EFFector       Vol. 13, No. 4       Apr. 3, 2000       [email protected]

  A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

 IN THE 152nd ISSUE OF EFFECTOR (now with over 23,000 subscribers!):

    * Changes at EFF
         + EFF Past and Present
         + EFF in Transition
         + EFF Tomorrow
    * Ace Attorney Enters Battle Over DVDs
    * EFF Reply Comments to Copyright Office on DMCA Rulemaking
         + [Introduction]
         + Digital Equivalent of First Sale Rule - "First Access" Rule
         + Right to Make Digital Fair Use
         + Response to Copyright Industry Comments
    * Administrivia

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

Changes at EFF

  Dear EFF members,

  EFF is going through some changes, and we wanted to let you all know
  what's happening. The rest of this EFFector continues our editorial
  focus on cyberspace policy issues.

 EFF Past and Present

  As most of you know, EFF was founded almost 10 years ago to defend
  innocent computer users and companies against vastly overzealous raids
  and judicial actions by the U.S. Secret Service.

  Since then, EFF has fought a hard decade to defend fundamental rights
  that have been put at risk by the online revolution and by reactions
  to that revolution -- both in government and the corporate world. EFF
  also acts to preempt such reactions, through public education and
  policy analysis that are done before trouble erupts.

  Doing this is hard work, and the electronic frontier is more chaotic
  than ever, even though - or perhaps because - it is vastly more
  populated today than it was in 1990.

 EFF in Transition

  EFF is a unique organization, supported almost entirely by members and
  donors, and working in the true public interest on vital and active
  issues. This broad public base of supporters is our constituency, and
  we are neither simply a foundation-supported think tank nor
  industry-funded special interest lobby.

  We know you want us to fight the good fight for fundamental rights in
  the online world. This, with your support, we will continue to do.

  There have been some EFF leadership changes, and new hires in recent
  times. Two of the original founders and another long-term board member
  have committed to continue steering the organization into a
  challenging future.

  Issues and cases that warrant EFF involvement come up literally on a
  daily basis. With so much to do, it is no surprise that over time
  fundamental differences occasionally arise internally over the right
  priorities, and over a long-term vision for the organization. EFF has
  recently resolved some of these differences, and remains committed to
  the founding principles of our mission.

  Our new Chairman of the Board, Internet entrepreneur and early online
  publisher Brad Templeton, joined EFF soon after its founding (and some
  of you may remember his writings from the very first volume of
  EFFector). He joined the EFF board in 1997. Templeton founded ClariNet
  Communications Corp., the net's first and largest electronic
  newspaper, in 1989 (since merged with Newsedge Corp.) He is on the
  advisory board of, and is an investor in, the e-mail company Topica
  and the Web user interface venture Troba, and is involved in a variety
  of software development and publishing operations. Brad started the
  net's most widely read newsgroup, rec.humor.funny, and authored some
  of the best-known FAQs, including "Emily Postnews Answers Your
  Questions on Netiquette". His home page is:
  http://www.templetons.com

  EFF Co-Founder and Boardmember John Perry Barlow remains as
  Vice-Chairman and speaks the story of EFF around the world. Barlow is
  a retired Wyoming cattle rancher, a former lyricist for the Grateful
  Dead, and a Fellow at Harvard Law School's Berkman Center for Internet
  and Society. He is a writer, lecturer, editor and consultant on
  subjects relating to the virtualization of society, and has
  contributed to and/or worked with Communications of the ACM, WIRED
  magazine, Vanguard Group, the Global Business Network,Diamond
  Technology Partners, and the National Computational Science Alliance.
  His home page is:
  http://www.eff.org/homes/barlow/

  John Gilmore, Boardmember and Co-Founder of EFF, has become its
  interim Executive Director. John has a long career in cyberspace civil
  liberties, including more than ten years of focus on encryption
  policy, in which his views have gradually gained sway. He has
  substantial technical and management experience from several startup
  companies, including Cygnus Solutions, which he co-founded, and which
  was acquired in January by Red Hat, Inc. John also has strong ties to
  the open source software community, which cares deeply about the
  freedom to innovate and to publish. His home page is:
  http://www.toad.com/gnu/

  Additionally, EFF has brought on a Development & Marketing Director
  (Tom McGuire), a Public Policy Director (Lauren Gelman), a Press
  Officer (Katina Bishop), and a Membership Coordinator (Kathleen
  Guneratne) in the last year, and is seeking a Legal Services Director.

