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EFFector - Volume 15, Issue 8 - Congress Calls For Public Participation on Digital Music Issues


EFFector - Volume 15, Issue 8 - Congress Calls For Public Participation on Digital Music Issues

 EFFector       Vol. 15, No. 8,       March 22, 2002 
 A Publication of the Electronic Frontier Foundation     ISSN 1062-9424  
In the 207th Issue of EFFector:

  * ALERT: Congress Calls For Public Participation on Digital 
    Music Issues
  * EFF Position on Joint AOL-Time Warner/Intel Pro-DRM Statement: 
    A Step in the Wrong Direction
  * Exchange Ideas with EFF Founders Mitch Kapor and John Perry Barlow
  * Director Sues Organization that Oversees Internet - ICANN Broke Law
  * Media Conglomerate Threatens Suit Against Gamer Community
  * CHIPA Alert
  * EFF Thanks RSA Security

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!




(Issued: Friday, March 22, 2002 / Deadline: Monday, April 8, 2002)


Imagine a world where all digital media technology is either mandatory or
forbidden -- Senator Fritz Hollings and a cabal of Hollywood
entertainment interests are cooking up a set of laws aimed at conjuring
this apocalyptic world into existence.

Today, Senator Hollings introduced the alarming Consumer Broadband and
Digital Television Promotion Act (CBDTPA), which will give Hollywood
plutocrats the power to stall new digital media technologies for a year,
negotiating a phony "consensus" at lawyer-point with technologists. This
"consensus" will receive the force of law, prescribing which user-hostile
features are mandatory and which innovative features are forbidden.
CBDTPA is derived from the draft SSSCA (Security Systems & Standards
Certification Act), the subject of our last alert.

Both the House and the Senate have called for comments on the future of
digital music, an issue that is deeply entwined with technology mandates.

What YOU Can Do Now:

This is YOUR chance to voice your opposition to laws that make all
digital media technology mandatory or forbidden.

  * Send the EFF letter below to both the House and the Senate. Feel free
    to use this letter verbatim, or modify it as you wish. Please be
    polite and concise, but firm.
    The Senate Judiciary Committee's Chairman Patrick Leahy and Ranking
    Republican Member Orrin Hatch are accepting comments via a form at:
    The House Judiciary Committee Subcommittee on Courts, the Internet &
    Intellectual Property is accepting comments by email and fax,
    addressed to the Chair:
      Hon. Howard Coble
      fax: +1 202-225-3673
  * For information on how to contact your legislators and other
    government officials, see EFF's "Contacting Congress and Other
    Policymakers" guide at:
  * Join EFF! For membership information see:

Sample Letter:

    Dear Senator Leahy, Senator Hatch, and Representative Coble:
    I am writing to you today to express my concern at the growing trend
    to impose governmental technology mandates at the behest of the
    entertainment industry.
    The introduction of the CBDTPA by Senator Hollings illustrates the
    inevitable conclusion of such mandates: a world where all digital
    media technology is either forbidden or compulsory. CBDTPA grants
    veto power over new technologies to the special interest groups who
    have opposed innovation since the Betamax fight.
    Technology mandates are anti-consumer, treating us all as potential
    criminals and punishing us in advance for infringements we haven't
    committed. They are inevitably used to strengthen copy-prevention
    ("digital rights management") technologies that give disproportionate
    power to vendors, stripping us of our traditional fair-use rights,
    restricting our power to back up, sell, loan, transfer, and
    format-shift the products we've purchased.
    Technology mandates are anti-innovative, stalling all new designs in
    lengthy one-sided "negotiations" where the entertainment industry can
    strong-arm technologists into adopting anti-customer "features."
    Technology mandates hurt American companies by imposing expensive
    design requirements and lengthy design reviews. Foreign competitors
    are exempt from these restrictions, a situation that harms exports
    and will create a grey market for uncertified technologies from
    I urge your committee to reject anti-consumer, anti-innovative,
    anti-competitive technology mandates, especially the CBDTPA and the
    "mini-CBDTPA" that is in the offing to give force of law to the
    "consensus" developed by the Broadcast Protection Discussion Group
    for digital TV standards.
    I further urge you to repeal the anti-circumvention provisions of the
    Digital Millennium Copyright Act (DMCA). Never used to prosecute
    anyone accused of infringing copyright, in practice these provisions
    have chilled the speech of computer scientists, stifled journalistic
    criticism, and prosecuted computer programmers and the companies for
    which they work.
    Please, do the right thing for consumers, innovation and American
    [Your name;
    include full address for maximum effectiveness]


Please remember to be polite but firm. Ranting, swearing, or lack of
clear focus and resolve will not make a good impression. Try to make it
brief and clear, without getting into nitpicky details. Re-casting the
letter in your own words will be more effective than copy-pasting our

Activists Around the World

This alert is primarily for U.S. residents. However, this issue is of
importance globally, so keep an eye out in your own jurisdiction for
related matters you can act on.

