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EFFector - Volume 15, Issue 40 - Hollywood Loses Again in ReplayTV Case

EFFector       Vol. 15, No. 40       December 20, 2002     ren@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 239th Issue of EFFector:

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Electronic Frontier Foundation Wins Access to Lawsuit Docs

Los Angeles - Another federal judge 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 have tried repeatedly to prevent EFF attorneys from accessing 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. The ruling sought by the entertainment companies would have effectively disqualified EFF attorneys as legal counsel for the ReplayTV owners in this case.

In October, Magistrate Judge Eick ruled in favor of EFF pointing out 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 appealed this decision and U.S. District Court Judge Cooper reaffirmed today the earlier ruling in favor of EFF commenting in a written opinion that: "The Court finds factual support in the record to support the conclusion that EFF attorneys would be precluded from viewing a number of documents that are relevant to the Newmark Plaintiffs' contention that their uses of the RePlayTV DVRs constitute fair use of the Entertainment Companies' copyrighted works."

"We are pleased that the courts have twice recognized the importance of access to discovery documents in the ReplayTV case," said EFF Intellectual Property Attorney Gwen Hinze. "EFF is now committed to protecting the fair use rights of ReplayTV owners as this case moves forward."

"Public interest litigation and public advocacy groups like EFF can now breath a sigh of relief," added EFF Legal Director Cindy Cohn. "The entertainment companies were unable to set a precedent for pushing us out of cases litigated in the public interest simply for expressing our views on other matters."

Links:
For this release:
http://www.eff.org/Cases/Newmark_v_Turner/20021216_eff_pr.html

Latest court ruling in Newmark v Turner case:
http://www.eff.org/Cases/Newmark_v_Turner/20021216_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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Dmitry Sklyarov Odyssey Leaves Prosecutor Empty-Handed

San Francisco - The highly publicized case that began with the arrest of Russian programmer Dmitry Sklyarov this week came to a close. A federal jury in San Jose recently returned a verdict of not guilty on all counts in the criminal trial of Sklyarov's employer, a Russian software company called Elcomsoft Ltd. The case was the one of the first criminal cases to be brought under the Digital Millennium Copyright Act of 1998 ("DMCA").

"Today's jury verdict sends a strong message to federal prosecutors who believe that tool makers should be thrown in jail just because a copyright owner doesn't like the tools they build," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "We have said from the beginning that Dmitry Sklyarov, Elcomsoft, and technologists like them are not pirates, and today a jury agreed."

The case began in July 16, 2001, when the FBI arrested Dmitry Sklyarov at the Defcon conference in Las Vegas. Sklyarov was the lead engineer on an Elcomsoft product known as the Advanced eBook Processor (AEBPR), which software giant Adobe Systems Inc. claimed was a "circumvention tool" prohibited by the DMCA.

* Party at EFF to Celebrate the Victory!

On Saturday, December 21, 2002, freedom-loving people will have a party in San Francisco to celebrate a total acquital in the first criminal prosecution under the controversial Digital Millennium Copyright Act (DMCA).

Who: Freedom-loving people (that's you)
What: Party to celebrate the Elcomsoft verdict
Where: Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
When: Saturday, December 21, 2002, 8:00 PM
Why: DMCA reform isn't just about computer programmers any more. 12 randomly chosen American people say the DMCA has gone too far.

Contact: Don Marti dmarti@zgp.org
650-967-1840

Links:
For this release:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20021217_eff_pr.html

EFF FAQ on U.S. v. Elcomsoft:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/us_v_elcomsoft_faq.html

Larry Lessig editorial about the case in the New York Times:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20010730_lessig_oped.html

EFF Elcomsoft/Sklyarov case archive:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/

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Urges Copyright Office to OK Consumer Uses of CDs and DVDs

San Francisco - The Electronic Frontier Foundation (EFF) today urged the Librarian of Congress (LoC) to recognize the rights of consumers to skip past commercials on DVDs, view DVDs sold only outside the U.S., and play copy-protected CDs on the players of their choice.

EFF has long sought exemptions from the Digital Millennium Copyright Act's (DMCA) prohibition on bypassing technological protections used to limit consumer use of DVDs and copy-protected CDs.

Public-interest advocacy organization Public Knowledge joined EFF in filing the comments to the LoC, prepared with the assistance of law students at the Glushko-Samuelson Intellectual Property Clinic of Washington College of Law.

EFF asked the LoC to create DMCA exemptions for four types of digital media:

1) music on copy-protected CDs

2) movies on DVDs whose region coding restrictions prevent playback on U.S. players

3) movies on DVDs which prevent skipping of commercials

4) movies in the public domain released on DVD

If granted, these exemptions will allow consumers to make full use of the music and movies that they've lawfully obtained.

The entertainment industry encodes DVDs by region sold in an attempt to control release and pricing of movies sold worldwide. Region 1 includes the United States.

"Many great films are available only outside the U.S.," said EFF Staff Attorney Gwen Hinze. "We urge the LoC to allow film buffs to play movies they've legitimately purchased outside the U.S. without fear of breaking the law."

The recent distribution of "copy-protected" CDs has made some CDs unplayable on PCs and DVD players. "The music industry intends to stop copying, but the copy-protected CDs they sell are completely unplayable in many PCs and newer disc players," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "When I buy a CD, I should at least be able to play it on my CD players."

The LoC has called for comments as part of a triennial process of granting exemptions to the anti-circumvention provisions of the DMCA. Legislators charged the LoC and the U.S. Copyright Office with reviewing the effect of the anti-circumvention provisions on the public's ability to make non-infringing uses of copyrighted works secured by digital protection technologies.

This rulemaking procedure allows the LoC and the Copyright Office to grant limited three-year exemptions to the DMCA's blanket prohibition on bypassing technological protection measures. In that way, users could access particular classes of copyrighted works that are protected by digital protection mechanisms.

Links:
For this release:
http://www.eff.org/IP/DMCA/20021218_eff_dmca_reply_pr.html

EFF comments to Librarian of Congress and U.S. Copyright Office:
http://www.eff.org/IP/DMCA/20021218_eff_dmca_reply_comments.html

U.S. Copyright Office Notice of Rulemaking:
http://www.copyright.gov/1201/

EFF prior comments to LoC and U.S. Copyright Office in 2000:
http://www.eff.org/IP/DMCA/20000331_eff_dmca_reply_comments.html

"How to Win (DMCA) Exemptions and Influence Policy" by Seth Finkelstein:
http://www.eff.org/IP/DMCA/finkelstein_on_dmca.html

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

~ RIAA Statisticians Have Group Hallucination?
The RIAA has been complaining about a 10% drop in profits. Gee, it's pretty hard to squeeze a profit out of merchandise you never ship (even when you're gauging retailers), eh Hilary?
http://www.theregister.co.uk/content/6/28588.html

~ In with the GNU Radio
Salon looks at one of the coolest, most useful, and controversial technologies ever.
http://www.salon.com/tech/feature/2002/12/18/gnu_radio/index.html

~ ACLU Award Winners Endorse a Flat Fee for P2P
Attorneys Ken Hertz and Fred Goldring tell the content industry to stop going after consumers and focus on the real problem: their outdated, artist-impoverishing business models.
http://www.hitsdailydouble.com/news/rumormill.cgi

~ New Zealand May Dodge the DMCA Bullet
They're trying to get WIPO-compliant without the collateral damage of the DMCA.
http://www.med.govt.nz/buslt/int_prop/digital/position/

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Ren Bucholz, Activist
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