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EFFector - Volume 15, Issue 9 - Defend your Rights to Digital Music! Congress Calls for Public Comments

EFFector       Vol. 15, No. 9a,       March 29/31, 2002     editors@eff.org
                                                                           
  A Publication of the Electronic Frontier Foundation     ISSN 1062-9424   
                                                                           
In the 208-209th Issue of EFFector:

  * ALERT: Previous Two Alerts Updated with New Contact Info
  * ALERT: Defend your Rights to Digital Music! Congress Calls for Public
    Comments
  * California Supreme Court to Review E-mail Pamphleteer Case
  * Constitutional Challenge in Russian eBook Formatter Case
  * Mark your Calendars for EFF's 11th Annual International Pioneer Awards
  * Exchange Ideas with EFF Founders Mitch Kapor and John Perry Barlow

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: PREVIOUS TWO ALERTS UPDATED WITH NEW CONTACT INFO

PLEASE CONTINUE TO TRY TO REACH CONGRESS ON DIGITAL MEDIA ISSUES

Electronic Frontier Foundation ACTION ALERT

(Issued: Mar. 31, 2002 / Deadline: April 8, 2002)

[This update has been merged into the archived copy of EFFector 15.09;
thus, references to the previous two issues means 15.09 and 15.08, not
15.08 and 15.07.]

The previous two issues of EFFector have borne action alerts on digital
music & media, and copyright. The contact information provided in both has
been failing.

It is especially urgent that you contact these legislators as soon as
possible - several days of activism have been effectively lost already
because of communications problems on Capitol Hill. Your comments are
doubly needed, to make up for what may seem to be citizen/consumer silence
on the issues!

 1. The Senate Judiciary Committee's Web-based comment form has stopped
    working. Therefore, please fax your letters to the committee, at:
    +1 202-224-9516
   
 2. The House Judiciary Courts, Internet & Intellectual Property
    Subcommittee fax is not responding. The full committee majority's fax
    machine (+1 202-225-7682) is also refusing to pick up as of our most
    recent test.
   
    The only options are to e-mail all of the subcommittee members with
    e-mail addresses:
    
    howard.coble@mail.house.gov, cannon.ut03@mail.house.gov, john.hostettler@mail.house.gov, martin.meehan@mail.house.gov, john.conyers@mail.house.gov, howard.berman@mail.house.gov, zoe.lofgren@mail.house.gov, william.delahunt@mail.house.gov, tammy.baldwin@mail.house.gov, weiner@mail.house.gov, talk2bob@mail.house.gov, lindsey.graham@mail.house.gov, ninthnet@mail.house.gov

    then fax to those with no e-mail address:
    
    Hyde: +1 202-225-1166
    Waters: +1 202-225-7854
    Wexler: +1 202-225-5974
    Bachus: +1 202-225-2082
    Gallegly: +1 202-225-1100
    Keller: +1 202-225-0999
    Jenkins: +1 202-225-5714
   
    (If you only have time to send one fax, send it to Hyde, one of the
    more powerful members of the full committee.)
   
    Or, for those with little time to devote to this alert, fax to the
    committee minority's fax number and hope that the minority and majority
    communicate well enough that our activism is made known to both sides,
    which is dubious, but better than nothing:
    +1 202-225-4423
   
   
Full text of the Senate alert, including sample letter (updated):
  http://www.eff.org/Alerts/20020322_eff_cbdtpa_alert.html

Full text of the House alert, including sample letter (updated):
  http://www.eff.org/Alerts/20020329_eff_drm_alert.html
[the original is immediately below]

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DEFEND YOUR RIGHT TO DIGITAL MUSIC!

