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EFFector - Volume 13, Issue 4 - Ace Attorney Enters Battle Over DVDs

   
   EFFector       Vol. 13, No. 4       Apr. 3, 2000       editor@eff.org
                                      
   A Publication of the Electronic Frontier Foundation     ISSN 1062-9424
                                      
  IN THE 152nd ISSUE OF EFFECTOR (now with over 23,000 subscribers!):
  
     * Changes at EFF
          + EFF Past and Present
          + EFF in Transition
          + EFF Tomorrow
     * Ace Attorney Enters Battle Over DVDs
     * EFF Reply Comments to Copyright Office on DMCA Rulemaking
          + [Introduction]
          + Digital Equivalent of First Sale Rule - "First Access" Rule
          + Right to Make Digital Fair Use
          + Response to Copyright Industry Comments
     * Administrivia
       
   For more information on EFF activities & alerts: http://www.eff.org
     _________________________________________________________________
   
Changes at EFF

   Dear EFF members,
   
   EFF is going through some changes, and we wanted to let you all know
   what's happening. The rest of this EFFector continues our editorial
   focus on cyberspace policy issues.
   
  EFF Past and Present
  
   As most of you know, EFF was founded almost 10 years ago to defend
   innocent computer users and companies against vastly overzealous raids
   and judicial actions by the U.S. Secret Service.
   
   Since then, EFF has fought a hard decade to defend fundamental rights
   that have been put at risk by the online revolution and by reactions
   to that revolution -- both in government and the corporate world. EFF
   also acts to preempt such reactions, through public education and
   policy analysis that are done before trouble erupts.
   
   Doing this is hard work, and the electronic frontier is more chaotic
   than ever, even though - or perhaps because - it is vastly more
   populated today than it was in 1990.
   
  EFF in Transition
  
   EFF is a unique organization, supported almost entirely by members and
   donors, and working in the true public interest on vital and active
   issues. This broad public base of supporters is our constituency, and
   we are neither simply a foundation-supported think tank nor
   industry-funded special interest lobby.
   
   We know you want us to fight the good fight for fundamental rights in
   the online world. This, with your support, we will continue to do.
   
   There have been some EFF leadership changes, and new hires in recent
   times. Two of the original founders and another long-term board member
   have committed to continue steering the organization into a
   challenging future.
   
   Issues and cases that warrant EFF involvement come up literally on a
   daily basis. With so much to do, it is no surprise that over time
   fundamental differences occasionally arise internally over the right
   priorities, and over a long-term vision for the organization. EFF has
   recently resolved some of these differences, and remains committed to
   the founding principles of our mission.
   
   Our new Chairman of the Board, Internet entrepreneur and early online
   publisher Brad Templeton, joined EFF soon after its founding (and some
   of you may remember his writings from the very first volume of
   EFFector). He joined the EFF board in 1997. Templeton founded ClariNet
   Communications Corp., the net's first and largest electronic
   newspaper, in 1989 (since merged with Newsedge Corp.) He is on the
   advisory board of, and is an investor in, the e-mail company Topica
   and the Web user interface venture Troba, and is involved in a variety
   of software development and publishing operations. Brad started the
   net's most widely read newsgroup, rec.humor.funny, and authored some
   of the best-known FAQs, including "Emily Postnews Answers Your
   Questions on Netiquette". His home page is:
   http://www.templetons.com
   
   EFF Co-Founder and Boardmember John Perry Barlow remains as
   Vice-Chairman and speaks the story of EFF around the world. Barlow is
   a retired Wyoming cattle rancher, a former lyricist for the Grateful
   Dead, and a Fellow at Harvard Law School's Berkman Center for Internet
   and Society. He is a writer, lecturer, editor and consultant on
   subjects relating to the virtualization of society, and has
   contributed to and/or worked with Communications of the ACM, WIRED
   magazine, Vanguard Group, the Global Business Network,Diamond
   Technology Partners, and the National Computational Science Alliance.
   His home page is:
   http://www.eff.org/homes/barlow/
   