  EFF and Tara Lemmey, its former Executive Director, have mutually
  agreed to part ways, but will continue working together on important
  upcoming projects. Tara will be dedicating her full energies to a
  spinoff known as Project LENS (Law, Economics, Nature & Self) which
  she initiated in 1997. Project LENS will be hosting a conference on
  identity and related issues such as biometrics and privacy in October
  of this year. EFF will be a founding sponsor of this conference.

  EFF will immediately conduct a search for a permanent Executive
  Director. We are still deciding on the qualifications of a successful
  candidate. Interested parties can send email to [email protected].

 EFF Tomorrow

  EFF continues to pursue its long-term mission of educating the public,
  policymakers, and courts about the issues that arise when traditional
  expectations conflict with the new worlds created by computers and the
  Internet. We remain focused on civil liberties and civil
  responsibilities in cyberspace. We continue to offer legal advice and
  referrals, a large archive of current and historical online civil
  liberties information, and information for the press and policymakers
  about the long-term issues that arise in the many short-term conflicts
  that come up on the Net.

  Our board members John Perry Barlow and Esther Dyson have been writing
  and speaking about the conflicts between intellectual property
  protection and free speech for years. These issues have come to a head
  in the last year, providing a new area for EFF's activities. Other
  articles in this EFFector discuss some of the issues involved.

  Our path is not an easy one. Every day we learn that if we don't step
  forward to defend freedom to speak, freedom to encrypt and the rights
  of privacy, often nobody will. The issues are contentious and the
  times are "interesting" in the sense of the Chinese curse.

  We thank you, our members, supporters, and subscribers, for helping us
  bring some order to the frontier as it continues to evolve at high
  speed. We pledge to continue "fighting the good fight" to keep
  cyberspace a safe place for civil liberties, and to teach everyone
  what it means to act responsibly online.

    John Gilmore, Interim Executive Director
    Brad Templeton, Chairman
    John Perry Barlow, Vice-Chairman

    _________________________________________________________________

    For Immediate Release March 27, 2000

Ace Attorney Enters Battle Over DVDs

   Civil Liberties Group Pairs with Renowned First Amendment Lawyer Martin
   Garbus in the Fight for Free Expression on the Internet

    Contact:
    Katina Bishop
    (415) 436-9333 ex. 101, Electronic Frontier Foundation

  San Francisco, CA -- Martin Garbus a prominent NY First Amendment
  attorney has joined the Electronic Frontier Foundation's (EFF's) DVD
  legal team as head litigator in a groundbreaking case that challenges
  the MPAA's controversial interpretation of the Digital Millennium
  Copyright Act. Garbus's addition to the DVD legal team brings high
  caliber litigation expertise to EFF's continuing fight for free
  expression on the Internet.

  "This is one of the most important cases of the new Millennium
  concerning free expression on the Internet," stated Martin Garbus.
  "The US Supreme Court will ultimately decide whether corporations or
  American citizens will be able to determine what the American public
  can see hear and read. This case stands for freedom, for the media,
  for the people, and against selfish corporate greed. With such
  fundamental rights in question, I felt compelled to get involved."

