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EFFector - Volume 15, Issue 33 - Hollywood Loses Bid to Limit Representation in ReplayTV Case

EFFector      Vol. 15, No. 33     October 25, 2002      ren@eff.org 

A Publication of the Electronic Frontier Foundation	 ISSN 1062-9424 


In the 232nd Issue of EFFector: 

*	Hollywood Loses Bid to Limit Representation in ReplayTV Case
*	Electronic Frontier Foundation Helps Dive Shop Resist Feds
*	Share Your DMCA Horror Stories
*	EFF Needs Your (Tax-Deductible) Equipment Donations!
*	Deep Links (8): Microsoft Using Kazaa as a Marketing Portal
*	Administrivia


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

To join EFF or make an additional donation: 
  http://www.eff.org/support/
EFF is a member-supported nonprofit. Please sign up as a member 
today! 
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* Hollywood Loses Bid to Limit Representation in ReplayTV Case

Electronic Frontier Foundation Gains Access to Lawsuit Docs

Los Angeles - A federal court last week affirmed the right of the 
Electronic Frontier Foundation (EFF) to represent ReplayTV owners in 
their lawsuit against 28 motion picture and television industry 
companies. 

Craig Newmark of craigslist.org and four other ReplayTV customers are 
suing the entertainment companies to clarify their rights to record 
television programs and to skip commercials using digital video 
recorders (DVRs). Hollywood representatives have publicly stated that 
skipping commercials is "stealing." 

The ReplayTV customers are represented by EFF attorneys and Ira 
Rothken of the Rothken Law Firm. 

The entertainment companies tried to prevent EFF attorneys from 
accessing the vast majority of documents that the court ordered the 
companies to produce as part of the legal discovery process. EFF 
attorneys sought access because they believe these documents are 
critical to preparing the ReplayTV owners' case. The entertainment 
companies claimed that EFF is a "competitor" with Hollywood because 
of its public statements about copyright law policy and advocacy to 
Congress on pending and current technology legislation, including the 
proposed Consumer Broadband Digital Television Promotion Act 
(CBDTPA). The ruling sought by the entertainment companies would have 
effectively disqualified EFF attorneys as legal counsel for the 
ReplayTV owners in this case. 

After hearing argument from both EFF and the entertainment companies' 
attorneys, Magistrate Judge Eick of the U.S. District Court, Central 
District of California, last week ruled that EFF has the right to 
access the documents in question. Magistrate Judge Eick ruled that 
the restriction sought "would impair significantly the prosecution of 
the Newmark Plaintiffs' claims by effectively preventing attorneys 
from the Electronic Frontier Foundation from serving as litigation 
counsel for the Newmark Plaintiffs" and found that the entertainment 
companies "have failed to demonstrate a sufficiently significant 
disclosure-related risk or danger" from disclosure of their 
confidential information by EFF attorneys to justify complete denial 
of access. 

"The entertainment companies' motion was an extraordinary effort to 
prevent EFF attorneys from representing our clients," stated EFF 
Legal Director Cindy Cohn, who argued the case before Judge Eick. "We 
are pleased that the court upheld EFF's right to both represent our 
clients in litigation and to engage in public advocacy before 
Congress and in public arenas." 

"The restriction sought by the entertainment companies would have set 
a very disturbing precedent for the many organizations, like EFF, 
which engage in both public interest litigation and public advocacy," 
noted EFF Staff Attorney Gwen Hinze. 

The entertainment companies have advised EFF that they will be 
seeking a review of Magistrate Judge Eick's decision by Judge 
Florence-Marie Cooper. 

Links:

For this release:
http://www.eff.org/Cases/Newmark_v_Turner/20021015_eff_pr.html 

Latest court ruling in Newmark v Turner case:
http://www.eff.org/Cases/Newmark_v_Turner/20021015_motion_denied.html 

More documents from Newmark v Turner case:
http://www.eff.org/Cases/Newmark_v_Turner/ 

EFF Fair Use FAQ:
http://www.eff.org/IP/eff_fair_use_faq.html 

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* Electronic Frontier Foundation Helps Dive Shop Resist Feds

Prevents "Fishing Expedition" into Privacy of Scuba Divers

San Francisco - The Electronic Frontier Foundation (EFF) recently 
announced that it assisted Beverly Hills scuba diving store Reef 
Seekers Dive Co. in resisting a federal grand jury subpoena demanding 
that the dive shop identify everyone who had taken, but not finished, 
its recreational dive classes over the last three years. 

After a call from the EFF indicating that it intended to defend the 
dive shop in court, U.S. Attorneys withdrew the subpoena, and it has 
not been reissued. 

The subpoena appears to have been based upon unsubstantiated fears 
that a terrorist attack using underwater explosives could be carried 
out by partially-trained, recreational divers. Ken Kurtis, co-owner 
of Reef Seekers, stated: "The scenario the FBI was painting--of 
divers swimming into a harbor with explosives to blow up ships--is 
extremely difficult and far-fetched for even the most skilled and 
experienced diver, and would be next-to-impossible for a newly 
certified diver, let alone one who had dropped out of a class and 
never completed training." 

