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EFFector - Volume 15, Issue 5 - FCC Official Says Industry Groups Should Decide Your Rights

                                                                         
EFFector       Vol. 15, No. 5       Feb. 14, 2002       editors@eff.org  
                                                                         
A Publication of the Electronic Frontier Foundation      ISSN 1062-9424  
                                                                         
Happy Valentine's Day!

In the 204th Issue of EFFector:

  * ALERT: FCC Official Says Industry Groups Should Decide Your Rights
  * Philips Alert Update
  * Barney's Attack Lawyers Still on the Loose; EFF Looking for other
    Victims of the Purple Dinosaur
  * Trial Date Set for Norwegian Teen; Jon Johansen Prosecuted Under
    Computer Security Law
  * Exchange Ideas with Larry Lessig at EFF Benefit Dinner
  * Visit EFF at the RSA Conference
  * 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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ALERT: FCC OFFICIAL SAYS INDUSTRY GROUPS SHOULD DECIDE YOUR RIGHTS

TELL THE FCC WHAT YOU THINK

Electronic Frontier Foundation ACTION ALERT

(Issued: February 14, 2002 / Expires: March 1, 2002)


Introduction:

EFF is troubled by a recent suggestion by an FCC Commissioner that your
rights to obtain new technology (in this instance, digital
high-definition TV technology) should be decided by an industry
negotiation. EFF believes that this attitude toward consumers' rights is
out of place, and should not go unchallenged.

Commissioner Kevin Martin, one of the five top officials of the agency
which regulates U.S. communications policy, said in a speech on Feb. 1
that

    The movie studios, broadcasters, cable industry, and consumer
    electronics industry need to reach an agreement on how digital
    content will be protected, and what rights consumers will retain to
    make personal recordings.
   
Emphasizing the high priority he placed on such an industry consensus,
the Commissioner continued:

    If further progress is not made soon, the Commission may need to
    become more directly involved.
   

What YOU Can Do Now:

We encourage you to write to FCC Commissioner Kevin Martin -- and, if you
like, to the other Commissioners -- to share your views. Feel free to use
the EFF's sample letter below as a starting point for your comments. Let
the recipient(s) of your communication know that you are concerned about
the idea that industries should decide what rights the public will have.
Please be polite and concise, but firm.


Sample Letter:

You can use this sample letter to Commissioner Martin as a starting point
for your own comments:

Commissioner Kevin J. Martin
Federal Communications Commission
445 12th St. S.W.
Washington DC 20554

Fax: (202)418-0232
E-mail: kjmweb@fcc.gov

    Dear Commissioner Martin,
   
    I am troubled by your Feb. 1, 2002 remarks before the Federal
    Communications Bar Association, during which you are quoted as having
    said "The movie studios, broadcasters, cable industry, and consumer
    electronics industry need to reach an agreement on how digital
    content will be protected, and what rights consumers will retain to
    make personal recordings."
   
    This appears to suggest that my home recording rights and my rights
    to use digital television technology should be decided by a few
    industries meeting behind closed doors. I am concerned that this will
    not adequately protect my rights as a consumer, nor the rights of
    technologists working to build innovative new products. As I
    understand it, broadcasters and technology companies wouldn't even be
    considering these anti-consumer "copyright protection" technologies
    but for threats from movie studios to withhold movies from digital
    television. While copyright law may be important, it should not give
    one industry the power to hold up new television technologies and
    erode my legitimate fair use rights.
   
    In short, I'm not prepared to trust my digital fair use rights and
    the future of television to an "industry consensus" made up of movie
    studios and the industries that they browbeat into submission. I urge
    the Commission to reject this approach. The Federal Communications
    Commission has an independent responsibility to the public to protect
    our rights in new communications media. I hope you will represent the
    public interest on this matter, rather than simply industry
    interests.
   
    Sincerely,
   
    [Your name & address]
   

Background:

Traditional analog television broadcasts are soon scheduled to be phased
out and replaced with new higher-quality digital television broadcasts.
Digital TV broadcasts have already begun in many cities, and the FCC
anticipates a complete transition in which analog broadcast television is
eliminated before the decade is out.

