Press Releases: May 2002
Civil Liberties Groups Seek Internet Publication Protection
San Francisco - The Electronic Frontier Foundation (EFF) and the First Amendment Project today asked the California Supreme Court to affirm an appeals court decision permitting publication of software pending a lower court's ruling on a trade secret case. In a tremendous victory for freedom of speech on the Internet, the appeals court had overturned a lower court injunction against publication of the software based on the publisher's First Amendment rights.
DVD-CCA, the organization that licenses DVD technology for Hollywood movie studios, originally filed the lawsuit in December 1999 and obtained a lower court injunction in January 2000 against defendant Andrew Bunner for publishing DeCSS software that decrypts DVDs. When an appeals panel overruled the lower court injunction last November, DVD-CCA then appealed to the California Supreme Court to challenge the appeals panel ruling.
The appeals panel had ruled that the trial judge failed to consider the First Amendment rights of Bunner to republish information readily obtainable in the public domain when it issued the gag order.
DVD-CCA contends that republication of DeCSS software constitutes illegal misappropriation of a trade secret. Bunner had republished DeCSS on his website after reading about it on Slashdot and deciding it was newsworthy.
"Well established trade secret law clearly holds that only those individuals who have undertaken an affirmative duty to treat information as a trade secret are required by law to keep it secret," said EFF Intellectual Property Attorney Robin Gross. "People who obtain information from the public domain have a First Amendment right to republish that information."
"We're confident the Supreme Court will recognize, as the Court of Appeal did, that this is a classic First Amendment case," said David Greene, Executive Director for the First Amendment Project and main author of the groups' legal brief.
DVD-CCA's reply brief is due on June 11, 2002, and oral argument will be scheduled before the California Supreme Court for sometime in the next eighteen months.
For this release:
Latest EFF/FAP brief in the DVD-CCA v. Bunner case:
The 6th Appellate Court's decision overturning the injunction:
The DVD Copy Control Association Petition for Review after Decision by the Court of Appeal, Sixth Appellate District:
More information on DVD-CCA v. Bunner including legal filings and media releases:
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 and privacy online. EFF is a member-supported organization and maintains one of the most-linked-to websites in the world at:
About First Amendment Project:
The First Amendment Project is a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition. FAP provides advice, educational materials, and legal representation to its core constituency of activists, journalists, and artists in service of these fundamental liberties and has a website at:
Intellectual Property Attorney
Electronic Frontier Foundation
firstname.lastname@example.org +1 415 436-9333 x112 (office), +1 415 637-5310 (cell)
Executive Director and Staff Counsel
First Amendment Project
email@example.com +1 510 208-7744
Internet Regulatory Agency Obstructs Board Access
Los Angeles - The Electronic Frontier Foundation (EFF) today filed a motion with the Los Angeles Superior Court on behalf of ICANN Director Karl Auerbach requesting the court grant him immediate access to corporate records that ICANN management has denied him for one-and-a-half years.
Auerbach, the North American Elected Director of the Internet Corporation for Assigned Names and Numbers (ICANN) began asking for corporate records in November 2000, shortly after he was elected to the Board. After nine months delay, ICANN management granted Auerbach conditional access to corporate records if he signed a "policy"—which had not been ratified by the Board of Directors—that placed his ability to access and copy the records at the discretion of ICANN management.
"I spent more than a year trying to work this out informally," noted Auerbach. "It's my right to gain access to the records I need to discharge my duties on the ICANN Board effectively."
"If ICANN management is concerned that certain information not be publicized, it must specifically identify those documents and demonstrate good reason for its concerns," explained Auerbach's lead attorney James Tyre. "ICANN cannot simply make broad, nonspecific claims of 'privacy, privilege and confidentiality' to prevent Board member access or copying of basic corporate documents."
"As even Mr. Lynn admits, ICANN requires dramatic reform," noted EFF Legal Director Cindy Cohn. "The Internet community relies on ICANN's Board members, especially its elected ones, to help find out what has gone wrong and evaluate the proposed solutions. Without access to the basic information about how ICANN has been run so far, Mr. Auerbach cannot help formulate the next incarnation of ICANN to fix the problems of the past."
Rules Digital Copyright Law Trumps Free Speech
A federal judge today denied a Russian software vendor's request to dismiss criminal charges against the company for violations of the Digital Millennium Copyright Act (DMCA).
Judge Ronald Whyte of the Federal District Court for the Northern District of California ruled that Elcomsoft, a company that markets eBook formatter software, must face criminal charges. Rejecting two legal challenges, the judge ruled that the DMCA's ban on copyright circumvention tools is constitutional even if the circumvention tools are used for legal purposes.
"It's as if the judge ruled that Congress can ban the sale of printing presses, because the First Amendment right to publish speech was not attacked directly and quills and ink are still available," noted Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "What good are the public's rights if the tools needed to make fair use or access works in the public domain are illegal?"
Despite acknowledging a lack of clarity in the Congressional record surrounding the adoption of the DMCA, Judge Whyte ruled that due process was not violated. He said the plain meaning of the DMCA statute was to ban circumvention tools completely because Congress had assumed that "most uses" of the tools would be for unlawful infringement rather than fair or noninfringing uses.
On Elcomsoft's First Amendment argument, Judge Whyte ruled that the computer program qualifies as speech, rejecting the government's argument that software is not speech. The court then ruled that the First Amendment was satisfied because the government's purpose was to control the "function" of the software rather than its "content," and that the statute did not ban more speech than necessary to meet its goal of preventing piracy and promoting electronic commerce.
"Although disappointed by Judge Whyte's unwillingness to dismiss the charges against Elcomsoft on constitutional grounds, we are pleased that he agreed that software is protected speech under the First Amendment," said EFF Intellectual Property Attorney Robin Gross. "Courts must now take the next step and give people the same rights to express themselves with software as they enjoy for traditional speech."
The court has scheduled a hearing for May 20, 2002, to set the trial date in the case.
EFF filed an amicus brief in support of Elcomsoft.
Elcomsoft is the employer of Russian programmer Dmitry Skylarov, who was also originally charged with criminal violations of the DMCA.