  Garbus is one of the country's leading trial attorneys and a founding
  partner of NY firm Frankfurt, Garbus, Klein, and Selz, PC where he has
  long been engaged in the fight for civil liberties. Garbus
  successfully tried complex intellectual property and media cases in
  nearly every state in the country. He has appeared before the US
  Supreme Court and has taught law at Columbia and Yale Universities. A
  frequent contributor to major newspapers and national magazines,
  including the New York Times, Washington Post, and Los Angeles Times,
  Garbus also regularly comments upon current legal issues for NBC, CBS,
  Time, and Newsweek.

  "EFF is excited to work with such an accomplished First Amendment
  litigator and to have the benefit of Garbus' court room skills
  fighting for free expression online," stated Robin Gross, EFF staff
  attorney. "This case represents a continuation in EFF's ten-year
  battle to protect civil liberties on the 'Net. It strikes at the core
  of EFF's mission to fight for free expression, the right to reverse
  engineer software, and the right to publish the results without fear
  of prosecution."

  The motion picture industry has launched a series of legal attacks
  against several Web site publishers for posting information on the
  weak security of DVDs including 2600 Magazine in NY. EFF, which is
  leading the defense in the cases brought in California, New York,
  Connecticut, and Norway, believes that the industry continues to
  inappropriately label speech about the technical insecurity of DVD's
  as stealing digital copies of movies.

  EFF's New York DVD Legal Defense Team consists of Martin Garbus of
  Frankfurt, Garbus, Klein, and Selz; Eben Moglen of Columbia University
  Law; Allonn Levy of Huber Samuelson; and Robin Gross of the Electronic
  Frontier Foundation. The trial date has been set for December 5, 2000
  in federal district court in New York.

  EFF's work in the DVD cases is part of its Campaign for Audiovisual
  Free Expression (CAFE), which it launched last year to address complex
  societal and legal issues raised by new technological measures for
  protecting intellectual property rights. A special fund has been
  established by EFF to support the costly nature of this litigation.
  Donations are tax-deductible and can be made online via EFF's Web
  site.

  For more information on Martin Garbus and his work, see:
  http://www.fgks.com

  For complete information on the MPAA and DVD-CCA cases, see:
  http://www.eff.org/IP/Video

  For more information concerning EFF's Campaign for Audiovisual Free
  Expression, see:
  http://www.eff.org/cafe

  The Electronic Frontier Foundation (http://www.eff.org) is the leading
  global nonprofit organization linking technical architectures with
  legal frameworks to support the rights of individuals in an open
  society. Founded in 1990, EFF actively encourages and challenges
  industry and government to s upport free expression, privacy, and
  openness in the information society. EFF is a member-supported
  organization and maintains one of the most-linked-to Web sites in the
  world.

    _________________________________________________________________

EFF Reply Comments to Copyright Office on DMCA Rulemaking

  Mr. David O. Carson
  Office of the General Counsel
  Copyright Office GC/I&R
  P.O. Box 70400
  Southwest Station
  Washington, D.C. 20024
  Sent via email: [email protected]

  RE: REPLY COMMENTS -- Exemption to DMCA's Prohibition on Circumvention
  of Copyright Protection Systems for Access Control Technologies

  Mr. Carson:

 [Introduction]

  The Electronic Frontier Foundation (EFF) appreciates the opportunity
  to submit reply comments to aid the Copyright Office in its task of
  determining additional classes of works to exempt from the Digital
  Millennium Copyright Act's circumvention ban. Congress acknowledged
  the adverse impact likely upon individual rights from the Act's
  general ban on circumvention, and instructed the Copyright Office to
  exempt further classes in addition to the few exceptions listed in the
  statute in order to achieve balance among interests in the digital
  environment.

  Because the DMCA only permits exemption under a narrow set of
  circumstances, it tips copyright's traditional balance overwhelmingly
  in favor of copyright holders at the expense of free expression, fair
  use, and innovation. Rather than outlaw reverse engineering generally
  and then selecting a few specific circumstances in which to permit the
  activity, Congress should have outlawed illegal activity while leaving
  legal reverse engineering intact to remain a primary driver in the
  emerging information economy.