Major movie studios have increasingly claimed that this technical
transition is slowed because of "inadequate protection" provided to
copyrighted works when they are transmitted over the air. The studios
themselves are making the decision to withhold their popular content, but
they have advanced the idea that the new high-definition digital format
should be considered inadequate until it incorporates home-recording
restrictions endorsed by Hollywood.

This position shows movie studios' abiding suspicion of home recording --
a distrust expressed in the studios' efforts to ban the VCR, and a
hostility which continues to this day in recent lawsuits against
companies like SONICblue, which have created new personal video recording
technologies (like ReplayTV). Over two decades ago, the major motion
picture studios represented by the MPAA filed a lawsuit to try to stop
Sony from selling its new Betamax VCR; the case was ultimately decided by
the Supreme Court, which permitted the Betamax and similar devices to be
sold. The MPAA has never given up on its attempts to control home
recording devices; its latest court case against the ReplayTV claims that
it gives consumers too many abilities.

The movie industry and representatives from other industries have formed
a consortium called the Broadcast Protection Discussion Group (BPDG).
This group is contemplating ways to ban all digital video devices (TVs,
VCRs, PC-based TV tuners, and many more) which can receive digital
television signals without imposing restrictions chosen by Hollywood.
BPDG's work could result in plans to outlaw many innovative devices
already on the market, even though these devices simply receive free
over-the-air TV signals. Hollywood seems to hope for a regulatory
rubber-stamp on the consensus of the "affected industries", without
public debate and without the involvement of those whose products could
be banned.

Unfortunately, such an outcome is possible. Copyright anxieties are
running high, with the PC and the Internet seen as the newest villain.
Will consumers be trusted with the next-generation VCR? The FCC and
Congress are eager to facilitate the transition to digital TV; if
convinced that home recording posed an unacceptible risk to the studios,
they might find an "industry consensus" on technology restrictions very
appealing.

Commissioner Martin's statements were the first public indication that
the FCC is aware of and may endorse the efforts of groups like the BPDG.
But the lack of public involvement in these industry negotiations is
hardly deserving of the Commission's praise.


For more information on this issue:

How to contact the FCC:
  http://www.fcc.gov/contacts.html

Home page of FCC Commissioner Kevin J. Martin:
  http://www.fcc.gov/commissioners/martin/

Background on industry Broadcast Protection Discussion Group:
  http://www.eff.org/IP/Video/HDTV/

Copy Protection Technical Working Group, the parent organization of BPDG:
  http://www.cptwg.org/

The inside story of Betamax (how studios sought to ban the VCR):
  http://www.hrrc.org/html/inside_betamax.html


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/


Contacts:

    Seth Schoen, EFF Staff Technologist
      schoen@eff.org
      +1 415-436-9333 x107
   
    Fred von Lohmann, EFF Senior Intellectual Property Attorney
      fred@eff.org
      +1 415-436-9333 x123
   
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PHILIPS ALERT UPDATE

Philips has informed us that they are "pleased" at the showing of public
support, but that using the comment form on their website rather than the
direct e-mail addresses (which the alert also provided) results in
consumer letters being sent not directly to Philips but rather to the
third-party company they've hired to manage their website. Thus, we have
updated the contact information provided by the alert:
  http://www.eff.org/alerts/20020206_eff_philips_alert.html

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BARNEY'S ATTACK LAWYERS STILL ON THE LOOSE

EFF LOOKING FOR OTHER VICTIMS OF THE PURPLE DINOSAUR

EFFector readers will recall that in July, 2001, EFF received an
unfounded "cease and desist" letter from the attorneys for the Barney the
Dinosaur franchise, claiming that an obvious parody contained in a
newsletter hosted in an EFF Archive violated trademark and copyright law.
EFF's attorneys responded with a letter explaining the First Amendment
protection afforded to parodies and strongly encouraging Barney's
attorneys to stop using phony legal threats to try to silence critics.
The two letters were republished in EFFector Vol. 14 No. 14:
  http://www.eff.org/effector/HTML/effect14.14.html

EFF never received a response from Barney's attorneys, but we were
hopeful that the clear legal analysis of their claims would dissuade them
from threatening any more people.

