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EFFector - Volume 14, Issue 20 - Hollywood Exports Technology Ban Overseas Despite US Abuse

    EFFector       Vol. 14, No. 20       Aug 16, 2001     editor@eff.org

   A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

    In the 180th Issue of EFFector (now with over 28,600 subscribers!):

     * ALERT: Hollywood Exports Technology Ban Overseas Despite US Abuse
     * Scientists Support Professor's Copyright Law Challenge
     * Court Protects Online Anonymity of Corporate Critics
     * Administrivia

   For more information on EFF activities & alerts: http://www.eff.org/

   To join EFF or make an additional donation:
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     _________________________________________________________________

ALERT: Hollywood Exports Technology Ban Overseas Despite US Abuse

  EFF Calls on Public to Intervene in Treaty Process

    Electronic Frontier Foundation ACTION ALERT

    (Issued: August 16, 2001 / Deadline: August 22, 2001)

    Introduction:

   [Para una versión español de esta alarma, que puede ser distribuida
   libremente, vaya a este URL (For a Spanish version of this alert,
   which may be freely distributed, go to this URL):
     http://www.eff.org/alerts/20010816_eff_ftaa_alert.es.html ]

   While Russian graduate student Dmitry Sklyarov potentially faces five
   years in prison under the first criminal prosecution of a
   controversial new US law, the Digital Millennium Copyright Act (DMCA)
   passed at the request of Hollywood in 1998, its backers are now busily
   exporting overseas its dangerous legal theories of excessive copyright
   protection at the price of civil liberties. Worldwide public
   intervention is immediately necessary to restore freedom of speech as
   a value promoted by free societies.

   The Free Trade Area of the Americas (FTAA) treaty process, which is
   under executive power, works to establish trade agreements between 34
   countries in the Western hemisphere including the US. FTAA
   nation-signatories pass legislation in each of their national forums
   that conforms with the treaty's principles. Currently the group is
   negotiating language to include in an international treaty between the
   34 countries that deals with enacting new copyright rules, among other
   issues. The FTAA organization is considering treaty language that
   mandates nations pass anti-circumvention provisions similar to the
   DMCA, except the FTAA treaty grants even greater control to publishers
   than the DMCA.

   The public must intervene to express disapproval of the FTAA's
   proposed anti-circumvention measures in order to correct this trend in
   copyright law. FTAA is currently accepting public feedback on the
   proposed treaty language until August 22. Contact the U.S. Trade
   Representative (or your country's representative) and urge the removal
   of the anti-circumvention measures from incorporation into the final
   FTAA treaty. Already existing theories of liability under US copyright
   law adequately protect the legitimate interests of copyright holders
   without the need to impose anti-technology restrictions on the entire
   public. Rather than adopt even more draconian measures that ban
   socially beneficial technologies in a fantasy of protecting
   copyrights, such as the proposed anti-circumvention measures to FTAA
   attempts, foreign countries should learn from the disastrous US
   experience with the DMCA. They should wisely steer away from such
   over-reaching measures.

    What YOU Can Do:

   EFF calls upon the citizens of the 34 countries affected by this
   treaty, including the US, to submit comments by August 20 (22 at the
   latest) urging the group to remove the provisions from the treaty that
   outlaw the act of circumvention and forbid providing tools for
   circumvention of technological protection measures restricting use of
   copyrighted works. These measures violate the U.S. Constitution's
   guarantee of freedom of speech under the First Amendment, similar
   guarantees in other national constitutions and laws and in the UN
   Universal Declaration of Human Rights, since such tools are necessary
   to exercise lawful uses, including fair use. While protecting
   copyright is important, passing measures that also censor much lawful
   speech goes too far, without ever achieving its objective. The next
   meeting of the FTAA Negotiating Group on Intellectual Property Rights
   is Aug. 22 in Panama, and public comments will be most effective if
   received before this date. This means it should be mailed by Aug. 18
   at the latest, in the US, and even sooner from other countries.
   (Unfortunately, the FTAA site does not provide mechanisms for
   Web-submitted comments.)