 Digital Equivalent of First Sale Rule - "First Access" Rule

  In order to restore the delicate balance to copyright law in a digital
  environment, traditional principles such as the First Sale Rule must
  be granted digital equivalents. Under copyright law's First Sale
  Doctrine, copyright holders' right to control what happens to a
  particular copy of a work are cut-off once the author has first placed
  the work into the stream of commerce. The wisdom behind this
  prohibition against perpetual control over a particular work by the
  author continues despite technology's advancement to a state promising
  such perfect control over all works. To grant copyright holders the
  right to control all uses of works treads dangerously upon First
  Amendment principles and will certainly upset copyright's balance.

  Because the DMCA grants copyright holders a new right to control
  access to digital works, this right must be similarly limited by a
  "First Access Rule" that prohibits copyright holders from governing
  each and every lawful access, use, and enjoyment of the work once
  initial access has been authorized. Congress never intended, nor would
  the Constitution permit copyright holders to be granted such a broad
  and sweeping right to control all experiencing of creative expression.
  The access right granted to copyright holders in the DMCA must be
  limited to the first lawful accessing of a work and not each
  subsequent lawful accessing and use of that work.

  For example, when a DVD is lawfully purchased, it is implied that the
  purchaser is authorized to access the file contained within the
  physical media in order to view it on whatever platform that person
  uses. A copyright holder should not be granted the right to control
  the consumer's lawful experience with the DVD. Allowing copyright
  holders to tie hardware and software together to control the
  experiencing of the work as in the case of copy protection for DVDs,
  eviscerates copyright law's First Sale Rule and years of careful
  judicial endorsement for this limitation to the copyright holders
  exclusive bundle of rights. Balance requires limitations to the
  perfect control desired for by the copyright industries. Cutting off
  the copyright holder's right to control the lawful purchaser's
  accessing of a particular work after the initial authorization is
  granted ensures that balance can be maintained and all interests are
  protected by the DMCA. Therefore, the Copyright Office should define
  the DMCA's access right narrowly, restricted by a First Access Rule.

 Right to Make Digital Fair Use

  All classes of works should be exempt from the Act's general
  circumvention ban when the purpose for the circumvention is to make a
  fair use or engage in another non-infringing uses. Because technology
  enables copyright holders to dictate and architect the parameters for
  the public's use and enjoyment of a particular work, the need to
  protect society's interests in access and using the work should be
  given considerable attention. Infringing uses of works can be punished
  under existing theories of copyright law; so allowing circumvention
  for the purpose of engaging in a non-infringing fair use would prove
  harmless to the copyright holder, while it preserves the public's
  interest and right to use the copyrighted expression.

  Claims by the copyright industry that such broad additional rights
  should be created to combat its alleged vulnerability in a digital
  environment overlook the fact that technology enables copyright
  holders with greater protection over their works than traditional
  space ever did. Authors have never had the ability to program a book
  to delete itself after a particular date or prohibit the printing or
  copying of any particular page within it.

  Indeed, technology provides authors with far greater power over their
  works than the law has been willing to grant them. The power of
  perfect control over use has never granted to an author by copyright
  law. Fair use is part of copyright law's intended design. This new
  power can easily be abused without substantial limitations placed upon
  it to ensure that individuals' rights are preserved as well.
  Therefore, the Copyright Office should recognize a broad exemption for
  all classes of works where the circumvention was engaged to make a
  fair use of the work. Fair use rights are as important in the digital
  environment as they are in traditional space and necessary to achieve
  balance in the law.

 Response to Copyright Industry Comments

  Comments supplied by the copyright industry recommending no
  limitations be placed on the DMCA's circumvention ban undermine
  Congress' express intent in instructing the Copyright Office to
  rectify the danger and adverse impact it foresaw at the Act's
  inception. Particularly, comments supplied by Time Warner, Sony, and
  the MPAA refuse to acknowledge the potential dangers inherent in
  granting such broad rights to control creative expression.