   John Gilmore, Boardmember and Co-Founder of EFF, has become its
   interim Executive Director. John has a long career in cyberspace civil
   liberties, including more than ten years of focus on encryption
   policy, in which his views have gradually gained sway. He has
   substantial technical and management experience from several startup
   companies, including Cygnus Solutions, which he co-founded, and which
   was acquired in January by Red Hat, Inc. John also has strong ties to
   the open source software community, which cares deeply about the
   freedom to innovate and to publish. His home page is:
   http://www.toad.com/gnu/
   
   Additionally, EFF has brought on a Development & Marketing Director
   (Tom McGuire), a Public Policy Director (Lauren Gelman), a Press
   Officer (Katina Bishop), and a Membership Coordinator (Kathleen
   Guneratne) in the last year, and is seeking a Legal Services Director.
   
   EFF and Tara Lemmey, its former Executive Director, have mutually
   agreed to part ways, but will continue working together on important
   upcoming projects. Tara will be dedicating her full energies to a
   spinoff known as Project LENS (Law, Economics, Nature & Self) which
   she initiated in 1997. Project LENS will be hosting a conference on
   identity and related issues such as biometrics and privacy in October
   of this year. EFF will be a founding sponsor of this conference.
   
   EFF will immediately conduct a search for a permanent Executive
   Director. We are still deciding on the qualifications of a successful
   candidate. Interested parties can send email to search@eff.org.
   
  EFF Tomorrow
  
   EFF continues to pursue its long-term mission of educating the public,
   policymakers, and courts about the issues that arise when traditional
   expectations conflict with the new worlds created by computers and the
   Internet. We remain focused on civil liberties and civil
   responsibilities in cyberspace. We continue to offer legal advice and
   referrals, a large archive of current and historical online civil
   liberties information, and information for the press and policymakers
   about the long-term issues that arise in the many short-term conflicts
   that come up on the Net.
   
   Our board members John Perry Barlow and Esther Dyson have been writing
   and speaking about the conflicts between intellectual property
   protection and free speech for years. These issues have come to a head
   in the last year, providing a new area for EFF's activities. Other
   articles in this EFFector discuss some of the issues involved.
   
   Our path is not an easy one. Every day we learn that if we don't step
   forward to defend freedom to speak, freedom to encrypt and the rights
   of privacy, often nobody will. The issues are contentious and the
   times are "interesting" in the sense of the Chinese curse.
   
   We thank you, our members, supporters, and subscribers, for helping us
   bring some order to the frontier as it continues to evolve at high
   speed. We pledge to continue "fighting the good fight" to keep
   cyberspace a safe place for civil liberties, and to teach everyone
   what it means to act responsibly online.
   
     John Gilmore, Interim Executive Director
     Brad Templeton, Chairman
     John Perry Barlow, Vice-Chairman
     
     _________________________________________________________________
   
     For Immediate Release March 27, 2000
   
Ace Attorney Enters Battle Over DVDs

    Civil Liberties Group Pairs with Renowned First Amendment Lawyer Martin
    Garbus in the Fight for Free Expression on the Internet
    
     Contact:
     Katina Bishop
     (415) 436-9333 ex. 101, Electronic Frontier Foundation
     
   San Francisco, CA -- Martin Garbus a prominent NY First Amendment
   attorney has joined the Electronic Frontier Foundation's (EFF's) DVD
   legal team as head litigator in a groundbreaking case that challenges
   the MPAA's controversial interpretation of the Digital Millennium
   Copyright Act. Garbus's addition to the DVD legal team brings high
   caliber litigation expertise to EFF's continuing fight for free
   expression on the Internet.
   
   "This is one of the most important cases of the new Millennium
   concerning free expression on the Internet," stated Martin Garbus.
   "The US Supreme Court will ultimately decide whether corporations or
   American citizens will be able to determine what the American public
   can see hear and read. This case stands for freedom, for the media,
   for the people, and against selfish corporate greed. With such
   fundamental rights in question, I felt compelled to get involved."
   