   Comments, to be received by the FTAA organization by August 20, should
   be submitted to: 

   Gloria Blue, Executive Secretary, Trade Policy Staff Committee
   Attn: FTAA Draft Text Release
   Office of the U.S. Trade Representative
   1724 F. St., NW, Fifth Floor
   Washington DC 20508 USA

   Non-US writers should also send a copy to their own country's
   intellectual property government officials; list available at:
     http://www.sice.oas.org/int_prop/ip_dir.asp

    Sample Letter:

   This is just an example. It will be most effective if you send
   something similar but in your own words.

     Dear Ms. Blue, Trade Policy Staff Committee, and Negotiating Group
     on Intellectual Property Rights:

     I write to express my grave concern regarding the draft FTAA
     treaty's extreme intellectual property provisions.

     These measures, based on the US Digital Millennium Copyright Act
     (DMCA) give far too much power to publishers, at the expense of
     indivdiuals' rights. The DMCA itself is already under legal
     challenge in the US, has gravely chilled scientists' and computer
     security researchers' freedom of expression around the world for
     fear of being prosecuted in the US, and resulted in the arrest of a
     Russian programmer. The FTAA provisions, which serve no one but
     American corporate copyright interests, are even more overbroad
     than those of the DMCA.

     These provisions would require signatory nations to pass new
     DMCA-style laws that ban, with few or no exceptions, software and
     other tools that allow copy prevention technologies to be bypassed.
     This would violate the U.S. Constitution's guarantee of freedom of
     speech under the First Amendment, and similar guarantees in other
     national constitutions and laws and in the UN Universal Declaration
     of Human Rights, since such tools are necessary to exercise lawful
     uses, including fair use, reverse engineering, computer security
     research and many others.

     I urge you to remove these controversial and anti-freedom
     provisions from the FTAA treaty language. The DMCA is already an
     international debacle. Its flaws - and worse - should not be
     exported and forced on other countries.

     Sincerely,
     [Your full name]
     [Your address]

   Non-US writers should mention their own country's constitution and/or
   laws protecting freedom of expression, of coruse.

   Copies may also be sent by e-mail to some key people in the FTAA
   process:
    kalvarez@ustr.gov (Kira Alvarez - Intellectual Property)
    walter_bastian@ita.doc.gov (Walter Bastian - E-Commerce)
   Non-US contacts available at:
    http://www.ftaa-alca.org/contacts/contpts.asp

    Background:

   Much like the DMCA, the current draft of the FTAA agreement forbids
   the act of circumventing a "technological protection measure" that
   controls the use of a copyrighted work. It also bans making or
   providing tools that could help another to use a copyrighted work.
   Unlike the DMCA, however, the language currently proposed for the FTAA
   treaty doesn't include even a single exemption that would permit
   activities like lawful reverse engineering, protecting privacy, fair
   use rights, encryption research, and countless other reasons a person
   might need to override the publisher's controls. (And the DMCA only
   includes a few very narrow exemptions to the general ban on
   circumvention, but they have so far proven completely useless to
   everyone who has attempted to rely on them.)

   Even though copyright law gives individuals rights such as fair use,
   the DMCA and FTAA's proposed anti-circumvention provisions outlaw all
   tools that are necessary to exercise those rights, effectively killing
   fair use in the digital age. These measures ensure works are prevented
   from taking their place in the public domain, denying the public what
   rightfully belongs to it under the law. The guarantees of free
   expression under the First Amendment, other constitutions & laws in
   other countries, and the United Nations Universal Declaration of Human
   Rights, rightly prevent publishers from having complete control over
   the way in which copyrighted works can be used. But the DMCA and its
   counterpart in the FTAA treaty ignore this principle and would grant
   publishing companies the power to turn individual rights into "product
   features" that can be disabled at the whim of the publisher.

   Since its passage, the DMCA has thus far been used to: censor a
   journalist reporting on a controversial software program; attempt to
   squelch the research of a Princeton professor who discovered the
   vulnerabilities of the music industry's favored technology; and arrest
   a foreign computer programmer for developing software that allows
   lawful purchasers of electronic books to view them in ways not
   supported by a competitor's viewing software. Because it wishes to
   consistently abuse these powers throughout the world, rather than
   merely in the United States, Hollywood and the rest of the copyright
   industry are now attempting to export this legal regime throughout the
   world.