CAFE Campaign:

This drive to contact your legislators about the CBDTPA and the threats
it poses to fair use and innovation is part of a larger campaign to
highlight intellectual property industry assaults against the public's
fair use rights, and what you can do about it.

Check the EFF Campaign for Audivisual Free Expression (CAFE) website
regularly for additional alerts and news:


The CBDTPA, Hollywood and Holling's bid to strangle the American
technology industry, is just the latest salvo. Over the past year, the
Copy Protection Technologies Working Group has convened the Broadcast
Protection Discussion Group, which has been laying down the "consensus"
on new digital television devices for a captive audience of
representatives from electronics, software and computer companies.

These profoundly undemocratic proceedings sacrifice consumer rights, free
speech and innovation on the altar of Hollywood's hysterical

The CBDTPA promises a world where useful features would be eliminated if
the possibility for their misuse existed, such as:

  * limits on "format-shifting," for example, the ability to create
    mix-CDs of music you've paid for;
  * controls built into hard-drives that would allow files to be labelled
    as "unmovable," so they could not be backed up, or moved to another
    machine, nor could the drive be effectively optimized;
  * restrictions on the manufacture and distribution of devices and
    programs that can play unrestricted formats, such as MP3 audio and
    DivX video files.

Senator Hollings, called "The Senator from Disney" for his close ties
with Hollywood money, continues to push for technology mandates,
federally imposed specifications for technologies that outlaw legitimate
functionality in order to control illegitimate uses. It's the
technological equivalent of requiring that crowbars be made of
foam-rubber on the grounds that metal ones may be used in the commission
of burglaries.

This is not the way that copyright law works. The Betamax decision,
handed down by the Supreme Court in 1984, established the principle of
"substantial non-infringing uses." The Betamax principle allows
technologists to create tools that can be used for good, *even if they
can be used in other ways.* It is an affirmation of the social good of
innovation and of "fair use." Every technology company in the world
depends on this affirmation -- it is the foundation of creative,
innovative technology.

Incremental CBDTPA

After 2006, the FCC will require all over-the-air broadcasts to be
digitally encoded. Under the pretext of preventing the "Napsterization"
of their video signals, the MPAA has convened the Broadcast Protection
Discussion Group (BPDG) of the Copy-Protection Technical Working Group
(CPTWG). The BPDG's "standards," developed in concert with a group of
arm-twisted representatives from major technology vendors, will specify
flags controlling the public's ability to store, copy, and share digital
TV signals.

When Senator Hollings held his hearings on copyright reform in early
March 2002, he heard testimony from studio-heads and technologists that
presented the BPDG's process as a model for future "cooperative" ventures
between Hollywood and technologists. The BPDG's representatives explained
that their measures would only safeguard copyright if their "standards"
were mandated by government.

Any hint that this mandate would limit the freedom to innovate was
downplayed -- if the standard is voluntarily arrived at by all the
affected parties, where's the loss of freedom?

Yet the standard must be mandated if it is going to be effective.
Consumers will not "voluntarily" choose to purchase restrictive
technology if they have other choices, and technology companies would be
foolish to invest in restrictive technology that consumers will not buy.
The only way the investment makes sense is if there is no competing
"open" technology choice for the consumers. And the only way to kill off
competition from products consumer prefer is to make those products

A mandated CPTWG standard is a clear abridgement of freedom. This
"standard" has in reality been arrived at by a handful of players who
exclude the press and have no means for receiving public comment. A
mandated standard eliminates the ability for competing techniques to be
tested in the marketplace. The public good is best served when vendors
voluntarily adopt standards on the basis of consumer demand.

