EFFector       Vol. 12, No. 4       Dec. 28, 1999       [email protected]

  A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

 IN THE 148th ISSUE OF EFFECTOR (now with over 20,000 subscribers!):

    * Intellectual Property Interests Launch Holiday Attack on Free
      Expression
         + Trade Group Files Suit Against All Identifiable Posters of or
           Linkers to Linux DVD Hack
              o WHAT YOU CAN DO: Show up!
         + Real Networks Gets Injunction against Streambox for Reverse
           Engineering "RealMedia"
    * Administrivia

  For more information on EFF activities & alerts: http://www.eff.org
    _________________________________________________________________



 Intellectual Property Interests Launch Holiday Attack on Free Expression



 Trade Group Files Suit Against All Identifiable Posters of or Linkers to
 Linux DVD Hack

   EFF Assembling Legal Team to Defend Targets

  The movie industry, through its recently activiated Digital Video Disc
  Content Control Association (DVD CCA), a trade organization
  controlling DVD patents, has filed a lawsuit in California against
  dozens of people around the world. who have published information, or
  links to information, about the DVD Content Scrambling System (CSS),
  on the Internet. As many as 500 defendants could eventually be named.
  The DVD CCA claims that the defendants are violating the association's
  trade secrets and other intellectual property rights by posting the
  source code of (or simply having links to other sites with the source
  code of) a legally reverse-engineered means of decoding DVD discs. An
  important hearing in the case has been scheduled for tomorrow, Wed.,
  Dec. 29, 1999.

  Tomorrow's hearing is on whether the judge should issue a temporary
  restraining order against the defendants, who have been publishing
  information about the DVD content scrambling system in various
  locations in the US and worldwide. Any such order, if issued, would
  only apply for a few weeks, while the parties argued in court about
  whether a permanent injunction should restrict these defendants from
  publishing this information for the duration of the court case.

  It is EFF's opinion that this lawsuit is an attempt to architect law
  to favor a particular business model at the expense of free
  expression. It is an affront to the First Amendment (and UN human
  rights accords) because the information the programmers posted is
  legal. EFF also objects to the DVD CCA's attempt to blur the
  distinction between posting material on one's own Web site and merely
  linking to it (i.e., providing directions to it) elsewhere.

  These defendant individuals have been publishing legitimate, protected
  speech, including software, textual descriptions, and discussions of
  the DVD CSS. This speech is in no way copied or acquired from the DVD
  CCA's trade-secret documents. Copyrights do not give anyone any rights
  in "ideas", only in the exact form in which they are expressed.
  Trade-secret law only controls people who agreed to keep it secret and
  have been told the secret; other people remain free to independently
  discover the secret. The ideas being discussed and implemented were
  apparently extracted by having an engineer study a DVD product
  ("reverse engineering it"), which is a legal activity that is not
  restricted by any laws in most jurisdictions.

  The DVD CCA is trying to shut these speakers down by starting with the
  false assumption that reverse engineering is illegal. It is not. If,
  for example, the DVD reverse engineering had been done in Santa Clara,
  it would be legal under the 9th Circuit Court case Sega v. Accolade.
  See also the 1998 US Digital Millennium Copyright Act, which provides
  specifically in section 1201(f) that reverse engineering of an
  copy-protection encryption system is legal for "interoperability",
  which is why it was done in this case.

  The case itself is organized as a "theft of trade secrets" case; it
  doesn't use the Digital Millennium Copyright Act and doesn't appear to
  rely otherwise on copyright law. The root of the case is their
  allegation that the original reverse-engineering of the DVD CSS system
  was "improper" (paragraph 18), "unauthorized" (para. 20), "wrongfully
  appropriating proprietary trade secrets" (para. 21), "unauthorized use
  of proprietary CSS information, which was illegally "hacked" (para.
  22). However, they provide no proof of these allegations, and they are
  unlikely to be true. If the original reverse-engineering was legal,
  which we believe is true, then the subsequent republication of the
  information is also legal, and the case is merely a tool to harass
  people exercising their legal rights.

  EFF's interest in the case is to protect reverse engineering as part
  of First Amendment protected speech. EFF legal counsel Robin Gross,
  and pro-bono counsel Allonn Levy of Huber, Samuelson will be at Santa
  Clara Superior Court tomorrow morning to represent at least two
  defendants, Chris DiBona and Andrew Bunner. EFF co-founder John
  Gilmore will also attend at the hearing tomorrow. EFF will at minimum
  provide "stop-gap" defense to avoid a temporary restraining order
  against the defendants. Following the hearing, EFF will assess the
  situation and the level of our involvement.

  EFF is committed to ensuring that individuals rights are protected,
  and free speech is a fundamental right. It would be a poor public
  policy to allow intellectual property owners to expand their property
  at the expense of free speech -- particularly when the speech in
  question elucidates how companies constrain the distribution of other
  free expression.