   It is truly ironic that the United States, once the beacon for
   promoting the principles of freedom of expression, is now
   systematically infecting other countries with this dangerous public
   policy choice that will restrict more speech than any law before it.
   FTAA's anti-circumvention provisions represent US imperialism at its
   worst. They seek to impose restrictive laws on both the US and other
   countries, in order to prevent established US businesses from facing
   both domestic and foreign competition. These competitors would offer
   the public much better deals than these businesses wish to offer,
   which is why the small number of companies that control music, movie
   and book distribution seek to have these competitors outlawed. The
   anti-circumvention provisions' terrible effects on freedom of speech,
   scientific advancement, and actual computer security, as well as on
   public libraries and access to knowledge, are merely "incidental"
   damage, suffered by society for the benefit of these businesses.

   To view the proposed FTAA treaty language, see:
     http://www.ftaa-alca.org/ftaadraft/eng/draft_e.doc [MS-Word]

   For more information on the FTAA treaty process, see:
     http://www.ftaa-alca.org/alca_e.asp

    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, 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:
     http://www.eff.org

    Contact:

     Will Doherty, EFF Online Activist / Media Relations
     wild@eff.org
     +1 415 436 9333 x111

     Robin Gross, EFF Intellectual Property Attorney
     robin@eff.org
     +1 415 436 9333 x112

                                  - end -
     _________________________________________________________________


    Electronic Frontier Foundation Media Release

            Scientists Support Professor's Copyright Law Challenge

Electronic Frontier Foundation Exposes "Chilling Effect"

    For Immediate Release: Monday, August 13, 2001

    Contact:

     Lee Tien, EFF Senior Staff Attorney
       tien@eff.org
       +1 510-290-7131 (cell)

     Robin Gross, EFF Intellectual Property Attorney
       robin@eff.org
       +1 415-637-5310 (cell)

     Monica Ortiz, USENIX Press Liaison
       monica@usenix.org
       +1 415-990-5513 (cell)

   Trenton, NJ - Seventeen of the world's top scientists today supported
   Princeton University Professor Edward Felten and his research team's
   challenge to the Digital Millennium Copyright Act (DMCA) on free
   speech grounds. Prominent academics, cryptographers, software
   programmers, and scientific conference organizers explained to a
   federal court the stifling effects of the DMCA on scientific research
   and freedom of expression.

   The Electronic Frontier Foundation (EFF) represents the research team
   in a lawsuit filed June 6 asking a federal judge to declare that the
   scientists have a First Amendment right to publish their research both
   at the USENIX Conference in Washington, DC, and elsewhere. USENIX,
   fearful of threats that had been made against the organizers of the
   prior conference, has joined the suit.

   In his latest declaration to the court, Professor Felten explained, "I
   understand that Defendants advocate an interpretation of the DMCA that
   would outlaw analysis of systems that might be used to control the use
   of copyrighted materials.... [S]uch an interpretation would
   effectively prevent analysis of critical systems, and so would have a
   disastrous effect on education, research, and practice in computer
   security."

   He further commented, "Not only in computer science, but also across
   all scientific fields, skeptical analysis of technical claims made by
   others, and the presentation of detailed evidence to support such
   analysis, is the heart of the scientific method. To outlaw such
   analysis is to outlaw the scientific method itself."

   The case arose after scientists from Princeton University, Rice
   University, and Xerox tried to publish research that reveals flaws in
   the recording industry's control systems for digital music at an April
   2001 conference. The recording industry claimed that a 1998 law called
   the DMCA prohibited the presentation of the research paper. In a
   series of e-mails and conference calls to the researchers, their
   universities, and conference organizers, recording industry attorneys
   intimidated the researchers into withdrawing their paper from the
   April conference. Hours after the paper was withdrawn, representatives
   of the Recording Industry Association of America (RIAA) issued a press
   release claiming that they had never intended to prevent scientific
   speech.

   Last month, the RIAA asked the court to dismiss the current lawsuit
   after sending a letter to the court stating that it would allow the
   conference to go forward, so no case or controversy exists for the
   court to decide. The EFF legal filing today rebuts that claim and
   reveals the chilling effect felt throughout the scientific community
   since Congress passed the DMCA and the recording industry started
   threatening researchers.