The scope of a CPTWG mandate was likewise downplayed. Receiving, storing,
copying and transmitting DTV signals isn't merely the domain of set-top
boxes. A CPTWG mandate would necessarily extend into the PC, requiring
substantial integration with device drivers, operating systems, firmware
and application APIs.


For more information about CBDTPA (and its older "parent", SSSCA), see:

For more information on the future of digital television, see:

See also EFF's "Frequently Asked Questions (and Answers) About Fair Use":

Declan McCullagh Wired News article on CBDTPA, "What Hollings' Bill
Would Do":,1283,51275,00.html
Full text of CBDTPA bill:

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 websites in the world:


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

Cory Doctorow, EFF Outreach Coordinator
  +1 415 436 9333 x106




Recently, Intel Corporation has issued two very different statements
about the dangers to innovation and fair use posed by copyright owners'
attempts to get Congress to put the power of federal law behind digital
rights management schemes.

In his testimony before the Senate Commerce Committee, Intel Executive
Vice President Leslie Vadasz courageously spoke out against the Hollywood
moguls who are asking Congress make copy controls mandatory in all new
technologies. Vadasz expressed skepticism of the demands of copyright
industries, which he said "historically feared technology -- from the
advent of sound recording, to the development of the VCR, the DVD, the
PC, and other digital devices". He explained that innovation must not be
sacrificed in an impossible quest to lock down every tool that might be
used for infringement.

By contrast, a March 19 joint statement by Intel Corporation and AOL Time
Warner suggests a disappointing change of heart by Intel. The "AOL Time
Warner -- Intel Joint Statement of Principles" envisions a world in which
corporate negotiations decide consumers' rights, and government outlaws
devices falling outside a "consensus" imposed by Hollywood at
lawyer-point. According to the joint statement, "The goal of these
efforts is to create an overall architecture for protecting digital
content throughout its distribution life so that it does not 'leak' out
in an unprotected manner" -- with the result that copyright holders shape
the digital architecture of the future, retaining the power to control
your use of the movies, music and books you buy.

The earlier Vadasz statement praised innovation and suggested that copy
control efforts can, and have, put innovation at risk. Vadasz cited
historical examples like the movie studios' protracted efforts to outlaw
the VCR. The joint AOL-Intel statement scarcely mentions this risk,
endorsing a collaboration between copyright owners and technology
companies against the public.

The "voluntary inter-industry negotiations" to reach agreements on copy
controls are not a good model for legislation, nor have their prior
efforts benefited consumers. These negotiations occur in relative secrecy
-- generally excluding the press -- and rarely include consumers or
consumer advocates. Typically, these groups discount the kind of
innovation praised by Vadasz.

Today, the Broadcast Protection Discussion Group (BPDG), endorsed by the
AOL-Intel statement, is meeting in Los Angeles to try to decide what sort
of copy controls will be built into every device capable of receiving
digital television (DTV). Consistent with the AOL-Intel statement's
expressed ambition of creating an "overall architecture [...] so that
[content] does not 'leak' out," BPDG aims to prevent any device from
recording a DTV broadcast in an open format without the copyright
holder's explicit permission. Existing products which don't impose these
restrictions -- such as some TV cards for PCs -- would be outlawed.

This federal ban on "noncompliant" televisions and PC peripherals is
endorsed in the AOL-Intel statement as a "narrowly focused government
regulation," "necessary" and "appropriate for proper enforcement of
[industry] consensus." We call this process bankrupt, its outcome a
threat to innovation, and its legacy a restriction of the public's fair
use rights.

We call on Intel to hold fast to Vadasz's vision of the technological
future, one which holds no place for federal mandates on innovative
digital technologies.


Testimony of Leslie Vadasz:

Intel and AOL Time Warner's "Statement of Principles":




You are invited to join an intimate group of fifteen for a lively evening
of fine food, history and conversation with the original EFF co-founders,
Mitch Kapor and John Perry Barlow. This exchange of ideas will take place
on Tuesday, April 16th at 7:30 p.m. PT, and will benefit EFF's work to
protect rights in the digital age.

Mitch and Barlow founded EFF in July of 1990 to protect civil liberties
where law and technology collide. (See Barlow's compelling account from
that time at
electronic_frontier.eff.) In its 11-1/2 year history, EFF has been on the
forefront of high tech issues, fighting to ensure that reading email
requires a warrant, software is recognized as speech, restrictions on
encryption export are illegal, and fair use survives in the digital age.

