EFFector Online Newsletter

EFFector       Vol. 16, No. 7       March 14, 2003     ren@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

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Backup DVD Copies Legal Says Electronic Frontier Foundation

Asks Court to OK 321 Studio's DVD X-Copy Software

San Francisco - The Electronic Frontier Foundation (EFF) is asking a court to confirm that software designed to make backup copies of DVDs is legal.

Championing the public's rights to use and innovate with media, EFF has filed a friend-of-the-court brief supporting 321 Studios' challenge to the Digital Millennium Copyright Act (DMCA). EFF, along with co-signers Public Knowledge and Computer Professionals for Social Responsibility, argue that tools such as 321's DVD X-Copy, which enables a user to make a personal backup copy or excerpt of a DVD, must be lawful because they are necessary to the public's fair use of digital media.

The movie studios on the other side of the 321 lawsuit claim that DVD X-Copy -- and any hardware or software tools that would allow viewers to back up or extract snippets from DVDs -- is an unlawful circumvention device.

However, many people use DVD X-Copy for other purposes than copyright circumvention. Videographers are duplicating their work, professors are preparing classroom examples, and parents are creating backups for their children using DVD X-Copy and similar tools.

"To preserve meaningful fair use rights for the public, we must ensure that technologies remain available to exercise those rights," said EFF Staff Attorney Wendy Seltzer. "Copyright law should balance public interest with private protection, and the DMCA's anticircumvention provisions distort that balance."

321 Studios filed suit on April 23, 2002, against MGM Studios, Tristar Pictures, Columbia Pictures, Sony Pictures Entertainment, Time Warner Entertainment, Disney Enterprises, Universal City Studios, The Saul Zaentz Company, and Pixar Corporation. All of the major motion picture production companies except Sony Pictures Entertainment and Pixar Corporation filed a counterclaim on December 19, 2002.

The EFF amicus brief builds on public frustration expressed in comments to the Copyright Office's recent anticircumvention rulemaking. EFF helped 242 people document the harm they have experienced from technologically restricted CDs and DVDs.

The Northern District of California court, San Francisco Division, will hear the case at 9:00 am on April 25, 2003.


EFF Files Comment in Support of Printer Cartridge Chip-maker

EFF this week filed a reply comment with the Copyright Office in support of three exemptions from the Digital Millennium Copyright Act (DMCA) sought by printer cartridge chip-maker Static Control Components, Inc. (SCC). As part of the Copyright Office's triennial DMCA rule-making, SCC has asked the Copyright Office to grant an exemption from the ban on circumvention of technological protection measures in section 1201(a)(1) of the Copyright Act for three classes of computer programs embedded in devices. 65 commenters filed reply comments with the Copyright Office.

In its reply comment, EFF pointed out that Congress did not intend the DMCA's anti-circumvention provisions to apply to situations such as SCC's, where the ban on circumventing a technological protection measure has been used to prevent the development of an aftermarket in uncopyrightable goods. EFF urged the Copyright Office to grant the DMCA exemption sought by SCC to protect consumers from the potential anti-competitive effects of such uses of technological protection measures, and to allow for legitimate reverse-engineering to create interoperable products.

SCC's request for a DMCA exemption is the latest round in a lawsuit that began last December, when printer manufacturer Lexmark International Inc. sued SCC for violating the DMCA's anti-circumvention provisions. Lexmark makes printer toner cartridges that contain a special microchip designed to prevent the cartridge from being refilled. Lexmark claims its printers use an authentication routine to communicate with the microchip, to verify that a Lexmark-authorized printer cartridge is installed. SCC sells a reverse-engineered version of the microchip to printer cartridge remanufacturers and recyclers, who refill Lexmark printer cartridges for resale to consumers. Lexmark obtained a preliminary injunction in February, preventing SCC from continuing to sell its 'Smartek' microchip. SCC countered with an antitrust complaint earlier this month.

In a case that looks set to raise similar potential anti-competitive issues, a manufacturer of a garage door opener has sued the creator of an interoperable universal garage door opener for violating the DMCA's anti-circumvention provisions.


California Supreme Court Reviews Email Pamphleteer Case

Lower Court Decision Threatens Internet Commerce and Speech

Los Angeles - The California Supreme Court has scheduled review of a lower court ruling that companies can sue those who send unwanted email to their employees.

The Electronic Frontier Foundation (EFF) filed an amicus brief in the Intel v. Hamidi case, arguing that the lower court distorted the "trespass to chattels" doctrine when applying it to the Internet.

The California Supreme Court has scheduled oral arguments in the Intel v. Hamidi case for 9:00 am on Wednesday, April 2, 2003, at the Ronald Reagan State Office Building, 300 South Spring Street, 3rd Floor, North Tower, Los Angeles.

Each side will have 30 minutes. Justices Baxter and Chin have recused themselves. Justices Perren and Mosk of the Court of Appeal will sit in their place.


Ashcroft's New Tactic: Redirecting Websites

The Justice Department has taken over several websites accused of selling drug paraphernalia, claiming authority under federal asset forfeiture laws. Visitors to the original sites are redirected to a site owned by the Drug Enforcement Administration and met with the following notice:

"By application of the United States Drug Enforcement Administration, the website you are attempting to visit has been restrained by the United States District Court for the Western District of Pennsylvania pursuant to Title 21, United States Code, Section 853(e)(1)(A)."

According to www.2600.com: "Four domains registered through Register.com, and two which are registered through GoDaddy Software, have had their original DNS name server entries removed and replaced with a single name server: NS.PIPEDREAMS.DEA.GOV. The ownership and contact information of the domains did not appear to have been modified, however."

