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EFFector - Volume 16, Issue 22 - Linux Users Unite to Stop SCO!

EFFector       Vol. 16, No. 22       August 28, 2003

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 261st Issue of EFFector:

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Action Alert: Linux Users Unite to Stop SCO!

The SCO Group, Inc. recently announced that it plans to sue individual Linux users if they refuse to pay the company a $700 licensing fee. This is an effort designed by SCO to bolster its licensing claims against IBM and Red Hat by beating up on people who can't afford a multimillion-dollar defense. SCO hasn't proven that it has a right to collect this money at all, so its attempt to hold end-users liable is a terrible misuse of the legal system. Tell Congress that SCO's tactics are unacceptable!

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California Supreme Court Upholds Free Speech in DVD Case

Sets High Standard for Publishing DVD Decoding Information

San Francisco - On August 25 the California Supreme Court ruled that publication of information regarding the decoding of DVDs merits a strong level of protection as free speech and sent a key case back to a lower court for a decision on whether a court can prevent Andrew Bunner from publishing this information, whether on the Internet, on a T-shirt, or elsewhere.

In the case, DVD Copy Control Association (DVD-CCA) v. Bunner, California resident Andrew Bunner was one of thousands of people worldwide who republished DVD-decryption software called DeCSS. DVD-CCA, the company that licenses the use of the DVD encryption code, convinced a trial court to issue an order barring publication of DeCSS pending a final decision in the case, claiming that DeCSS contained its trade secrets. The Court of Appeal ruled that the ban on publication was unconstitutional. The Supreme Court required the Court of Appeal to reexamine the evidence.

"The appeals court can now examine the movie industry's fiction that DeCSS is still a secret and that a publication ban is necessary to keep the information secret," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "DeCSS is obviously not a trade secret since it's available on thousands of websites, T-shirts, neckties, and other media worldwide." EFF serves as co-counsel on the case.

In issuing its ruling, the California Supreme Court found that publication of the DeCSS code is an activity that requires the court to apply strong First Amendment principles. DVD-CCA had claimed originally that the courts need not consider any First Amendment issues.

"We are heartened that the court acknowledged that trade secret injunctions must be subject to a high level of First Amendment scrutiny," said David Greene, Executive Director of the First Amendment Project who argued the case on behalf of Bunner. "We are confident that, having looked at the facts, the Court of Appeal will remove the restriction on Bunner's right to republish publicly available information.

DVD-CCA is a consortium of the major motion picture studios and major consumer electronics manufacturers that licenses DVD encryption technology. DVD-CCA originally filed suit in December 1999, three months after the DeCSS code became available on the Internet.

DVD-CCA obtained the preliminary anti-publication order shortly thereafter. DVD-CCA named hundreds of people in the lawsuit, including those who printed DeCSS on T-shirts. DVD-CCA contends that those who republish DeCSS improperly disclose its trade secrets, despite the fact that those people didn't create the DeCSS software which is widely available on the Internet.

DVD-CCA doesn't claim that Bunner created DeCSS or stole any trade secrets. Instead, DVD-CCA is attempting to stretch trade secret law to include Bunner, a member of the public who had no inside information or contractual arrangement with DVD-CCA, but who instead found the program on a public website and decided to republish it.

Bunner is a defendant in one of several lawsuits the entertainment industry has launched since the publication of DeCSS to mixed results.

Another branch of the case, DVD-CCA v. Pavlovich, ended this spring when the U.S. Supreme Court decided not to rule in favor of DVD-CCA after the California Supreme Court decided that it was improper to force Matthew Pavlovich, another alleged republisher of DeCSS, to come to California to defend the trade secret claim.

In other DeCSS-related litigation, the original publisher of the program, Norwegian teenager Jon Johansen, was acquitted of all criminal charges. The Norwegian government has appealed that decision, and the case is currently scheduled for re-trial in December 2003.

In another case, a coalition of movie studios prevented further publication of DeCSS by 2600 Magazine using the federal anti-circumvention provisions of the Digital Millennium Copyright Act.

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Calling All ReplayTV Commercial Skippers

As many readers know, EFF sued 28 Hollywood movie studios last year on behalf of five owners of ReplayTV 4000 units in response to studio claims that consumers who automatically skip commercials are breaking the law. The lawsuit asked the Court to rule that commercial skipping is fair use and NOT copyright infringement. After months of litigation, EFF has finally forced the studios to give up their threats and concede that our five clients can skip all the commercials they want with their ReplayTVs without fear of legal action.

So where do you come in? We've won the right to skip commercials for five consumers; now we want to make it 500, or if possible, 5,000 - the more the merrier. If you own a ReplayTV 4000 series unit or know anyone who does, contact us immediately. We are in the process of finalizing our negotiations with the movie studios and would like to get similar protection for everyone who has a ReplayTV and uses it for automatic commercial skipping. Contact us at:

nocommercials@eff.org

P.S. If you use some other technology to skip commercials other than a ReplayTV 4000 series unit, drop us a line as well. While you may be outside the scope of the current case, we will be looking to bring similar cases in the future to guarantee the fair use rights of all consumers, no matter what technology you may use to enjoy them.

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EFF Members: Renew Your Membership Today!

Already an EFF member? If you value EFF's work, help us keep it up by renewing your membership this month. Your financial help will allow us to focus on the things that matter to you. Like defending the Internet against the RIAA, helping Linux users tell the government that SCO is full of hot air and getting the word out on DirecTV's extortion-like tactics. We're also going back to court to fight for the future of file-sharing in the Morpheus case, defending reverse-engineering in the BnetD case and playing a wide range of roles in other important litigation. If that's not enough, we've also got a new silver "Proud Member" sticker and a metal EFF- branded Bill of Rights. How cool is that?

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Deep Links

Deep Links features noteworthy news items from around the Internet.

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Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please visit our online calendar.
  • Friday, August 29 - Kevin Bankston at DragonCon 2003, Atlanta - (All day event)
  • Tuesday, September 2 - Wendy Seltzer at WSIS, Denmark - (10:00 AM - 11:00 AM)
  • Sunday, September 7 - Cindy Cohn at Ars Electronica, Linz Austria (11:30 AM)
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The Electronic Frontier Foundation
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Editor:
Ren Bucholz, Activist
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