONICblue filed with the lead judge objections to that order, asking it to be reversed. The Electronic Privacy Information Center (EPIC), Electronic Frontier Foundation (EFF), Center for Digital Democracy (CDD), Computer Professionals for Social Responsibility (CPSR), Consumer Action, Media Access Project (MAP), Public Knowledge, and The Privacy Foundation filed an amicus brief, joining SONICblue in those objections.

In the amicus brief, the civil liberties and consumer groups argue that the court order infringes on individuals’ privacy rights and intellectual freedom. According to Megan E. Gray, Senior Counsel at EPIC, “A person’s home is one of the most sacred of private places - the studios have no right to intrude there to collect data for their own purposes without the individual’s consent.” The compelled surveillance also invades intellectual freedom – “People will be chilled from watching certain programs, whether unpopular, controversial, or sexually explicit - if they knew that an electronic record would be created, in perpetuity, about their viewing choices,” says Gray.

EPIC maintains a webpage on Digital Rights Management and its implications for privacy at http://www.epic.org/privacy/drm.

EPIC is a public-interest center that was established to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and other constitutional values.

[This Creative Commons media release redistributed with permission by EFF as a courtesy to the media professionals on the EFF presslist. Creative Commons is working with EFF to build on its experience with the EFF Open Audio License, for which more information is available at
http://www.eff.org/IP/Open_licenses/] -------

Creative Commons Opens the Doors to the Public Domain

Santa Clara, CA - Representatives from the new nonprofit Creative Commons (http://creativecommons.org) today outlined the company's plans to help lower the legal barriers to creativity through an innovative coupling of law and technology. The Creative Commons will provide a free set of tools to enable creators to share aspects of their copyrighted works with the public.

"Our tools will make it easier for artists and authors to make some or all of their rights available to the public for free," Stanford Professor and Creative Commons Chairman Lawrence Lessig explained at the O'Reilly Emerging Technologies Conference. "If, for example, an artist wants to make her music available for non-commercial use, or with just attribution, our tools will help her express those intentions in a 'machine-readable' form. Computers will then be able to identify and understand the terms of an author's license, making it easier for people to search for and share creative works."

Creative Commons was formed by a coalition of academics from a broad range of institutions, including Duke, Harvard, MIT, Stanford, and Villanova. Its aim is to use the flexibility of copyright law to help support a rich public domain alongside traditional copyrights.

In a separate Creative Commons presentation, Molly Van Houweling, Executive Director, and Lisa Rein, Technical Architect, previewed the web-based application that will help scholars, artists, and others make their works available for copying, modification, and redistribution. Authors and artists who use the tool may choose to dedicate their works to the public domain or choose to retain their copyright while allowing creative reuses subject to custom combinations of conditions. An illustrator seeking exposure, for example, might choose to let anyone freely copy and distribute her work, provided that they give her proper credit. An academic eager to build a public audience could permit unlimited noncommercial copying of his writings.

"The aim," Ms. Van Houweling explained, "is not only to increase the sum of raw source material online, but also to make access to that material cheaper and easier." To do this, Creative Commons will translate authors' intentions into "metadata" associated with their creative works. This will enable people to use the Internet to find, for example, photographs that are free to be altered or reused, or texts that may be copied, distributed, or sampled with no restrictions whatsoever - all by their authors' permission, expressed in code as well as plain, straightforward language.

Creative Commons expects to launch these applications for general public use this fall. In the meantime, Creative Commons is inviting feedback on its prototype and its mission. Creative Commons also announced its longer-term plans to create an intellectual property conservancy. Like a land trust or nature preserve, the conservancy will protect works of special public value from exclusionary private ownership and from obsolescence due to neglect or technological change. The conservancy will house a rich repository of high-quality works in a variety of media, and help foster an ethos of sharing, public education, and creative interactivity.

Molly Van Houweling
Executive Director
Creative Commons
press@creativecommons.org

Creative Commons was founded upon the idea that creativity and innovation rely on a rich heritage of prior intellectual endeavor. We stand on the shoulders of giants by revisiting, reusing, and transforming the ideas and works of our peers and predecessors. Digital communications promise a new explosion of this kind of collaborative creative activity. At the same time, expanding intellectual property protection leaves fewer and fewer creative works in the "public domain" - the body of creative material unfettered by law and, to quote Justice Brandeis, "free as the air to common use" - while the growing complexity of copyright makes it more and more difficult to know when it is legal to copy or alter a work. Creative Commons will work within the copyright system to help reduce these barriers to creativity.

Creative Commons was founded in 2001 with the generous support of the Center for the Public Domain. It is now based at and receives generous support from Stanford Law School, where Creative Commons shares space, staff, and inspiration with the Stanford Law School Center for Internet and Society. It is led by a Board of Directors that includes law professors Lawrence Lessig, James Boyle, and Michael Carroll, MIT computer science professor Hal Abelson, lawyer-turned-documentary filmmaker-turned-cyberlaw expert Eric Saltzman, and public domain web publisher Eric Eldred. The organization is also advised by a technical advisory board that includes boardmember Hal Abelson, Barbara Fox (Senior Architect, Cryptography and Digital Rights Management, Microsoft WebTV), Don McGovern (Senior Fellow at the Berkman Center for Internet and Society at Harvard Law School), and Eric Miller (Activity Lead for the World Wide Web Consortium's Semantic Web Initiative).

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