The dinner will take place at San Francisco's classic Waterfront
restaurant in the North Room. While looking out over the San Francisco
Bay, you will have the chance to take part in an in-depth conversation
about EFF's fascinating role in the universe. You will also be
contributing to an important cause, as the money raised from this unusual
evening will go to furthering our work.

The evening includes the full cost of your dinner and drinks, the
opportunity to talk with Mitch and Barlow, a vintage EFF t-shirt, and
other surprises. The cost is $500. As there are only 15 available seats,
space will fill up quickly.

Please contact Katina Bishop for more information and to RSVP at or +1 415-436-9333 x101.




Electronic Frontier Foundation Media Release

Los Angeles - The Electronic Frontier Foundation today helped a member of
the ICANN Board of Directors file a lawsuit forcing ICANN management to
grant him some reasonable access to corporate records.

Karl Auerbach, the North American Elected Director of the Internet
Corporation for Assigned Names and Numbers (ICANN) began asking for
corporate records in December 2000, shortly after he was elected to the
Board. ICANN management dragged its feet for nine months, then issued a
new "policy" -- never brought before the Board for discussion or vote --
requiring Auerbach to sign a non-disclosure agreement that placed
Auerbach's ability to discuss the records at the discretion of ICANN

"California nonprofit law requires a corporation to provide its directors
the information required to make informed and intelligent decisions,"
said Auerbach. "ICANN management has denied me the tools I need to
exercise independent judgment and fulfill my duties as a director."

"Directors, not management, have the ultimate responsibility and
authority to oversee the operations of a corporation like ICANN,"
explained Auerbach's attorney James Tyre. "ICANN staff's arbitrary and
changing policy regarding access to corporate records is not only
disturbing, but unlawful in the state of California."

"The Electronic Frontier Foundation finds ICANN management's apparent
abuse of power disturbing," added EFF Legal Director Cindy Cohn. "The
Internet community relies on well-informed ICANN directors like Mr.
Auerbach to administer the corporation appropriately."

Because ICANN is a non-profit California corporation, the organization
must comply with a California statute giving any director of the
corporation an "absolute right" to inspect and copy corporate records.

In addition, ICANN's bylaws provide that: "Every Director shall have the
right at any reasonable time to inspect and copy all books, records and
documents of every kind, and to inspect the physical properties of the
Corporation. The Corporation shall establish reasonable procedures to
protect against the inappropriate disclosure of confidential

The case, entitled Auerbach v. ICANN, case no. BS074771, was filed in
California Superior Court, Los Angeles County.


For documents related to the Auerbach v ICANN case:

ICANN Articles of Incorporation:

ICANN Bylaws:




Electronic Frontier Foundation Media Release

San Francisco - The Electronic Frontier Foundation (EFF) today chided
media conglomerate Vivendi Universal Publishing for threatening gamers
who created their own multiplayer gaming community.

On behalf of its Blizzard Entertainment division, Vivendi sent a "cease
and desist" letter to Internet Gateway Inc., the Internet Service
Provider (ISP) host of a free software project called "bnetd" that
emulates Blizzard's gaming service. Blizzard game purchasers
can meet online or on a local area network to chat, find competition, and
start multiplayer games using the bnetd software.

Vivendi demanded that the ISP disable the website hosting the bnetd
software, claiming it violates copyright law and the anticircumvention
provisions of the Digital Millennium Copyright Act (DMCA).

EFF responded to Vivendi's letter, explaining that its claims were
unfounded and stating that the bnetd software, which was removed upon
receipt of the demand, would be reposted in 10 days.

"A group of volunteers decided to write a server for Blizzard games
because the Blizzard servers were undependable and we wanted increased
functionality," explained Tim Jung, owner of Internet Gateway, based in
St. Louis. "Vivendi claims that the server violates the law because it
does not implement checking the game's CD-KEY, designed to prevent the
use of illegal copies of their games. We asked them to give us the
information we needed to do the checking, but they refused."

"This is yet another example of misuse of the DMCA and copyright law,"
noted EFF Legal Director Cindy Cohn. "Bnetd developers engaged in legal
reverse engineering without circumvention or any illegal activity."

The DMCA has no requirement that one must include every feature of a
program or system like CD-KEYS; in fact, the DMCA's "no mandate"
provision states that developers of interoperable programs do not have to
respond to CD-KEYS and similar technology.

