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EFFector - Volume 14, Issue 37 - Judge Denies Scientists' Free Speech Rights


EFFector - Volume 14, Issue 37 - Judge Denies Scientists' Free Speech Rights

  EFFector       Vol. 14, No. 37       Nov. 30, 2001   
  A Publication of the Electronic Frontier Foundation     ISSN 1062-9424   
In the 197th Issue of EFFector:

  * Judge Denies Scientists' Free Speech Rights
  * EFF Asks Court to Eject DVD Case
  * Court Rules Internet Publication of Software Not Free Speech
  * EFF Update on Sklyarov Case
  * EFF Needs Your Help This Holiday Season!
  * Administrivia

For more information on EFF activities & alerts:

To join EFF or make an additional donation:
EFF is a member-supported nonprofit. Please sign up as a member today!




Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, November 28, 2001

Trenton, NJ - The Electronic Frontier Foundation (EFF) Wednesday
represented a team led by Princeton Professor Ed Felten in the first
skirmish of a case challenging the Digital Millennium Copyright Act (DMCA).
Without addressing important First Amendment considerations and after less
than 25 minutes of debate, a plainly hostile Judge Garrett Brown of the
Federal District Court in Trenton, New Jersey, dismissed the case. EFF
intends to appeal.

"This judge apparently believes that the fact that hundreds of scientists
are currently afraid to publish their work and that scientific conferences
are relocating overseas isn't a problem," noted Robin Gross, EFF
Intellectual Property Attorney. "This decision is clearly contrary to
settled First Amendment law, and we're confident that the 3rd Circuit Court
will reverse it on appeal."

The court granted two separate motions to dismiss the case, one brought by
the Department of Justice (DOJ) and the second by private defendants led by
the Recording Industry Association of America (RIAA).

"Since the government and industry could not even agree on what the DMCA
means, it is not surprising that scientists and researchers are deciding
not to publish research for fear of prosecution under the DMCA," said EFF
Legal Director Cindy Cohn. "Scientists should not have to ask permission
from the entertainment industry before publishing their work."

Professor Felten and a team of researchers from Princeton University, Rice
University, and Xerox discovered that digital watermark technology under
development to protect music sold by the recording industry has significant
security vulnerabilities. The recording industry, represented by the
Recording Industry Association of America (RIAA) and the Secure Digital
Music Initiative (SDMI) Foundation, threatened to file suit in April 2001
if Felten and his team published their research at a conference. They
subsequently issued a press release denying having threatened the
researchers. On behalf of the research team, EFF then filed a lawsuit
seeking a clear determination that publication and presentation of this and
other related research is speech protected under the US Constitution both
at this conference and at other conferences in the future.

Together with USENIX, an association of over 10,000 technologists that
publishes such scientific research, Princeton Professor Edward Felten and
his research team had asked the court to declare that they have a First
Amendment right to discuss and publish their work, even if it may discuss
weaknesses in the technological systems used to control digital music. The
DMCA, passed in 1998, outlaws providing technology and information that can
be used to gain access to a copyrighted work.

For all of the motions and declarations in the 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:

                                  - end -                                  




Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, November 28, 2001

San Jose, CA - The Electronic Frontier Foundation (EFF) Wednesday asked a
California Superior Court judge to dismiss a case involving a DVD
descrambling program called DeCSS because that program is widely available
on the Internet and cannot be considered a trade secret. The DVD Copy
Control Assocation (DVD CCA) filed the lawsuit against Andrew Bunner and
others in December 1999, alleging that Web publishers of DeCSS unlawfully
misappropriated trade secrets.

The case, officially known as DVDCCA v. Bunner, could set an important
precedent in how far trade secret law can affect First Amendment free
speech rights.

Building on a November 1st victory when the California Court of Appeal
reversed the court's preliminary injunction confirming that the publication
of DeCSS is protected by the First Amendment, Bunner and his legal team
Wednesday asked the court to recognize that - because it is widely
available - the information contained in DeCSS cannot be a "secret"
protected under trade secret law.