The FBI had already successfully sought information about every 
certified diver in the United States through the private 
certification organizations PADI, NAUI, and SSI. To many divers' 
dismay, these dive organizations handed over information about their 
members without either seeking a legitimate subpoena or notifying 
their members that their privacy was being compromised. 

EFF Legal Director Cindy Cohn wrote an open letter to PADI pointing 
out its lack of care for its customers' privacy. 

"The rules requiring the government to issue reasonable subpoenas 
were enacted by Congress to provide an important check on 
governmental power," explained Cohn. "It is unfortunate that PADI and 
the other organizations did not use them to protect their members." 

"The Reef Seekers case indicates that, when faced with having to 
explain itself to a federal court, the U.S. Attorneys' Offices will 
not pursue broad, unfocused fishing expeditions into the lives of 
average Americans," concluded Cohn. 

EFF hopes that this example will embolden others who are facing 
overly broad requests for information from law enforcement to require 
full compliance with the legal procedures provided by law to protect 
both themselves and the privacy of their customers. 

Links:

For this release:
http://www.eff.org/Privacy/Surveillance/20021021_eff_pr.html 

For EFF's letter to PADI:
http://www.eff.org/effector/HTML/effect15.19.html#III 

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* Tell Us Your DMCA Horror Stories!

EFF and the U.S. Copyright Office would like to hear from people who 
are unable to use their digital media because of the Digital 
Millennium Copyright Act (DMCA). 

Section 1201(a)(1)(A) of the DMCA provides that "No person shall 
circumvent a technological measure that effectively controls access 
to a work protected under this title." Subparagraph (B) limits this 
prohibition. It provides that anticircumvention "shall not apply to 
persons who are users of a copyrighted work which is in a particular 
class of works, if such persons are, or are likely to be in the 
succeeding 3-year period, adversely affected by virtue of such 
prohibition in their ability to make noninfringing uses of that 
particular class of works under this title." The Copyright Office is 
tasked with determining which classes of works should be exempted 
from the anticircumvention provisions. 

From now until December 18, 2002, the Copyright Office is accepting 
comments on the effects of the DMCA on access to specific types of 
digital media. If you have difficulty making lawful use of your 
digital media because of technological access controls, it is very 
important to let the Copyright Office know by sending it comments 
that specifically explain these problems. Also, please contact EFF 
and let us know about your difficulties and we will try to 
incorporate your concerns into the comments EFF is submitting to the 
Copyright Office. It is vital that we provide the Copyright Office 
with numerous concrete examples of individuals whose lawful use of 
copyrighted works is impaired by access controls. Without concrete 
examples, it will be very dfficult to craft these provisions in a 
less restrictive way. For more information on the Copyright Office 
Rulemaking proceeding under the DMCA, please see: 

http://www.loc.gov/copyright/1201/

Contact Robin Gross with your stories:

robin@eff.org 

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* EFF Needs Your (Tax-Deductible) Equipment Donations!

EFF is looking for an LCD projector and some folding chairs. If 
you've got one or both to donate we can give you a tex-deductible 
receipt! Thanks for helping us make the place more hospitable. 
Contact Ren with questions or offers: 

ren@eff.org 

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

~ Microsoft Using Kazaa as a Marketing Portal
MS releases promotional videos on Kazaa in a prime of example of 
P2P's legitimate uses.
http://www.latimes.com/technology/la-fi-
micro21oct21004425,0,5120889.story 

~ New Digital Fair Use Resolution in Congress
Sen. Ron Wyden and Chris Cox recently introduced a "bipartisan, 
bicameral joint resolution that seeks to assure that the fair use 
rights of individuals are not eroded in the digital world."
http://www.backstage.com/backstage/features/article_display.jsp? 
vnu_content_id=1746587 

~ Band Can't Sell Own Music on EBay
Wired's Brad King reports on how Ebay's confusion about the DMCA kept 
one artist from selling his own music on the popular auction site.
http://www.wired.com/news/digiwood/0,1412,55926,00.html 

~ The Palladium Paradox
MIT's technology review of Microsoft's Palladium.
http://www.technologyreview.com/articles/wo_weinberger102502.asp?p=0 

~ Washington State Congressman Attempts to Outlaw GPL
Members of Congress are petitioning the cyber-security czar to ban 
the Gnu Public License (GPL) for use in government-funded research.
http://newsvac.newsforge.com/newsvac/02/10/23/1247236.shtml?tid=4 

~ CCIA letter to White House on DMCA
The Computer & Communications Industry Association's letter of 
support for DMCA reform.
http://www.ccianet.org/letters/clarke_dmca.pdf 

~ Music Industry Spins Falsehood
Janis Ian on why you shouldn't trust everything the music industry 
says about technology.
http://www.usatoday.com/usatonline/20021023/4557245s.htm 

~ California's Office of Privacy Protection
Much useful information about both federal and state privacy laws. 
(EFF senior staff attorney Lee Tien is on OPP's advisory council.)
http://www.privacy.ca.gov/ 

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Administrivia

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Editor:
Ren Bucholz, Activist
  ren@eff.org 

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