  The technology at issue here is the DVD Content Scrambling System
  (CSS), a technical effort to prevent people who have legally purchased
  a DVD from making completely legal copies of it for their own use. It
  is legal ("fair use") for people to make personal copies of
  copyrighted material available to them. (See, e.g., the Supreme
  Court's 1984 decision in the "Betamax" case, Sony Corp. v. Universal
  City Studios. In that case a movie studio was trying to have all VCR's
  banned from the United States because of the potential to "pirate"
  valuable movies -- just as in the current case they are attempting to
  have all reverse-engineered decoders of DVDs banned. The Supreme Court
  ruled that if VCR's have even a single non-infringing use, they cannot
  be banned. It is clear that the reverse-engineered DVD CSS has a
  non-infringing use, the viewing of DVDs on the Linux operating
  system.) The underlying technology is for censorship, for control over
  who can communicate what to whom. The DVD CSS prevents people from
  making illegal copies -- and also prevents them from making LEGAL
  copies, by preventing them from making ALL copies. The publishers are
  trying to take away, by technical means, the rights guaranteed to
  citizens under the copyright laws of many jurisdictions, including the
  US.

  The decoder source code at the center of the case, called "DeCSS", was
  created (by third parties, not the defendants) to enable Linux
  computers to utilize DVD drives and content, since the industry itself
  failed to produce the necessary drivers for this operating system. DVD
  CCA alleges rather unbelievably that the source code's real purpose is
  to enable illegal duplication of DVD discs. The industry association
  also misleadingly suggests that the DVD medium is simply a vehicle for
  commercial content delivery, when in fact it is a read-write medium
  intended to be used as computer storage by computer-using consumers,
  just like hard drives or writable CDs.

  We believe that the industry is mounting this legal attack merely as a
  charade to discourage the widespread adoption of the legally
  reverse-engineered information into popular open source software
  programs. They knew that their "encryption system" was weak and that
  it would not withstand scrutiny, so they kept it secret as long as
  possible. Now that it's out in the open, they are wielding legal clubs
  against anyone who attempts to write about it or use it, to delay the
  inevitable. If they wanted to keep their information secret, they
  shouldn't have made millions of copies of it and sold them all over
  the world. Instead their tactics have been to follow the inevitable
  disclosure by swift oppression, using large bankrolls to send lawyers
  against little people. But the little people are part of the Linux
  community and the Internet community, which have made billions of
  dollars recently, and are not kindly disposed toward oppression.

  More information, including case documents, is available at Chris
  DiBona's site: http://www.dibona.com/social/dvd/index.shtml


   WHAT YOU CAN DO: Show up!

  If you're in the SF Bay Area and can make it to the hearing, consider
  it "Netizen's Dress-Up Day" on Wed., Dec. 29. Meet at the front of the
  Santa Clara County Superior Court, 191 N. 1st St., San Jose, CA, at
  8am PST, dressed sharp, to personally attend the DVD case hearing. It
  is important that the judge see an unexpectedly large and intent
  attendance. The hearing will begin at 8:30 in one of Departments 2, 9
  or 12 (uncertain at this time).

  We will follow the hearing with a press conference outside the
  courthouse, and many attendees will do a group lunch at nearby Havana
  Cuba Restaurant.

  Watch the wheels of justice grind! Shake hands with the intrepid
  lawyers who are working hard to protect our rights! Meet interesting
  defendants risking a lot to excercise their rights!

  Please make a positive impression on the judge. Don those expensive,
  semi-formal duds. Show the court -- by showing up -- that this case
  matters to more people than just the plaintiff and defendants.
  Demonstrate that this decision will make a difference to society. That
  the public and the press are watching, and really do care that the
  issue is handled well.

  We'll have to be quiet and orderly while we're in the courthouse.
  There will be no questions from the audience (that's us), and no
  photography there, but the session will be tape-recorded and
  transcribed, and you can take notes if you like. Remember that courts
  have strict security these days, so don't bring cameras, or even small
  pocket knives unless you want them held by entrance guards while
  you're in the courthouse.

  We realize this is very short notice, and that only locals are likely
  to be able to attend, but this case is moving rapidly toward filing
  and there is nothing we can do to delay it.

  For more information on this gathering, see:
  http://www.dibona.com/social/dvd/plan/

              ___________________________________________

 Real Networks Gets Injunction against Streambox for Reverse Engineering
 "RealMedia"

  Real Networks, makers of the proprietary streaming audio-video system
  known variously as RealMedia, RealAudio and RealVideo, have succeeded
  in getting a preliminary injunction under the Digital Millenium
  Copyright Act (DMCA) against Streambox, makers of "Ripper", software
  that, among other things, has reverse-engineered the RealMedia formats
  and/or protocols, allowing users to convert their RealMedia files into
  other formats.

  EFF believes this suit is without merit and the injunction an improper
  restraint of freedom of expression, because the Ripper software has
  many legitimate uses, including enabling of fair use and time or
  format shifting (rights upheld in a number of court decisions,
  including those in RIAA v. Diamond and Sega v. Accolade.) Real
  Networks' characterization of Ripper as nothing but a tool for piracy
  is factually incorrect.

  The DMCA was not intended, and may not be used, to suppress legtimate
  technologies or expression, nor the fair use rights of the public.

    _________________________________________________________________

                                Administrivia

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