HOUSE CALLS FOR PUBLIC PARTICIPATION ON FAIR USE & DIGITAL MEDIA ISSUES

Electronic Frontier Foundation ACTION ALERT

(Issued: Mar. 29, 2002 / Deadline: April 8, 2002)

NOTE: The alert in the previous issue has been changed. It directed
EFFector readers to send comments opposing technology mandates to both the
House and the Senate. A House staffer has told us that the House request
for comments is limited to digital music issues, not DRM and mandates more
generally. A new alert about the House comments is below, while the
original alert, modified to direct comments to the Senate only, is
available at:
  http://www.eff.org/Alerts/20020322_eff_cbdtpa_alert.html


Introduction

The U.S. House Judiciary Subcommittee on Courts, the Internet, and
Intellectual Property has requested public comment on digital music &
copyright issues. Comments must be received by April 8, 2002, at the
address listed below.

Let YOUR voice be heard on the "management" of your rights to digital
music. It is crucial that Congress hear from you on these important issues
in order to balance the money and pressure from Hollywood at a time when
the law is still forming. Tell Congress that it's time to put the brakes on
the copyright industry's whittling away of the public's rights under
copyright law and the First Amendment. This may be the best chance
available of convincing Congress to pull back from upholding copyright
holders' interests above all others in digital music and digital media in
general.

This request for comments is part of the Subcommittee's ongoing process of
reviewing proposals and amendments concerning copyright in the digital
environment.

Congressional staffers tell us that your letters will have the most impact
if written in your own words, addressing concerns raised by digital music
and copyright, such as those outlined in our sample letter below (and in
more detail in the Background section at the end of this alert.)


What YOU Can Do Now:

  * Send your personal, not form, letter to the House Judiciary
    Intellectual Property Subcommittee urging repeal of the DMCA's
    anticircumvention provisions, and recognition of fair use rights as
    real rights.
  * Contact your own legislators about this issue. For information on how
    to contact your legislators and other government officials, see EFF's
    "Contacting Congress and Other Policymakers" guide at:
      http://www.eff.org/congress.html
  * Join EFF! For membership information see:
      http://www.eff.org/support/


Sample Letter:

IMPORTANT: Please do NOT simply forward our text to the subcommittee! We
have been told by staffers working on this issue that form letters will not
count for much if anything. The sample below is just a model to help give
you ideas. Your letter can be long and detailed, it can be about your
high-tech business's concerns, your issues as a consumer, your concerns as
a programmer, musician, reviewer, vendor, etc., or it could be very short
and simply advocate repeal of DMCA and clearer upholding of fair use rights
because of the harm to consumers, researchers, publishers and software
authors. So long as it's in your own words and you send it before the
deadline.

Your letter should be sent to:

  Hon. Howard Coble, Chair
  Subcommittee on Courts, the Internet & Intellectual Property,
  House Judiciary Comittee
  howard.coble@mail.house.gov
  fax: +1 202-225-3673
  
The submission deadline is April 8, 2002, 5pm (EST)


    Dear Chairman Coble and Members of the Subcommittee:
   
    I write to you today about the troubled future of digital music. The
    entertainment industry is attempting to lock down all access to and use
    of music, with questionably constitutional laws like the Digital
    Millennium Copyright Act (DMCA). These new powers would allow Hollywood
    to completely remove a whole spectrum of legal and legitimate fair uses
    of digital music and other digital media, with criminal prosecution
    hanging over the heads of anyone who attempts to bypass their "digital
    rights management" systems for perfectly legal purposes. We don't need
    Columbia Records, Disney, or Time-Warner managing our digital rights.
   
    I urge you to seek and support immediate repeal of the Digital
    Millennium Copyright Act (DMCA) anticircumvention provisions. These
    controversial provisions outlaw the act of bypassing access controls
    that "protect" digital works and prevent fair, legal uses (including
    time and format shifting, making of backup copies, lending, resale and
    excerpting, among others). The DMCA outlaws making or providing any
    technology, including software and simple information, that could help
    another person to bypass access or use restrictions, even in the
    absence of any criminal intent or evidence of copyright infringement.
    These provisions have already been used to threaten legimitimate,
    law-abiding scientists, game network programmers, and makers of eBook
    access software. The DMCA is anticompetitive and harmful to innovation,
    shielding in an coat of legal armor the entrenched entertainment
    industry's preferred but obsolete business model from any more-inventive
    competition.
   