California trade secret law prohibits injunctions once a trade secret
becomes generally known to the public. Noting that Bunner found DeCSS in
the public domain and simply republished it, the motion also relies on
declarations from five leading academic scientists in the area of computer
who confirm that DeCSS is not a secret.

The evidence includes the following facts:

  * Hundreds, if not thousands, of sites on the Internet continue to
    publish DeCSS where it may be freely examined, copied, or downloaded.
  * The CSS algorithms and keys have been the subject of worldwide academic
    study, research, teaching, and communication. Professors at
    Carnegie-Mellon, Berkeley and Lulea University of Sweden state that
    they use DeCSS as an example in their courses of how to avoid designing
    an encryption system easily vulnerable to circumvention.
  * Wired Magazine and the Massachusetts Institute of Technology's journal
    Technology Review have published DVD descrambling programs. The Wall
    Street Journal has published one of the CSS encryption keys.
  * DVD CCA has ceased policing its alleged CSS trade secrets, claiming it
    would be too burdensome for it to examine every website now posting a
    DVD descrambling program.

Based on these facts, EFF told the court that "DVD CCA seeks to put the
Court in the impossible position of trying to put the genie back into the

DeCSS is a controversial program that unscrambles the information on DVDs.
It was created as part of a project to develop a DVD player for computers
running the Linux operating system. DeCSS was published on the Internet in
1999 by a Norwegian teenager and quickly republished by hundreds of other
publishers around the globe. In early 2000, DVD CCA filed the lawsuit
against hundreds of Web publishers seeking to ban its publication. Only one
of the publishers, Andrew Bunner, has been subject to the jurisdiction of
the California court. If Bunner's motion is successful, the other
publishers of DeCSS will also be free from the chilling effects of this
California lawsuit.

Andrew Bunner is represented in the Superior Court by Richard Wiebe of San
Francisco, Allonn Levy of San Jose's HS Law Group, Tom Moore of Tomlinson
Zisko Morosoli & Maser in Palo Alto, Professor Eben Moglen of Columbia
University Law School, and Electronic Frontier Foundation attorneys Cindy
Cohn and Robin Gross.

The following academics and scientists provided supporting declarations:

  * Princeton Computer Science Professor Edward Felten (on sabbatical this
    year at Stanford Law School's Center for the Internet and Society;
    chief technical adviser to the U.S. Department of Justice in United
    States v. Microsoft)
  * University of California-Berkeley Computer Science Professor David
  * Carnegie-Mellon University Principal Computer Scientist Dr. David
  * Carnegie-Mellon University Computer Scientist Gregory Kesden
  * Computer Scientist Roland Parviainen of Sweden's LuleƎ University of

Current EFF filing in DVDCCA v. Bunner:

The 6th District Court of Appeal decision overturning the injunction:

More information on DVDCCA v. Bunner including legal filings, expert
declarations, and media releases:

                                  - end -                                  




Electronic Frontier Foundation Media Advisory

For Immediate Release: Wednesday, November 30, 2001

New York - The 2nd Circuit Court of Appeals Wednesday dealt a sharp blow to
Internet speech, upholding a lower court decision banning a magazine from
publishing the computer program DeCSS.

In making the decision, the court rejected pleas from 46 intellectual
property professors, 17 top computer scientists, the Association for
Computing Machinery, the American Library Association, the ACLU, and the
Reporters Committee for Freedom of the Press, among others.

The case, Universal v. Reimerdes (also known as the 2600 Case), arose out
of the publication of the computer program known as DeCSS on the 2600
Magazine website. DeCSS was first published by a Norwegian teenager in 1999
and subsequently republished by thousands of people around the world. The
program allows users to decrypt DVDs and was originally developed to aid an
international project to develop a DVD player for computers running the
Linux or GNU/Linux operating system. 2600 Magazine, along with the Village
Voice, the San Jose Mercury News, and the Wall Street Journal, covered the
story of the program's development and publication. The major movie studios
sued 2600 Magazine, claiming that the Digital Millennium Copyright Act
(DMCA) bans publication of the program.