   Garbus is one of the country's leading trial attorneys and a founding
   partner of NY firm Frankfurt, Garbus, Klein, and Selz, PC where he has
   long been engaged in the fight for civil liberties. Garbus
   successfully tried complex intellectual property and media cases in
   nearly every state in the country. He has appeared before the US
   Supreme Court and has taught law at Columbia and Yale Universities. A
   frequent contributor to major newspapers and national magazines,
   including the New York Times, Washington Post, and Los Angeles Times,
   Garbus also regularly comments upon current legal issues for NBC, CBS,
   Time, and Newsweek.
   
   "EFF is excited to work with such an accomplished First Amendment
   litigator and to have the benefit of Garbus' court room skills
   fighting for free expression online," stated Robin Gross, EFF staff
   attorney. "This case represents a continuation in EFF's ten-year
   battle to protect civil liberties on the 'Net. It strikes at the core
   of EFF's mission to fight for free expression, the right to reverse
   engineer software, and the right to publish the results without fear
   of prosecution."
   
   The motion picture industry has launched a series of legal attacks
   against several Web site publishers for posting information on the
   weak security of DVDs including 2600 Magazine in NY. EFF, which is
   leading the defense in the cases brought in California, New York,
   Connecticut, and Norway, believes that the industry continues to
   inappropriately label speech about the technical insecurity of DVD's
   as stealing digital copies of movies.
   
   EFF's New York DVD Legal Defense Team consists of Martin Garbus of
   Frankfurt, Garbus, Klein, and Selz; Eben Moglen of Columbia University
   Law; Allonn Levy of Huber Samuelson; and Robin Gross of the Electronic
   Frontier Foundation. The trial date has been set for December 5, 2000
   in federal district court in New York.
   
   EFF's work in the DVD cases is part of its Campaign for Audiovisual
   Free Expression (CAFE), which it launched last year to address complex
   societal and legal issues raised by new technological measures for
   protecting intellectual property rights. A special fund has been
   established by EFF to support the costly nature of this litigation.
   Donations are tax-deductible and can be made online via EFF's Web
   site.
   
   For more information on Martin Garbus and his work, see:
   http://www.fgks.com
   
   For complete information on the MPAA and DVD-CCA cases, see:
   http://www.eff.org/IP/Video
   
   For more information concerning EFF's Campaign for Audiovisual Free
   Expression, see:
   http://www.eff.org/cafe
   
   The Electronic Frontier Foundation (http://www.eff.org) is the leading
   global nonprofit organization linking technical architectures with
   legal frameworks to support the rights of individuals in an open
   society. Founded in 1990, EFF actively encourages and challenges
   industry and government to s upport free expression, privacy, and
   openness in the information society. EFF is a member-supported
   organization and maintains one of the most-linked-to Web sites in the
   world.
   
     _________________________________________________________________
   
EFF Reply Comments to Copyright Office on DMCA Rulemaking

   Mr. David O. Carson
   Office of the General Counsel
   Copyright Office GC/I&R
   P.O. Box 70400
   Southwest Station
   Washington, D.C. 20024
   Sent via email: 1201@loc.gov
   
   RE: REPLY COMMENTS -- Exemption to DMCA's Prohibition on Circumvention
   of Copyright Protection Systems for Access Control Technologies
   
   Mr. Carson:
   
  [Introduction]
  
   The Electronic Frontier Foundation (EFF) appreciates the opportunity
   to submit reply comments to aid the Copyright Office in its task of
   determining additional classes of works to exempt from the Digital
   Millennium Copyright Act's circumvention ban. Congress acknowledged
   the adverse impact likely upon individual rights from the Act's
   general ban on circumvention, and instructed the Copyright Office to
   exempt further classes in addition to the few exceptions listed in the
   statute in order to achieve balance among interests in the digital
   environment.
   
   Because the DMCA only permits exemption under a narrow set of
   circumstances, it tips copyright's traditional balance overwhelmingly
   in favor of copyright holders at the expense of free expression, fair
   use, and innovation. Rather than outlaw reverse engineering generally
   and then selecting a few specific circumstances in which to permit the
   activity, Congress should have outlawed illegal activity while leaving
   legal reverse engineering intact to remain a primary driver in the
   emerging information economy.
   
