EFFector Vol. 17, No. 2 January 27, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 277th Issue of EFFector:
- EFF Action Alert: Keep Facts Free!
- EFF to Defend Freedom to Innovate in Grokster Appeal
- Recording Industry Must Respect Privacy of Accused Music Sharers
- DVD Descrambling Code Not a Trade Secret
- Op-ed: "Betamax Was a Steppingstone: 1984 Court Ruling Launched a Technological Revolution"
- Sun Microsystems Donates Linux Servers to EFF
- Deep Links (17): USA PATRIOT Act v. the Constitution
- EFF Court Docket: 02.03.04 - MGM v. Grokster; 02.09.04 - OPG v. Diebold
- Staff Calendar: 01.28.04 - Jason Schultz speaks in Nashville, TN; 01.31.04 - Wendy Seltzer speaks at Digital Independence, San Francisco, CA
Action Alert: Keep Facts Free!
We're surrounded by free factual information, but there's a bill in Congress that would lock it all up. The Database and Collections of Information Misappropriation Act (DCIMA, H.R. 3261) extends extremely broad copyright-like protections to collections of factual data - data like the price of a TV, the temperature in Arizona or information collected during scientific research. DCIMA would allow companies to sue anyone who interferes with their ability to profit from data that they collect. In other words, academic researchers, public libraries, Internet innovators and other database users would have to pay up if someone else claimed to have assembled the data first. This is not only unnecessary, it's bad policy.
EFF to Defend Freedom to Innovate in Grokster Appeal
San Francisco - On Tuesday, February 3, a federal appeals court will hear an entertainment industry appeal in MGM Studios v. Grokster, a case that will test the strength of the Supreme Court's famous "Betamax" decision in the digital arena.
"This case is about whether copyright owners have the right to veto new technologies and stifle innovation," said EFF Senior Staff Attorney Fred von Lohmann. "All innovators have a great deal at stake in the conflict over peer-to-peer software."
Case: MGM Studios v. Grokster
(case numbers 03-55894, 03-55901, and 03-56236)
Date: 1:30 p.m. on Tuesday, February 3, 2004
Location: U.S. Court of Appeals for the Ninth Circuit
125 South Grand Avenue
Pasadena, CA 91105
Judges: Hon. Robert Boochever, Hon. John Noonan, Hon. Sydney Thomas
In April of last year, StreamCast (developer of Morpheus) and fellow peer-to-peer software distributor Grokster won a landmark victory against 28 entertainment companies when a federal court declared that the software distributors are not liable for copyright infringement by software users when the software had significant non-infringing uses. In ruling that file-sharing software deserves the same protection granted to the VCR or photocopier, the court relied on the 1984 Supreme Court decision determining that Sony could not be held responsible for copyright infringement by people who used Betamax VCRs.
Note to EFF supporters planning to attend the hearing: please consider this a "dress-up day" - suits or "business casual" are appropriate. No T-shirts. No picket signs in the courtroom, no outbursts. It is important to demonstrate respect for the court.
Recording Industry Must Respect Privacy of Accused Music Sharers
EFF Supports Extending Verizon Decision to Protect User Privacy
Saint Louis, MO - EFF and 21 other consumer and privacy groups this week sided with Charter Communications, Inc., in its struggle to protect customer privacy.
The groups urged a federal court to prevent the Recording Industry Association of America (RIAA) from forcing Internet Service Provider Charter Communications to identify customers the RIAA has accused of offering infringing music on a peer-to-peer system. In December 2003, a federal appeals court in Washington, D.C., ruled that the RIAA could not use special, non-judicial subpoenas under the Digital Millennium Copyright Act (DMCA) to demand that the identities of alleged filesharers be revealed.
"The RIAA wants to use the Charter case to erase the D.C. court's Verizon decision and set back Internet users' privacy," said EFF Legal Director Cindy Cohn. "The courts should require careful judicial consideration of facts supporting any accusations and hear the other side of the story before violating the privacy of any Internet user."
EFF filed a joint "friend of the court" brief urging that the same strong protections that apply for anonymous speech in other contexts also apply for claims of copyright , infringement.
- For the full media release
- Consumer and privacy groups' brief in support of Charter
- RIAA v. Charter case archive
DVD Descrambling Code Not a Trade Secret
DVD CCA Surrenders in Bunner DeCSS Case
San Jose, California - In a surprising retreat, a consortium of entertainment and technology companies known as DVD CCA sought this week to dismiss its lawsuit against Andrew Bunner, the republisher of a computer program that allows movie lovers to play their DVDs on computers running the Linux operating system.
DVD CCA effectively gave up a multi-year effort to have republication of the program, called DeCSS, declared a violation of trade secret laws.
"DeCSS has been available on hundreds if not thousands of websites for four years now," said EFF Legal Director Cindy Cohn. "We're pleased that the DVD CCA has finally stopped attempting to deny the obvious: DeCSS is not a secret."
The California Supreme Court last year ruled in favor of Bunner, finding that only in very narrow circumstances could publication of computer code be preliminarily restrained.
Op-ed: "Betamax Was a Steppingstone: 1984 Court Ruling Launched a Technological Revolution"
By Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
(Note: this op-ed was previously published on January 26 in the San Jose Mercury News)
The MP3 generation may not remember it, but 20 years ago, Hollywood fell just one vote short of winning a ban on the VCR. This month marks the 20th anniversary of the Supreme Court's 5-4 decision in Universal City Studios v. Sony, the case in which two movie studios asked the federal courts to impound all Betamax VCRs as tools of "piracy."