Unfortunately, Barney's attorneys are apparently still at it. EFF has
learned of another threat made to another obvious parody website, using
some of the identical language but also threatening to contact the ISP of
the publisher.

EFF believes it may be time to take positive action to stop Barney from
scaring innocent citizens out of exercising their constitutional rights.
We are looking for any other people who have received cease and desist
letters from Barney's attorneys, to see if this is an ongoing effort or,
hopefully, only a couple of isolated incidents.

If you have received a letter from Barney's attorneys, please contact
Cindy Cohn, EFF's Legal Director, at cindy@eff.org immediately.

We thought Barney wasn't SUPPOSED to scare people.

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TRIAL DATE SET FOR NORWEGIAN TEEN

JON JOHANSEN PROSECUTED UNDER COMPUTER SECURITY LAW

A trial date of June 3, 2002, has been set for Norwegian teenager Jon
Johansen's criminal trial for developing DeCSS, software that can decrypt
DVDs. The case will be heard by a three-judge panel of the Oslo City
Court and is expected to last approximately six days.

Johansen was criminally charged on January 9, 2002, by Norwegian
authorities, acting on a complaint filed by entertainment industry
attorneys against the teen and his father. Indicted under Norwegian
Criminal Code Section 145.2, which outlaws breaking through security
measures of another to access data one is not entitled to access,
Johansen could face two years in prison if convicted.

The case is unique in that Johansen was not charged under copyright law
but under a statute that is primarily used to combat computer
trespassing. Johansen claims that reverse engineering a DVD that he had
legally purchased is not a violation of the law. DeCSS was created to
build a DVD player that could run on the Linux computer operating system.

Johansen is represented by Norwegian attorney Cato Schiotz with the Oslo
law firm Schjodt & Co. EFF is helping to collect donations to pay for
Johansen's defense at the following link:
  http://www.eff.org/support/jonfund.html

Please note that the money donated here goes directly to Johansen's
attorneys. If you would like to donate to EFF, you can do so at:
  http://www.eff.org/support/

For more info on the Johansen case, see:
  http://www.eff.org/IP/DeCSS_prosecutions/Johansen_DeCSS_case/

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EXCHANGE IDEAS WITH LARRY LESSIG AT EFF BENEFIT DINNER

As the first benefit dinner was a great success, we have decided repeat
the experience to accommodate those who couldn't make it the first time
around.

You are invited to join Stanford University Law Professor and Electronic
Frontier Foundation (EFF) Board Member Larry Lessig for an intimate
conversation regarding his new book over dinner and drinks. This exchange
of ideas will take place on Tuesday, March 5th, at 7:30 p.m. in San
Francisco, and will benefit EFF's work to protect rights in the digital
age.

In his book, "The Future of Ideas," Larry warns of the dangers of
corporate power strangling public interest online. He argues that these
powerful forces could usher in a new "Dark Age" in which ideas are more
strictly monitored and filtered than at any time in our history.

Larry will engage a dozen interested people at the upscale new Japanese
restaurant Ozumo for a meal in the Sunken Kotatsu room.

Seated on cushions around a low wooden table, you will have the chance to
discuss Larry's book and ideas with him in an intimate personal setting
while enjoying excellent food. You will also be contributing to an
important cause, as the money raised from this unusual evening will go to
furthering the work of the Electronic Frontier Foundation.

The evening includes the opportunity to talk with Larry about his
thoughts for the future and how we can affect it, your dinner and drinks,
and a signed copy of "The Future of Ideas."

The cost is $500. As there are only 12 available seats, space will fill
up quickly.

Please contact Katina Bishop for more information and to RSVP at
415-436-9333 x101 or katina@eff.org.

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EFF AT THE RSA CONFERENCE

Come see the EFF at the RSA Conference 2002, February 19-21 in San Jose.
The EFF booth will be there, along with new goodies for the cryptography
community. Stop by and say hi!

Where:
Booth #1447
The San Jose McEnery Convention Center
333 West San Carlos Street
San Jose, California 95113 USA

For more information:
  http://www.rsaconference.com/

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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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