  Digital Equivalent of First Sale Rule - "First Access" Rule
  
   In order to restore the delicate balance to copyright law in a digital
   environment, traditional principles such as the First Sale Rule must
   be granted digital equivalents. Under copyright law's First Sale
   Doctrine, copyright holders' right to control what happens to a
   particular copy of a work are cut-off once the author has first placed
   the work into the stream of commerce. The wisdom behind this
   prohibition against perpetual control over a particular work by the
   author continues despite technology's advancement to a state promising
   such perfect control over all works. To grant copyright holders the
   right to control all uses of works treads dangerously upon First
   Amendment principles and will certainly upset copyright's balance.
   
   Because the DMCA grants copyright holders a new right to control
   access to digital works, this right must be similarly limited by a
   "First Access Rule" that prohibits copyright holders from governing
   each and every lawful access, use, and enjoyment of the work once
   initial access has been authorized. Congress never intended, nor would
   the Constitution permit copyright holders to be granted such a broad
   and sweeping right to control all experiencing of creative expression.
   The access right granted to copyright holders in the DMCA must be
   limited to the first lawful accessing of a work and not each
   subsequent lawful accessing and use of that work.
   
   For example, when a DVD is lawfully purchased, it is implied that the
   purchaser is authorized to access the file contained within the
   physical media in order to view it on whatever platform that person
   uses. A copyright holder should not be granted the right to control
   the consumer's lawful experience with the DVD. Allowing copyright
   holders to tie hardware and software together to control the
   experiencing of the work as in the case of copy protection for DVDs,
   eviscerates copyright law's First Sale Rule and years of careful
   judicial endorsement for this limitation to the copyright holders
   exclusive bundle of rights. Balance requires limitations to the
   perfect control desired for by the copyright industries. Cutting off
   the copyright holder's right to control the lawful purchaser's
   accessing of a particular work after the initial authorization is
   granted ensures that balance can be maintained and all interests are
   protected by the DMCA. Therefore, the Copyright Office should define
   the DMCA's access right narrowly, restricted by a First Access Rule.
   
  Right to Make Digital Fair Use
  
   All classes of works should be exempt from the Act's general
   circumvention ban when the purpose for the circumvention is to make a
   fair use or engage in another non-infringing uses. Because technology
   enables copyright holders to dictate and architect the parameters for
   the public's use and enjoyment of a particular work, the need to
   protect society's interests in access and using the work should be
   given considerable attention. Infringing uses of works can be punished
   under existing theories of copyright law; so allowing circumvention
   for the purpose of engaging in a non-infringing fair use would prove
   harmless to the copyright holder, while it preserves the public's
   interest and right to use the copyrighted expression.
   
   Claims by the copyright industry that such broad additional rights
   should be created to combat its alleged vulnerability in a digital
   environment overlook the fact that technology enables copyright
   holders with greater protection over their works than traditional
   space ever did. Authors have never had the ability to program a book
   to delete itself after a particular date or prohibit the printing or
   copying of any particular page within it.
   
   Indeed, technology provides authors with far greater power over their
   works than the law has been willing to grant them. The power of
   perfect control over use has never granted to an author by copyright
   law. Fair use is part of copyright law's intended design. This new
   power can easily be abused without substantial limitations placed upon
   it to ensure that individuals' rights are preserved as well.
   Therefore, the Copyright Office should recognize a broad exemption for
   all classes of works where the circumvention was engaged to make a
   fair use of the work. Fair use rights are as important in the digital
   environment as they are in traditional space and necessary to achieve
   balance in the law.
   
  Response to Copyright Industry Comments
  
   Comments supplied by the copyright industry recommending no
   limitations be placed on the DMCA's circumvention ban undermine
   Congress' express intent in instructing the Copyright Office to
   rectify the danger and adverse impact it foresaw at the Act's
   inception. Particularly, comments supplied by Time Warner, Sony, and
   the MPAA refuse to acknowledge the potential dangers inherent in
   granting such broad rights to control creative expression.
   