Thankfully, the Supreme Court spurned Hollywood's arguments, best summarized by Motion Picture Association of America chief Jack Valenti's famous quote: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." The court decided that American consumers were not violating copyright laws when they time-shifted television with their VCRs. It also declared that Sony was not violating copyright laws by selling VCRs, even though some people might use them to infringe copyrights. In other words, you don't go after the crow bar makers just because there are burglars out there.
In the 20 years since, we have learned two important lessons. First, new technologies and copyrights are complementary products in the long run. New technologies make copyrights more valuable because they unleash new markets and business models. That's been the rule, without exception, for a century. The VCR ended up making Hollywood rich, with sales of pre- recorded cassettes quickly eclipsing the receipts from box office ticket sales. There's no reason to think that the Internet won't create even more revenue-generating opportunities.
Second, if you want a vibrant technology sector, you let the innovators invent without forcing them to beg permission from media moguls first. Sony didn't ask permission to build the Betamax, and that's what made the VCR possible. In fact, the Supreme Court's rule set the stage for most of the amazing technologies we take for granted today. After all, would Hollywood have allowed the personal computer, if it had been asked? Would the recording industry have permitted hard drives? What about the book publishing industry and the scanner? And we know how these industries feel about the Internet. Fortunately, the rule in America is that innovators are beholden only to their customers and the marketplace, not to Disney or the Recording Industry Association of America.
Unfortunately, the entertainment industries are trying to get the courts and Congress to forget these lessons. In cases involving peer-to-peer file sharing software, their lawyers hope that amid all the shouting about "piracy" they can persuade judges to make future innovators answer to movie moguls instead of the American consumer. Meanwhile, in Washington, they urge legislators and bureaucrats to put innovators under the thumb of government regulation.
In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation. The legacy of that decision has been technology that benefits us all. Let's hope that Congress and the courts have learned that lesson, even if the movie moguls haven't.
Sun Microsystems Donates Linux Servers to EFF
We would like to thank Sun Microsystems for their generous donation of two new Sun Fire v65x servers running Linux, which will be used to host the EFF website. Donations like this one help to ensure that EFF has the resources necessary to continue to fight the good fight for freedom online.
Thank you, Sun!
Deep Links features noteworthy news items from around the Internet.
- USA PATRIOT Act v. the Constitution
This time, the Constitution won. PDF
- FCC to FBI: No Snoop for You!
(Registration unfortunately required.)
The FBI gets push-back from the FCC over forcing VoIP developers to build an easy wiretap into Net phone calls.
- Afraid to Go Back into the Air? You Should Be
Northwest Airlines has admitted to violating the privacy of more than 10 million people by secretly handing over their personal information to NASA. Now, Northwest faces a class action lawsuit while the airlines scramble to develop privacy guidelines for the reportedly "ad hoc" practice of transferring passenger data to the government:
CNN, USA Today
Visit EFF's action center to ask for a Congressional investigation and hearings on the state of our travel privacy.
- The Tyranny of Copyright?
(Registration unfortunately required.)
NYT Magazine on the emerging social movement aimed at restoring traditional balance to copyright law.
- ISPs Hold Out for Due Process
After December's court win for Verizon, ISPs are no longer willing to invade their customers' privacy on the mere rubber-stamped say-so of the RIAA.
- Italian Job: Mod-Chipping is Legal
(Silicon.com; regisration unfortunately required.)
The court called restrictions on tinkering with one's PlayStation "absurd".
- Senator Says RIAA Shouldn't "Pummel" P2P Users
Instead, they should be looking for constructive solutions that get artists paid. Sound familiar?
- Golf Score Dispute Tees Off
The PGA wants to control the dissemination of real-time score information on the Net; opponents say that would put a hole in Amendment Number One.
- Apple's iTunes Not the Only Solution to P2P War
This op-ed argues that Magnatune offers the better model for the future of music downloading.
- Musicians Find Profits, not Piracy, on the Net
(NYT; registration unfortunately required.)
Some bands are making DRM-free concert recordings available online. Needless to day, fans are loving it.
- Music Royalties Rise as CD Sales Fall
(NYT; registration unfortunately required.)
Songwriters - who often rely on royalties from collective licenses - are making more money than ever.
- Downloaders Tout Pepsi, Laugh All the Way to Bank
Some teens who paid the RIAA thousands to settle file-sharing lawsuits are earning the money back and then some.
- Don't Say We Didn't Warn You!
Remember last week's scathing report on the SERVE program? Turns out a similar system in Canada has already been compromised.
- Poll on Gay Marriage Dissolved Due to Irreconcilable Differences
A conservative organization took down its online poll once Net-savvy activists started to vote.
- Face Recognition Goes 3D
Future fashion trend for those who value their civil liberties? Face masks.
- LA Won't Stand for Bush's "Patriot" Games
(LA Times; registration unfortunately required.)
The city council is taking a formal position opposing extension of the USA PATRIOT Act.
- The History of the DeCSS Haiku
Haiku and its history brought to you courtesy of EFF's Seth Schoen.
EFF Court Docket
- February 3 - MGM v. Grokster
U.S. Court of Appeals
- February 9 - OPG v. Diebold
U.S. District Court, Northern California
280 South 1st street
San Jose, CA
For a complete listing of EFF speaking engagements (with locations and times), please visit: http://www.eff.org/calendar/
- January 28
Jason Schultz speaks on contemporary legal, copyright and technology issue stemming from the inherent creative tensions between new technology and artistic expression.
1:15 p.m. - 2:15 p.m.
- January 31
Wendy Seltzer speaks at Digital Independence, Independent Media & Piracy panel
San Francisco, CA
2:10 p.m. - 3:30 p.m.
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