  Additionally claims suggesting that copyright holders are unwilling to
  distribute their works in electronic form in the absence of strong
  technological protection measures ignore the numerous authors and
  composers who are currently taking advantage of the popular and
  nonrestrictive MP3 format to achieve super distribution of their works
  and reach new audiences. Many new business models are being created
  that do not rely upon the traditional property model, and the
  imposition of protection measures "required" by the traditional
  copyright industry interfere with the emerging models that rely upon
  super distribution

  Time Warner's (commonly mis-used) example that fair use would not
  permit someone to break into a book store to steal a book is a
  misleading and irrelevant example. If a person has already paid for
  the right to view an e-book or DVD when they purchased it, she is not
  breaking into a third-party's property in order to access it, as Time
  Warner's example asserts. Rather, she may need to break through a
  protection measure in order to view that e-book or DVD on her
  particular operating system. A person reverse engineering a DVD that
  she purchased (her property) is not at all analogous to the breaking
  and entering into a third-party's store to access the work - one is
  clearly fair use the other is clearly theft.

  Time Warner also points to the Content Scrambling System (CSS) used to
  prevent DVDs from playing on unsanctioned players. Time admits that
  the strategy for CSS protection is to restrict use and exercise
  control even after access is authorized: "Other technological
  measures, such as CSS, carry certain obligations to restrict copying
  and further distribution of content once access is authorized." (Time
  Warner Comment, page 3). But granting such absolute protection is
  dangerous and not within the ambit of copyright's objective. CSS and
  other schemes which attempt to grant copyright holders the right to
  dictate the terms of fair use to the public, hardly seem very fair or
  supportable by copyright law principles.

  Time also admits that DVDs are a unique medium and their introduction,
  "provided much information that could not be included in VHS tapes."
  (Time Warner Comment, page 4). Considering the uniqueness and
  unavailability of the works in other formats, an inability to
  circumvent DVDs to make fair use of them renders the privilege
  meaningless, despite the DMCA's explicit language and commitment to
  support fair use rights in an electronic environment. Time assures
  that no "proper uses" will be hampered, but what Time considers
  "proper" is not the same as what a federal judge would consider fair
  and thus legal. Granting the copyright industry the right to determine
  what uses are "proper" and therefore authorized, grants extremely
  broad and unprecedented rights over access and use of information.

  Sony's comment warns that any rulemaking exemption to the DMCA's
  prohibition against circumvention will jeopardize the US's obligations
  under the WIPO treaty. However, US copyright law provided for adequate
  protection for copyrighted works prior to its adoption of the WIPO
  treaty using traditional copyright infringement legal theories. In
  actuality, the US had granted among the strongest protection for
  intellectual property in the world prior to WIPO. Recognizing the need
  for additional exemptions will allow the US to maintain strong and
  adequate protection of IP globally, but lead the world in recognizing
  the need for balance and to protect free expression, fair use, and
  continue to fuel innovation.

  In summary, the Copyright Office should heed the advice of the library
  associations, the cryptographers, the non-proprietary software
  developers, academics, and the civil liberties groups and construe the
  DMCA narrowly to provide adequate protections for the interests (other
  than the copyright industry) represented in the copyright bargain.
  Therefore, all classes of works must be exempt from the general
  circumvention prohibition when the purpose for the circumvention is to
  engage in a lawful fair use of a work. The copyright holder's right of
  access must also be limited by a First Access Rule guided by the
  wisdom of copyright's traditional First Sale Rule. Copyright's design
  in a digital world must continue to balance the competing interests
  between authors, publishers, and the pubic fairly and in light of
  copyright's stated objectives to promote the progress of arts and
  useful sciences.

    Respectfully submitted,
    Robin D. Gross, Esq.
    Staff Attorney, Electronic Frontier Foundation

    _________________________________________________________________

                                Administrivia

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