    The DMCA has also undermined the first sale doctrine, which has always
    allowed consumers to loan, resell, or give away their records, tapes
    and CDs. The first sale doctrine also protects public libraries from
    copyright liability for loaning music to the public. Copyright owners,
    using Internet "music rental" systems such as MusicNet and pressplay,
    are now "tethering" the music we have purchased to a particular
    computer, fundamentally undermining the first sale doctrine because the
    DMCA makes a criminalizes even fair use circumvention devices or
    software. I urge you to take steps to correct this problem.
   
    In addition to fixing problems with the DMCA, I encourage you to
    support legislation such as the Music Online Competition Act (MOCA),
    H.R. 2724, which would level the competitive playing field for Internet
    webcasters. In addition, I urge you ensure that the ongoing copyright
    arbitration royalty panel (CARP) that is setting webcasting royalties
    leave room for small, noncommercial webcasters. The growing problem of
    "copy-protected" CDs should also be addressed. If I want to make a fair
    use copy of a CD I have purchased, I should be able to do so. And
    technology companies should be able to build the tools that would
    enable me to "fix" these malfunctional discs. The DMCA currently makes
    this impossible, and new legislation is about to make the situation
    worse. Please oppose such bills as Senator Hollings' S. 2048, that
    would mandate copy-protection in all future digital media devices. As a
    law-abiding citizen, I am outraged at the notion that the federal
    government would require my MP3 player or CD-ROM drive to punish me in
    advance for infringements committed by others.
   
    Finally, please consider adopting legislation that will affirmatively
    guarantee my fair use rights in the digital music world. Copyright
    owners, with a mix of legislation, litigation, and unilateral "digital
    rights management" technologies, are apparently intent on rolling back
    my fair use rights and treating me by default as if I were a criminal.
    This is destroying the balance between the rights of the public and
    those of copyright holders. Please support a "digital consumer bill of
    rights" that will prohibit copyright owners from taking away more of my
    traditional fair use rights.
   
    I am a user of digital music today and will be in the future. I'd like
    to retain the right to make backup copies, to format-shift from CDs to
    MP3s, to give a CD to friend or borrow one from a library, and all the
    other fair, legal uses that the industry's plan would take away from
    me. I am a legitimate user, not a pirate, and I should not be locked
    out of full access to and fair use of the music I have legal access to.
    I ask you in the strongest terms to help stop the intellectual property
    industry's "rights land-grab" by ensuring fair use is upheld, and by
    reining in the runaway DMCA.
   
    Sincerely,
   
    [Your name;
    include full address for maximum effectiveness]
   
Tips:

Again, please don't just forward our sample letter - it won't have any
impact.

Our letter is considerably longer than yours should be (because we are
trying to give you more ideas for your own letter). You can also send a
similar letter to your own legislators, and be sure to mention that you are
their constituent when you do so. When writing to the subcommittee please
remember that (although the technology and legal issues are the same
regardless of what digital medium we are talking about), they are only
interested in comments focused on the digital music, not HDTV, DVDs, SSSCA/
CBDTPA, eBooks, etc. While they can be mentioned, the focus should remain
squarely on music. When writing to your own legislators you should discuss
the issue more broadly.

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 (1
page or less written, or a few sentences spoken) and clear, without getting
into nitpicky details. Re-casting the letter in your own words will be more
effective than copy-pasting our sample.


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. Many countries are considering legislation
like the US DMCA and SSSCA/CBDTPA.


Background:

1. Repeal the DMCA's Circumvention Ban

Urge Congress to repeal the anti-circumvention provisions of the Digital
Millennium Copyright Act (DMCA). These legally-enforced technological
restrictions are used by copyright holders to control use of creative
expression. These controversial provisions outlaw the act of bypassing
access controls and making or providing any technology, including software
and information that could help another to bypass access or use
restrictions.