   Additionally claims suggesting that copyright holders are unwilling to
   distribute their works in electronic form in the absence of strong
   technological protection measures ignore the numerous authors and
   composers who are currently taking advantage of the popular and
   nonrestrictive MP3 format to achieve super distribution of their works
   and reach new audiences. Many new business models are being created
   that do not rely upon the traditional property model, and the
   imposition of protection measures "required" by the traditional
   copyright industry interfere with the emerging models that rely upon
   super distribution
   
   Time Warner's (commonly mis-used) example that fair use would not
   permit someone to break into a book store to steal a book is a
   misleading and irrelevant example. If a person has already paid for
   the right to view an e-book or DVD when they purchased it, she is not
   breaking into a third-party's property in order to access it, as Time
   Warner's example asserts. Rather, she may need to break through a
   protection measure in order to view that e-book or DVD on her
   particular operating system. A person reverse engineering a DVD that
   she purchased (her property) is not at all analogous to the breaking
   and entering into a third-party's store to access the work - one is
   clearly fair use the other is clearly theft.
   
   Time Warner also points to the Content Scrambling System (CSS) used to
   prevent DVDs from playing on unsanctioned players. Time admits that
   the strategy for CSS protection is to restrict use and exercise
   control even after access is authorized: "Other technological
   measures, such as CSS, carry certain obligations to restrict copying
   and further distribution of content once access is authorized." (Time
   Warner Comment, page 3). But granting such absolute protection is
   dangerous and not within the ambit of copyright's objective. CSS and
   other schemes which attempt to grant copyright holders the right to
   dictate the terms of fair use to the public, hardly seem very fair or
   supportable by copyright law principles.
   
   Time also admits that DVDs are a unique medium and their introduction,
   "provided much information that could not be included in VHS tapes."
   (Time Warner Comment, page 4). Considering the uniqueness and
   unavailability of the works in other formats, an inability to
   circumvent DVDs to make fair use of them renders the privilege
   meaningless, despite the DMCA's explicit language and commitment to
   support fair use rights in an electronic environment. Time assures
   that no "proper uses" will be hampered, but what Time considers
   "proper" is not the same as what a federal judge would consider fair
   and thus legal. Granting the copyright industry the right to determine
   what uses are "proper" and therefore authorized, grants extremely
   broad and unprecedented rights over access and use of information.
   
   Sony's comment warns that any rulemaking exemption to the DMCA's
   prohibition against circumvention will jeopardize the US's obligations
   under the WIPO treaty. However, US copyright law provided for adequate
   protection for copyrighted works prior to its adoption of the WIPO
   treaty using traditional copyright infringement legal theories. In
   actuality, the US had granted among the strongest protection for
   intellectual property in the world prior to WIPO. Recognizing the need
   for additional exemptions will allow the US to maintain strong and
   adequate protection of IP globally, but lead the world in recognizing
   the need for balance and to protect free expression, fair use, and
   continue to fuel innovation.
   
   In summary, the Copyright Office should heed the advice of the library
   associations, the cryptographers, the non-proprietary software
   developers, academics, and the civil liberties groups and construe the
   DMCA narrowly to provide adequate protections for the interests (other
   than the copyright industry) represented in the copyright bargain.
   Therefore, all classes of works must be exempt from the general
   circumvention prohibition when the purpose for the circumvention is to
   engage in a lawful fair use of a work. The copyright holder's right of
   access must also be limited by a First Access Rule guided by the
   wisdom of copyright's traditional First Sale Rule. Copyright's design
   in a digital world must continue to balance the competing interests
   between authors, publishers, and the pubic fairly and in light of
   copyright's stated objectives to promote the progress of arts and
   useful sciences.
   
     Respectfully submitted,
     Robin D. Gross, Esq.
     Staff Attorney, Electronic Frontier Foundation
     
     _________________________________________________________________
   
                                 Administrivia
                                       
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