   In legal declarations supporting the researchers, scientists worldwide
   expressed concern about traveling to the United States, where the FBI
   has already arrested and jailed a programmer for allegedly writing
   software or conducting research that could help someone use a
   copyrighted work in ways disallowed by the publisher.

   Niels Ferguson, a prominent Dutch cryptographer who recently
   discovered major flaws in a commercial high-definition video system,
   told the court, "Despite the fact that I performed all the work in
   Amsterdam, I could face arrest if I visit the US after my research had
   found its way into the jurisdiction. My research is silenced since I
   cannot talk about my scientific results to my colleagues and peers, as
   is now the case since the DMCA became law in the US. Scientific
   freedom is not only threatened under this law, it is demonstrably
   curtailed."

   The DMCA prohibits providing information that other people may use to
   circumvent the technological protection measures placed on digital
   files. In this case, the recording industry developed watermark
   technologies to help control how consumers can use digital music.

   Professor Felten's team discovered that it was easy to circumvent the
   technologies.

   "The recording industry has done untold damage by their threats to
   Felten and the other researchers, their universities, and the
   conference organizers. The resulting chilling effect on the broader
   scientific community continues unabated," said Robin Gross,
   intellectual property attorney for EFF. "We on the Felten legal team
   will work to ensure that industry can no longer use the DMCA to
   threaten freedom of speech and scientific progress."

   The eventual presentation of the Felten research team's SDMI Challenge
   results, Aug. 15, 2001, USENIX Security Conference, Washington DC, is
   available as an archived webcast at:
     http://www.technetcast.com/sdmi-challenge.html

    The New Documents:

   Declaration of Professor Ed Felten (Princeton University):
     http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_felten_decl.html

   Declaration of the USENIX Association:
     http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_usenix_decl.html

   Declaration of the Association for Computing Machinery (ACM):
     http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_acm_decl.html

   Declaration of the Computing Research Association (CRA):
     http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_cra_decl.html

   Declaration of Prof. Andrew W. Appel (Princeton U.):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_appel_decl.html

   Declaration of cryptographer Matt Blaze (AT&T Laboratories):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_blaze_decl.html

   Declaration of British programmer Alan Cox (Red Hat UK Ltd.):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_cox_decl.html

   Declaration of Scott Craver (Princeton U.):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_craver_decl.html

   Declaration of Howard Ende (General Counsel for Princeton U.):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_ende_decl.html

   Declaration of Dutch cryptographer Niels Ferguson (MacFergus BV):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_ferguson_decl.html
   Ferguson on the DMCA: "Censorship in action: Why I don't publish my
   HDCP results":
    http://www.macfergus.com/niels/dmca/

   Declaration of John McHugh (general chair of the Information Hiding
   Workshop):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_mchugh_decl.html

   Declaration of computer security researcher Michael Reiter (Bell
   Labs/Lucent Technologies):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_reiter_decl.html

   Declaration of cryptographer Bruce Schneier (Counterpane Internet
   Security):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_schneier_decl.html

   Declaration of Asst. Prof. Dan Wallach (Rice U.):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_wallach_decl.html

   Declaration of Min Wu (Princeton U.):
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_wu_decl.html

   [More declarations coming soon.]

    More Key Documents:

   RIAA/SDMI April 2001 letter threatening Professor Felten and his team:
    http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010409_riaa_sdmi_letter.html

   Professor Felten's website:
    http://www.cs.princeton.edu/sip/sdmi/

   Listen to an audio file of the press conference held when the case was
   launched [MP3]:
    http://www.eff.org/IP/DMCA/Felten_v_RIAA/felten_audio.html

   EFF's & Professors' First Amended Complaint:
 http://eff.org/Cases/Felten_v_RIAA/20010626_eff_felten_amended_complaint.html

   EFF's & Professors' Original Complaint:
    http://eff.org/Cases/Felten_v_RIAA/20010606_eff_felten_complaint.html

   RIAA's Memorandum in Support of Motion to Dismiss [PDF file]:
    http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010712_riaa_mtd_memo.html