Because the DMCA gives force of law to whatever use restrictions the
copyright holders dream up (no matter who trivial they are to work around)
the public's side of the copyright bargain is eliminated, or at least
greatly reduced. The public's rights, such as fair use, allowing customers
to copy works for lawful purposes even when the copyright holder does not
wish to permit it, are disabled by technology that it is illegal to bypass.

We all enjoy the right under copyright law's First Sale Doctrine to sell or
give our old and unwanted CDs and tapes to others for further use and
enjoyment. But major labels restrict First Sale Doctrine privileges by
requiring music to be tied to particular devices, and then seal the
requirement through the DMCA's outlawing of any means of bypassing those
restrictions. The Copyright Office Section 104 Report issued on August 29,
2001 ignores how the DMCA is being used to restrict First Sale privileges
and the public's ability to make back-ups. The loss of public domain, fair
use, and first sale rights under recent developments in copyright law
presents a powerful threat to freedom of expression. Congress must address
the loss of important consumer rights under copyright in the use of digital
technology.

The Copyright Office and courts have been looking to Congress to clarify
and amend many of the controversial provisions. But Congress should address
the chilling effect on freedom of expression presented by the DMCA's
circumvention of the public's rights under copyright. Advise the House
Subcommittee to repeal the DMCA's anti-circumvention provisions in order to
protect freedom of expression and fair use in a digital environment, and
thus restore balance to copyright law.

2. Fair Use as Affirmative Right

Inform Congress that it's time to formally recognize copyright law's fair
use privilege as an affirmative right. Traditionally fair use has been
considered a defense to claims of infringement when a person has a lawful
right to use a copyrighted work in ways disapproved of the author.
Copyright law also permits the making of back-up copies and personal use
copies of works by individuals regardless of whether the author permits
such use. Since copyright holders wrap their works up in "digital straight
jackets" that control all uses, including disabling fair use rights, and
DMCA makes it illegal to bypass those digital controls, fair use must be
recognized as an affirmative right in order to restore balance in copyright
law. Tell Congress that you want your fair use rights and you vote.


CAFE Campaign:

This drive to contact your legislators about the future of digital music 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:
  http://www.eff.org/cafe/


Links:

For more information about access-control and copy-prevention systems see:
  http://www.eff.org/IP/DRM/

For essays and articles about fair use and digital media, see:
  http://www.eff.org/CAFE/resources.html

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


Contact:

Robin Gross, EFF Intellectual Property Attorney
  robin@eff.org
  +1 415-436-9333 x112

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CALIFORNIA SUPREME COURT TO REVIEW E-MAIL PAMPHLETEER CASE

LOWER COURT DECISION THREATENS INTERNET COMMERCE AND SPEECH

Electronic Frontier Foundation Media Release

San Francisco - The California Supreme Court today agreed to review a lower
court ruling that companies can sue those who send unwanted e-mail to their
employees. The Electronic Frontier Foundation (EFF) filed an amicus letter
in the Intel v. Hamidi case, arguing that the lower court distorted the
"trespass to chattels" doctrine when applying it to the Internet.

The case arises from six system-wide e-mail messages sent by ex-employee Ken
Hamidi during a two-year period to worldwide employees of Intel criticizing
the company's treatment of its employees.

The messages admittedly did no harm to Intel's computer systems and caused
no delays in its computer services. Nonetheless, in a 34 page opinion, the
Third Appellate District Court of California ruled that sending unwanted
e-mails was an illegal "trespass."

"When Hamidi sent those e-mails, he didn't trespass on Intel's property,"
said EFF Senior Staff Attorney Lee Tien. "We are pleased the Supreme Court
has agreed to review this case."

Judge Kolkey, one of the judges in the Third District Court of Appeal,
dissented from the majority and, agreeing with the ACLU and EFF, wrote:

"Under Intel's theory, even lovers' quarrels could turn into trespass suits
by reason of the receipt of unsolicited letters or calls from the jilted
lover. Imagine what happens after the angry lover tells her fiance not to
call again and violently hangs up the phone. Fifteen minutes later the phone
rings. Her fiance wishing to make up? No, trespass to chattel."

