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EFFector - Volume 12, Issue 4 - Intellectual Property Interests Launch Holiday Attack on Free Expression


EFFector - Volume 12, Issue 4 - Intellectual Property Interests Launch Holiday Attack on Free Expression

   EFFector       Vol. 12, No. 4       Dec. 28, 1999
   A Publication of the Electronic Frontier Foundation     ISSN 1062-9424
  IN THE 148th ISSUE OF EFFECTOR (now with over 20,000 subscribers!):
     * Intellectual Property Interests Launch Holiday Attack on Free
          + Trade Group Files Suit Against All Identifiable Posters of or
            Linkers to Linux DVD Hack
               o WHAT YOU CAN DO: Show up!
          + Real Networks Gets Injunction against Streambox for Reverse
            Engineering "RealMedia"
     * Administrivia
   For more information on EFF activities & alerts:
  Intellectual Property Interests Launch Holiday Attack on Free Expression
  Trade Group Files Suit Against All Identifiable Posters of or Linkers to
  Linux DVD Hack
    EFF Assembling Legal Team to Defend Targets
   The movie industry, through its recently activiated Digital Video Disc
   Content Control Association (DVD CCA), a trade organization
   controlling DVD patents, has filed a lawsuit in California against
   dozens of people around the world. who have published information, or
   links to information, about the DVD Content Scrambling System (CSS),
   on the Internet. As many as 500 defendants could eventually be named.
   The DVD CCA claims that the defendants are violating the association's
   trade secrets and other intellectual property rights by posting the
   source code of (or simply having links to other sites with the source
   code of) a legally reverse-engineered means of decoding DVD discs. An
   important hearing in the case has been scheduled for tomorrow, Wed.,
   Dec. 29, 1999.
   Tomorrow's hearing is on whether the judge should issue a temporary
   restraining order against the defendants, who have been publishing
   information about the DVD content scrambling system in various
   locations in the US and worldwide. Any such order, if issued, would
   only apply for a few weeks, while the parties argued in court about
   whether a permanent injunction should restrict these defendants from
   publishing this information for the duration of the court case.
   It is EFF's opinion that this lawsuit is an attempt to architect law
   to favor a particular business model at the expense of free
   expression. It is an affront to the First Amendment (and UN human
   rights accords) because the information the programmers posted is
   legal. EFF also objects to the DVD CCA's attempt to blur the
   distinction between posting material on one's own Web site and merely
   linking to it (i.e., providing directions to it) elsewhere.
   These defendant individuals have been publishing legitimate, protected
   speech, including software, textual descriptions, and discussions of
   the DVD CSS. This speech is in no way copied or acquired from the DVD
   CCA's trade-secret documents. Copyrights do not give anyone any rights
   in "ideas", only in the exact form in which they are expressed.
   Trade-secret law only controls people who agreed to keep it secret and
   have been told the secret; other people remain free to independently
   discover the secret. The ideas being discussed and implemented were
   apparently extracted by having an engineer study a DVD product
   ("reverse engineering it"), which is a legal activity that is not
   restricted by any laws in most jurisdictions.
   The DVD CCA is trying to shut these speakers down by starting with the
   false assumption that reverse engineering is illegal. It is not. If,
   for example, the DVD reverse engineering had been done in Santa Clara,
   it would be legal under the 9th Circuit Court case Sega v. Accolade.
   See also the 1998 US Digital Millennium Copyright Act, which provides
   specifically in section 1201(f) that reverse engineering of an
   copy-protection encryption system is legal for "interoperability",
   which is why it was done in this case.
   The case itself is organized as a "theft of trade secrets" case; it
   doesn't use the Digital Millennium Copyright Act and doesn't appear to
   rely otherwise on copyright law. The root of the case is their
   allegation that the original reverse-engineering of the DVD CSS system
   was "improper" (paragraph 18), "unauthorized" (para. 20), "wrongfully
   appropriating proprietary trade secrets" (para. 21), "unauthorized use
   of proprietary CSS information, which was illegally "hacked" (para.
   22). However, they provide no proof of these allegations, and they are
   unlikely to be true. If the original reverse-engineering was legal,
   which we believe is true, then the subsequent republication of the
   information is also legal, and the case is merely a tool to harass
   people exercising their legal rights.
   EFF's interest in the case is to protect reverse engineering as part
   of First Amendment protected speech. EFF legal counsel Robin Gross,
   and pro-bono counsel Allonn Levy of Huber, Samuelson will be at Santa
   Clara Superior Court tomorrow morning to represent at least two
   defendants, Chris DiBona and Andrew Bunner. EFF co-founder John
   Gilmore will also attend at the hearing tomorrow. EFF will at minimum
   provide "stop-gap" defense to avoid a temporary restraining order
   against the defendants. Following the hearing, EFF will assess the
   situation and the level of our involvement.
   EFF is committed to ensuring that individuals rights are protected,
   and free speech is a fundamental right. It would be a poor public
   policy to allow intellectual property owners to expand their property
   at the expense of free speech -- particularly when the speech in
   question elucidates how companies constrain the distribution of other
   free expression.
   The technology at issue here is the DVD Content Scrambling System
   (CSS), a technical effort to prevent people who have legally purchased
   a DVD from making completely legal copies of it for their own use. It