"The 2nd Circuit decision is confusing," noted EFF Legal Director Cindy
Cohn. "On the one hand the court strongly agreed with us that computer
programs are protected expression. On the other hand it found that, when
they are published on the Internet, the fact that recipients might easily
misuse a computer program justifies a complete ban."

The DMCA, while passed as an attempt to prevent copyright infringement, has
become a strong tool of the entertainment industry to stifle speech. In
addition to censoring 2600 Magazine, the DMCA has frightened researchers
all over the world from publishing their research, including scientists
from Princeton University, Rice University, and Xerox PARC in the Felten
case. The Department of Justice is using the DMCA to prosecute computer
programmer Dmitry Sklyarov for distributing a program that allowed fair
uses of e-books and demonstrated the weaknesses in the security of
electronic book reading software.

"The EFF had argued that the DMCA should be read to only prohibit
publication of computer programs when those programs are intended to help
copyright infringers," noted EFF Intellectual Property Attorney Robin
Gross. "The 2nd Circuit rejected the intent argument, instead upholding a
complete ban on publication of these programs."

Even more surprising was the Court's endorsement of liability for merely
making a hypertext link to material banned by the DMCA. "The Court's
standard provides for liability for knowingly publishing a program 'with
the purpose of disseminating' it," noted EFF Senior Staff Attorney Lee
Tien. "Since most publishing is done with the purpose of sharing the
information published, this standard creates a huge potential liability for

"I can't say I am surprised about the decision," noted Emmanuel Goldstein,
publisher of 2600 Magazine, "but this is an important case for Internet
speech and I will carefully consider whether to take it to the U.S. Supreme

The latest decision in Universal v. Reimerdes is available at:

Additional information on the Universal v. Reimerdes case:

    Cindy Cohn, EFF Legal Director
      +1 415-436-9333 x108

    Robin Gross, EFF Intellectual Property Attorney
      +1 415-436-9333 x112

                                  - end -                                  



This is an update from the status conference held Monday in the case
against Dmitry Sklyarov (a visiting Russian programmer arrested in the US
for allegedly violating the US Digital Millennium Copyright Act by writing,
in Russia, software that is legal in Russia), and Elcomsoft (his
Russia-based employer). As expected, the only issue discussed at the
hearing was the setting of dates for pre-trial motions. The issues were
divided into two categories: DMCA (possible claims are unconstitutionality
including vagueness, the First Amendment, and lack of constitutional
authority) and non-DMCA issues (possible issues are jurisdiction, a bill of
particulars, and the conspiracy charge).

The non-DMCA dates are:
Jan. 14, 2002, the opening brief is due,
Feb. 11, the opposition (govt.) brief is due,
Feb. 25, Dmitry's reply brief is due,
Mar. 4, 2002, hearing.

The DMCA dates are:
Jan. 28, the opening briefs and amici are due,
Mar. 4, the opposition (govt) brief is due,
Mar. 18, the reply brief is due
Apr. 1, hearing

Assuming the case is not dismissed because of the motions, there will be a
hearing to set a trial date on Apr. 15, 2002.

                                  - end -                                  



Thank you for your ongoing support of the EFF. Without it, we couldn't be
effective in protecting online rights. We are asking you to further your
support with a supplemental holiday donation.

The current climate is very difficult for civil liberties indeed, many of
the rights that EFF and others have fought so hard to secure are in
jeopardy of disappearing. EFF is fully engaged in preserving existing
rights and in fighting new legislation that would potentially curtail
individual liberties. These efforts along multiple fronts press hard upon
our resources, and we need your support this holiday season to ensure that
a rational voice for individual rights continues to be heard. Security and
civil liberties are not mutually exclusive. We must come up with solutions
that create a secure infrastructure but do not place limitations on our

Your contributions support these and other EFF efforts to defend civil
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Thanks in advance for your help!

                                  - end -                                  



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