   EFF/Felten Opposition Brief against motion to dismiss:
     http://eff.org/Legal/Cases/Felten_v_RIAA/20010813_eff_felten_brief.html

   For more information on the August USENIX Security conference:
     http://www.usenix.org/events/sec01/


    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, 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:
     http://www.eff.org/

    About USENIX:

   The USENIX Association, an organization representing some 10,000
   computer research scientists is dedicated to the free exchange of
   scholarly information through its many conferences and publications.
   See its website at:
     http://www.usenix.org/

                                  - end -
     _________________________________________________________________


Court Protects Online Anonymity of Corporate Critics

  Electronic Frontier Foundation Defends Yahoo! Forum Posters

    Electronic Frontier Foundation Media Release

    For Immediate Release: August 13, 2001

    Contact:

     Lauren Gelman, EFF Public Policy Dir.
       gelman@eff.org
       +1 415-436-9333 x106 or +1 202-487-0420 (cell)

   San Jose, CA - On Friday, August 10, attorneys from the Electronic
   Frontier Foundation (EFF) successfully defended the speech rights of
   two anonymous Yahoo! message board posters. A California State court
   found that the right of Internet posters to speak anonymously
   outweighed a company's desire to unmask their identities.

   The case involves a subpoena issued by Pre-Paid Legal Services, Inc.,
   of Oklahoma (PPLS) requesting the identity of eight posters on
   Yahoo!'s "Pre-Paid" message board, an online forum for discussions
   related to the company. EFF represents two of the J. Does PPLS
   subpoenaed to unmask their identities as part of a dispute between
   PPLS and another (identified) person.

   PPLS argued that it needed the Does' identities to determine whether
   the Internet posters had to comply with a voluntary injunction
   preventing former sales associates who work for a competitor from
   revealing PPLS's trade secrets. EFF senior staff attorney Lee Tien
   argued that the messages cited by PPLS indicated only that the Does
   were critical of the company and how it treats its associates.
   Revealing the identity of these anonymous speakers would give PPLS the
   opportunity to punish the anonymous posters simply for criticizing the
   company.

   Ruling from the bench, the Honorable Neil Cabrinha of the Santa Clara
   County Superior Court quashed the subpoena to Yahoo! requesting the
   posters' identities. Judge Cabrinha agreed with EFF that the messages
   did not appear to violate the injunction, and therefore the First
   Amendment protection of anonymous speech outweighed PPLS's interest in
   learning the identity of the speakers.

   "This is a great victory for anonymous speech," said EFF's Tien. "I
   believe Judge Cabrinha's ruling will signal other companies that
   judges will not permit corporate executives to abuse the courts in
   ferreting out their critics."

   "EFF will continue to step in and fight for the right of individuals
   to speak anonymously," said Lauren Gelman, EFF's director of public
   policy. "We expect to see many similar decisions recognizing that
   First Amendment protections do not disappear just because someone
   chooses to speak online."

   The documents filed in the case (PPLS v. Sturtz) are available at:
     http://www.eff.org/Legal/Cases/PrePaid_Legal_v_Sturtz/

   More information on the similar In re: 2TheMart.com case can be found
   at:
     http://www.eff.org/Legal/Cases/2TheMart_case/

  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, 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:
     http://www.eff.org/

                                  - end -
     _________________________________________________________________


EFF Thanks LabTam Finland for Generous Software Donation

   The EFF wants to thank the folks at LabTam Finland for their generous
   software donation of their WinaXe product. WinaXe is a Windows program
   that allows Windows to run as an Linux X-windows terminal. This allows
   the Windows users to run Unix gui applications and even run an entire
   Unix desktop on their laptop computers. By using this product our
   users can run Windows and Linux at the same time and can cut and paste
   information between the two operating systems. And a single Linux
   server provides the desktop for all our Linux users. LabTam website:
     http://www.labf.com/

   The EFF appreciates companies like LabTam who make useful software and
   donate licenses to EFF. This helps us become more effective in our
   struggle to protect civil liberties.
     _________________________________________________________________


Administrivia

   EFFector is published by:

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   Editors:
   Katina Bishop, EFF Education & Offline Activism Director
   Stanton McCandlish, EFF Technical Director/Webmaster
   editors@eff.org

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