Opening briefs in the case will be due approximately April 28, 2002.

Hamidi is represented by William McSwain of the Dechert law firm in
Philadelphia, Pennsylvania. Both EFF and the ACLU, among others, are
expected to file amicus briefs in the case.


Links:

Documents related to Intel v. Hamidi case:
  http://www.eff.org/Cases/Intel_v_Hamidi/

Trespass to chattels analysis:
  http://eff.org/Cases/Intel_v_Hamidi/20011218_eff_trespasstc_analysis.html

Intel v. Hamidi website:
  http://www.intelhamidi.com/

Former and Current Employees of Intel website:
  http://www.faceintel.com/

ACLU brief in Intel v. Hamidi case:
  http://www.aclunc.org/expression/intel-brief.html

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CONSTITUTIONAL CHALLENGE IN RUSSIAN EBOOK FORMATTER CASE

FEDERAL COURT DEBATES DISMISSAL UNDER DIGITAL COPYRIGHT LAW

Electronic Frontier Foundation Media Advisory

San Jose, California - On Monday, April 1, 2002, Judge Whyte of the Northern
District of California Federal Court will hear arguments on Russian software
firm Elcomsoft's motion to dismiss the criminal charges leveled against it
under likely unconstitutional provisions of the Digital Millenium Copyright
Act (DMCA). Elcomsoft is charged with offering a tool that circumvents the
copy protection in Adobe eBooks, allowing fair, noninfringing use by eBook
purchasers.

Although the government has largely dropped its charges against Elcomsoft
employee Dmitry Sklyarov, the company remains under criminal prosecution,
presenting a chance for the court to look closely into the constitutional
problems with the DMCA. The Electronic Frontier Foundation (EFF) filed an
amicus brief in support of Elcomsoft as did over 35 law professors.

The hearing is open to the public, and the EFF would like to see a strong
showing of support for Elcomsoft and opposition to the DMCA's
unconstitutionality. Attendees should dress respectfully to keep from
disrupting the legal proceedings.

When: 9:00 a.m., April 1, 2002
[Note: Despite the date, this is an actual hearing.]

Where: United States Courthouse, 280 South 1st Street,
San Jose, California, 95113

Courtroom: 4th Floor, Courtroom 6

Map:
  http://www.mapquest.com/maps/map.adp?countrycode=250&country=US&address=280+S+1st+St&city=San+Jose&state=CA&zipcode=&addtohistory=++&submit.x=49&submit.y=10

Elcomsoft case archive:
  http://www.eff.org/IP/DMCA/US_v_Sklyarov/

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MARK YOUR CALENDARS FOR EFF'S ELEVENTH ANNUAL INTERNATIONAL PIONEER AWARDS!

WHO:
The Electronic Frontier Foundation, in conjunction with
the 12th Conference on Computers, Freedom, and Privacy (CFP2002).

WHAT:
EFF's Eleventh Annual International Pioneer Awards

WHEN:
Wednesday, April 17th, 2002
8:00 p.m. - 9:15 p.m.

WHERE:
Cathedral Hill Hotel, Japanese Pavilion
1101 Van Ness Ave. at Geary Blvd. San Francisco, CA 94109
Telephone 415-776-8200

This event is free and open to the general public. Refreshments will be
served. Come out to show your support for the pioneering individuals that
will be honored at our eleventh annual awards ceremony, a long standing EFF
tradition.

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

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EXCHANGE IDEAS WITH EFF FOUNDERS MITCH KAPOR AND JOHN PERRY BARLOW 
AT APRIL 16TH BENEFIT DINNER

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. 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 http://www.eff.org/Misc/Publications/John_Perry_Barlow/
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 the 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 or to RSVP at 
katina@eff.org or 415-436-9333 x101.

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ADMINISTRIVIA

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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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