This redirection raises speech and privacy issues that would not exist had the government merely shut down the websites. The cited statute [21 U.S.C. Sec. 853(e)(1)(A)] simply permits the government to seek and obtain a temporary restraining order "to preserve the availability of property." Redirection goes well beyond "preserving availability," however. Not only does it commandeer websites of persons who have not been convicted of a crime in order to facilitate government speech, it also enables the government to log the IP addresses of those who were redirected to the DEA website.

EFF is watching these cases for future developments.

CAPPS II on the Defensive?

The campaign against the Transportation Security Administration's (TSA) CAPPS II (Computer Assisted Passenger Prescreening System II) appears to be gaining steam. CAPPS II is yet another government anti-terrorist data-mining program that would try to analyze public and private databases in search of terrorist activity patterns to be used in creating various watchlists.

TSA is curious: According to the Washington Post, CAPPS II "will rate passengers using a color code: red for immediate threats, yellow for people with questionable backgrounds and green for the vast majority. The rating will be given to the airlines for decisions on whether a passenger should be allowed to board or be subjected to additional questioning."

EFF is not aware of any studies showing that these institutionalized fishing expeditions will be useful in fighting terrorism, but the risks they pose to privacy and civil liberties are all too obvious. The parallels with Poindexter's "Total Information Awareness" program are clear.

This week EFF, PrivacyActivism.org, and other groups submitted another set of comments to the government, this time criticizing its proposal to exempt the Aviation Security Screening Records system from many portions of the Privacy Act. EFF had previously submitted two sets of comments criticizing government collection of air passenger and other information.

In the meantime, concern about CAPPS II seems to be growing. A travel industry group recently polled more than 250 travel managers and corporate travel agents: 82 percent said they thought the new system was an unwarranted invasion of personal privacy and 79 percent said that the process would discourage travelers from flying on an airline that employed it.

Several major newspapers ran stories or editorials critical of CAPPS II on privacy grounds this past week, due partly to the publicity surrounding Bill Scannell's protest site, www.boycottdelta.com. The site was created after the press reported that Delta Air Lines will be testing CAPPS II at three unnamed airports, one of which is believed to be San Jose International Airport. TSA also announced that Lockheed Martin will build the backbone of CAPPS II. IBM and other unnamed companies will work with Lockheed Martin on the project.


Norwegian Appeals Court to Hear "DVD Jon" Case

Oslo, Norway - A Norwegian appeals court has agreed to hear the prosecutor's appeal of the case against Jon Johansen. Johansen is a Norwegian teenager acquitted of criminal charges for helping to write and publish a DVD descrambling program. Johansen used the program called DeCSS to watch his own DVDs on his Linux computer.

"A Norwegian court has already acquitted Jon Johansen of criminal charges for taking the steps necessary to view his own DVDs on his own computers," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "We're confident that the appellate court will come to the same conclusion that Johansen has not violated Norwegian law."

Halvor Manshaus of the Norwegian law firm Schjodt who represented Johansen in the case noted, "The appeal is not surprising. We won the acquittal from earlier this year on principle, not on particulars or formalities. This is important, since the court's ruling gives weight to our interpretation of the laws in question. I had advised Johansen that an appeal was to be expected, since the prosecutors have announced that this is considered a case of principle interest, and we are prepared for yet another full round in court."

After a request from the Motion Picture Association of America (MPAA), the Norwegian Economic Crime Unit (OKOKRIM) had charged Jon Johansen for unscrambling DVDs using DeCSS in 1999 when he was 15 years old.

Johansen was acquitted of the charge of violating the Norwegian Criminal Code section 145(2), which outlaws breaking into another person's locked property to gain access to data that no one is entitled to access.

Johansen's prosecution marks the first time the Norwegian government has attempted to punish individuals for accessing their own property. Previously, the government used this law to prosecute only individuals who violated someone else's secure system, like a bank or telephone company system, in order to obtain another person's records.

The three-member Oslo City Court unanimously ruled to acquit Johansen. The Norwegian prosecutors convinced an appeals court to rehear the case and the court will not likely decide the case until the end of 2003.

Johansen's indictment came more than two years after the MPAA initially contacted OKOKRIM prosecutors to request a criminal investigation of the Norwegian teen and his father, Per Johansen, who owned the equipment on which the DeCSS software was stored. The charges against Johansen's father were later dropped.


Deep Links

Deep Links features noteworthy news items, victories, and threats from around the Internet.

  • Hollywood and Microsoft Testimony Links Piracy to Terrorism
    The MPAA likes to throw the word "pirate" around, but don't "large, violent, highly organized criminal groups" that commercially pirate DVDs seem qualitatively different from college students using Kazaa? Are we missing something here?
  • The Myth of Interference
    M.I.T.'s David Reed explains how outdated science created the broadcasting industry.
  • Computer Makers May Pay a Levy to Copyright Holders
    Citing piracy, an association of German publishers may succeed in forcing PC buyers to pay a levy for their hardware.
  • Wooing the Geek Demographic, McDonalds Offers McWireless
    "McDonald's customers who buy certain combination meals in New York City will also receive one free hour of wireless high-speed Internet access. And if they want another hour, they can pay $3 -- or buy another extra-value meal. Guaranteed to increase your bandwidth."
  • Here's Your Rock, There's Your Hard Place
    That's how some American businesses feel when they try to balance government requests for information and the privacy of their customers in a post-9/11 world.
  • BSA Pans Pro-Consumer BALANCE Act Rep. Lofgren has again introduced her bill to bolster consumers' rights and protect them from unfair licensing terms. You can read about it at Lawmeme.
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    Ren Bucholz, Activist

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