   is legal ("fair use") for people to make personal copies of
   copyrighted material available to them. (See, e.g., the Supreme
   Court's 1984 decision in the "Betamax" case, Sony Corp. v. Universal
   City Studios. In that case a movie studio was trying to have all VCR's
   banned from the United States because of the potential to "pirate"
   valuable movies -- just as in the current case they are attempting to
   have all reverse-engineered decoders of DVDs banned. The Supreme Court
   ruled that if VCR's have even a single non-infringing use, they cannot
   be banned. It is clear that the reverse-engineered DVD CSS has a
   non-infringing use, the viewing of DVDs on the Linux operating
   system.) The underlying technology is for censorship, for control over
   who can communicate what to whom. The DVD CSS prevents people from
   making illegal copies -- and also prevents them from making LEGAL
   copies, by preventing them from making ALL copies. The publishers are
   trying to take away, by technical means, the rights guaranteed to
   citizens under the copyright laws of many jurisdictions, including the
   The decoder source code at the center of the case, called "DeCSS", was
   created (by third parties, not the defendants) to enable Linux
   computers to utilize DVD drives and content, since the industry itself
   failed to produce the necessary drivers for this operating system. DVD
   CCA alleges rather unbelievably that the source code's real purpose is
   to enable illegal duplication of DVD discs. The industry association
   also misleadingly suggests that the DVD medium is simply a vehicle for
   commercial content delivery, when in fact it is a read-write medium
   intended to be used as computer storage by computer-using consumers,
   just like hard drives or writable CDs.
   We believe that the industry is mounting this legal attack merely as a
   charade to discourage the widespread adoption of the legally
   reverse-engineered information into popular open source software
   programs. They knew that their "encryption system" was weak and that
   it would not withstand scrutiny, so they kept it secret as long as
   possible. Now that it's out in the open, they are wielding legal clubs
   against anyone who attempts to write about it or use it, to delay the
   inevitable. If they wanted to keep their information secret, they
   shouldn't have made millions of copies of it and sold them all over
   the world. Instead their tactics have been to follow the inevitable
   disclosure by swift oppression, using large bankrolls to send lawyers
   against little people. But the little people are part of the Linux
   community and the Internet community, which have made billions of
   dollars recently, and are not kindly disposed toward oppression.
   More information, including case documents, is available at Chris
   DiBona's site:
    WHAT YOU CAN DO: Show up!
   If you're in the SF Bay Area and can make it to the hearing, consider
   it "Netizen's Dress-Up Day" on Wed., Dec. 29. Meet at the front of the
   Santa Clara County Superior Court, 191 N. 1st St., San Jose, CA, at
   8am PST, dressed sharp, to personally attend the DVD case hearing. It
   is important that the judge see an unexpectedly large and intent
   attendance. The hearing will begin at 8:30 in one of Departments 2, 9
   or 12 (uncertain at this time).
   We will follow the hearing with a press conference outside the
   courthouse, and many attendees will do a group lunch at nearby Havana
   Cuba Restaurant.
   Watch the wheels of justice grind! Shake hands with the intrepid
   lawyers who are working hard to protect our rights! Meet interesting
   defendants risking a lot to excercise their rights!
   Please make a positive impression on the judge. Don those expensive,
   semi-formal duds. Show the court -- by showing up -- that this case
   matters to more people than just the plaintiff and defendants.
   Demonstrate that this decision will make a difference to society. That
   the public and the press are watching, and really do care that the
   issue is handled well.
   We'll have to be quiet and orderly while we're in the courthouse.
   There will be no questions from the audience (that's us), and no
   photography there, but the session will be tape-recorded and
   transcribed, and you can take notes if you like. Remember that courts
   have strict security these days, so don't bring cameras, or even small
   pocket knives unless you want them held by entrance guards while
   you're in the courthouse.
   We realize this is very short notice, and that only locals are likely
   to be able to attend, but this case is moving rapidly toward filing
   and there is nothing we can do to delay it.
   For more information on this gathering, see:

  Real Networks Gets Injunction against Streambox for Reverse Engineering
   Real Networks, makers of the proprietary streaming audio-video system
   known variously as RealMedia, RealAudio and RealVideo, have succeeded
   in getting a preliminary injunction under the Digital Millenium
   Copyright Act (DMCA) against Streambox, makers of "Ripper", software
   that, among other things, has reverse-engineered the RealMedia formats
   and/or protocols, allowing users to convert their RealMedia files into
   other formats.
   EFF believes this suit is without merit and the injunction an improper
   restraint of freedom of expression, because the Ripper software has
   many legitimate uses, including enabling of fair use and time or
   format shifting (rights upheld in a number of court decisions,
   including those in RIAA v. Diamond and Sega v. Accolade.) Real
   Networks' characterization of Ripper as nothing but a tool for piracy
   is factually incorrect.
   The DMCA was not intended, and may not be used, to suppress legtimate
   technologies or expression, nor the fair use rights of the public.
   EFFector is published by:
   The Electronic Frontier Foundation
   1550 Bryant St., Suite 725
   San Francisco CA 94103-4832 USA
   +1 415 436 9333 (voice)
   +1 415 436 9993 (fax)
   Editor: Stanton McCandlish, Communications Coordinator/Webmaster
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