"Corporations have wielded the DMCA to censor magazines, academic
researchers, and competitors," said EFF Senior Intellectual Property
Attorney Fred von Lohmann. "Now Vivendi is using the DMCA to threaten
customers who simply want to improve the gaming environment for a product
they've purchased legitimately."


Cease and desist letter sent by Vivendi Universal:

EFF reply to cease and desist letter:

Bnetd website:

Blizzard's explanation:

Media coverage and websites related to 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 websites in the world:

About Internet Gateway:

Founded in 1995, Missouri-based Internet Gateway provides Internet and
networking solutions, as well as consulting services, to businesses and
end users across the country. Internet Gateway provides Internet access,
consulting and support to other ISPs as well as to its own customers. In
addition to nationwide consulting and support, Internet Gateway currently
provides Internet access to five cities including the St. Louis metro
area, Cape Girardeau, Sikeston, Perryville and the St. Charles/St. Peters
metro area. The company website can be found at:

About bnetd Project:

The bnetd project is a collaboration focusing on development of a server
that attempts to emulate Blizzard's gaming server. The bnetd
project is run by volunteers and is neither supported by nor affiliated
with Blizzard Entertainment. The project website is at:




Electronic Frontier Foundation Media Release

For Immediate Release: Friday, March 22, 2002

Philadelphia - In a nine-day trial set to begin on Monday, the American
Civil Liberties Union will argue that a federal law that forces libraries
to censor constitutionally protected speech online is unconstitutional
and should be permanently struck down.

At issue is the Children's Internet Protection Act, a federal law passed
in December 2000 that ties crucial library funding to the mandated use of
blocking programs on Internet terminals used by both adults and minors in
public libraries.

The ACLU will present testimony from librarians, library patrons, website
authors and experts on web blocking programs. On Monday, Ginnie Cooper,
Director of Multnomah County Public Library in Oregon will testify. On
Tuesday, the court will hear from 16-year-old Emma Rood, a patron of the
Oregon library, among others. Note: Witnesses will be available for
interview only after they have completed their testimony.

The ACLU has created a comprehensive web page for the case that includes
a list of the daily trial witnesses and their bios, legal papers, expert
reports, and examples of wrongly blocked websites, online at http://

Electronic Frontier Foundation (EFF) Senior Attorney Lee Tien is
co-counsel in the case.

The case is Multnomah County Library vs. United States of America, No.
01-CV-1322. Multnomah County and others are represented by the ACLU. The
American Library Association has filed a similar challenge on behalf of
its members; the two cases have been consolidated by the court and will
be heard together by a three-judge panel.

Who: ACLU attorneys Ann Beeson, Chris Hansen, Stefan Presser and Kevin
Bankston, on behalf of libraries, library patrons and website authors.

What: Challenge to Children's Internet Protection Act

When: Monday, March 25 - Thursday, April 4, 2002; trial begins at 9:15
a.m. ET on Monday.

Where: U.S. Courthouse, 601 Market Street (at 6th Street) Philadelphia,
PA, in Judge Bartle's courtroom, Room 16-A


ACLU site on CIPA trial:

Text of CIPA, passed as part of massive omnibus appropriations bill
H.R. 4577:

EFF analysis of CIPA:

Additional information on CIPA:

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 websites in the world:

About ACLU:

The American Civil Liberties Union is the nation's foremost advocate of
individual rights -- litigating, legislating, and educating the public on
a broad array of issues affecting individual freedom in the United
States. The organization has hundreds of chapters with a nationwide
website at:


Emily Whitfield, Media Relations Director, ACLU
  +1 212-549-2566

Stefan Presser, Legal Director, ACLU of Pennsylvania
  +1 215-592-1513 x116

Lee Tien, EFF Senior First Amendment Attorney
  +1 415-436-9333 x102

Will Doherty, EFF Online Activist / Media Relations
  +1 415-436-9333 x111



The EFF would like to thank RSA Security, Inc. for their recent donation
of boothspace at the RSA Conference 2002. The conference took place in
San Jose, CA, from February 19-21. Without the assistance of RSA
Security, owners and managers of the RSA Conference, the EFF would not
have been able to further spread the word among the cryptography and
security communities. Thanks RSA!



EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)

Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster

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