EFFector Vol. 13, No. 9 Sep. 30, 2000 editor@eff.org

EFFector Vol. 13, No. 9 Sep. 30, 2000 [email protected]

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 157th ISSUE OF EFFECTOR (now with over 25,400 subscribers!):

* FCC Paves the Way for Requiring Anti-Copy Technology in Digital TV
* EFF Renews Its Call to Boycott the "HackSDMI Challenge"
* Oct. 5 "BayFF" Meeting Examines ICANN
* Stanford Law Professor Lawrence Lessig Joins EFF Board of
Directors
* Administrivia

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

FCC Paves the Way for Requiring Anti-Copy Technology in Digital TV

Hollywood Continues to Dismantle Fair Use Rights in Digital World

Electronic Frontier Foundation ALERT -- Sep. 30, 2000

Please redistribute to relevant forums, no later than Dec. 18, 2000.

The Federal Communications Commission (FCC) issued a ruling on Sep. 18
that allows Hollywood to require the manufacturers of digital VCRs,
high-definition televisions, cable set-top boxes, and related
equipment, to implement copy restriction technology into the devices.

Hollywood's latest attack on civil liberties limits the public's
ability to make fair use of digital programming by imposing
restrictive licensing schemes on the device manufacturers. Just as
they impose a CSS license on the makers of DVD players that forbids
any recording functionality to the consumer, Hollywood now wants to
impose such a scheme on digital TVs, VCRs and other viewing and
recording equipment.

The U.S. Supreme Court stated plainly in the Betamax case that
recording programs for later viewing in the privacy of the user's home
is a noncommercial use permitted by the fair use doctrine. By
inserting instructions into the digital programming stream that are
obeyed by the hardware, the studios are able to control the public's
ability to save or copy programming. Since the devices will only
permit the consumer to copy the content that the studios code as
copyable (not likely to be much, if anything), the public's fair use
rights would effectively be extinguished in the digital television
realm.

EFF submitted Sep. 7, 2000 comments to the FCC pursuant to its
original Notice of Proposed Rule Making:

http://www.eff.org/IP/Video/20000907_eff_comments_hdtv.html

FCC Sep. 18, 2000 Declaratory Ruling (& Further Notice of Proposed
Rule Making)
; INCLUDES INSTRUCTIONS ON HOW TO SUBMIT COMMENTS - ACT TODAY AND DO
SO! (Deadline: Nov. 15, 2000.):

http://www.eff.org/IP/Video/20000918_fcc_hdtv_rule.html

_________________________________________________________________

EFF Renews Its Call to Boycott the "HackSDMI Challenge"

Do Not Undermine Your Own Rights!

Electronic Frontier Foundation ALERT (revised) -- Sep. 29, 2000

Please redistribute to relevant forums, no later than Dec. 1, 2000.

Introduction

Preface

Several EFF staffers recently accepted an invitation to meet with
members of the Secure Digital Music Initiative (SDMI) to discuss
technical discrepancies between EFF's portrayal of SDMI-compliant
devices/SDMI's current specifications and to open a dialog about the
civil liberties concerns EFF has expressed regarding this technology.
EFF would like to thank the SDMI representatives for an informative
and thoughtful dialog exploring the technological and social issues
surrounding this attempt to create a secure environment for the
distribution of digital music.

Continuing the Boycott

The diligent efforts of SDMI to create a technology that secures
content while allowing some potential to make personal copies is
impressive. EFF, however, can not soften its stance against SDMI and
continues to encourage hackers to boycott the "Hack SDMI Challenge" on
the basis that the technology fundamentally restricts fair use, is
anti-competitive and ignores previous lessons learned by the software
industry.

Technical Background

SDMI is attempting to create a technical standard that will place a
permanent watermark on digital content, starting with music, that will
be used to strictly control its public use. At the core of SDMI's
specifications is the requirement that SDMI-protected content can
never exist in an unprotected state. Content containing an
SDMI-compliant watermark will even retain its protection in an analog
form, since the watermark is made part of the audio signal.

Under SDMI's specifications, content providers will have the power to
code their content with a set of usage rules that will govern how
consumers may use their music. These rules will then instruct the
SDMI-compliant device as to the number of times content may be
reproduced, if any.

Restricting Fair Use

SDMI compliance allows content providers to eliminate critical fair
use rights, such as excerpting portions of music files in high quality
audio and possessing multiple copies of music files that are not
disabled. A school orchestra director can be prevented from providing
students with musical excerpts through SDMI-compliant devices.
Journalists with such restrictions can also be kept from making
multiple copies for news stories. People who want to use content for
parody or satirical purposes can be silenced, not able to disseminate
their views through an SDMI-compliant architecture. Rap artists can
also be severely limited from reusing the material of other artists
without permission from the record companies. People can be kept from
making backup copies of purchased content. Also, SDMI compliance gives
content holders the ability to circumvent the "First Sale" doctrine:
the right to actually own instead of simply licensing purchased
content. Under SDMI specifications, content holders get to make
determinations related to all of these rights.

SDMI states that its technology allows for unlimited copies of
content. This statement is only true in a limited number of instances,
however. When you already own a CD and have a working copy of that CD
in your collection, an SDMI-compliant device will allow you to create
unlimited crippled copies (crippled in that they now have a watermark
and are copy restricted). If you download the music from the Internet
instead of buying the CD, though, the content provider has complete
discretion to limit the number of copies that can be made. While the
record companies, who own the majority of the content, could set this
number very high, that is quite unlikely!

What the good folks at SDMI do not seem to understand is that fair use
is a right, not a privilege. Requiring people to get permission from
content holders to criticize their work is an unreasonable (and we
would argue unconstitutional) burden on their ability to exercise
their free speech rights. Permitting unlimited analog copying is not
an adequate solution, in that restricting protected speech to lesser
quality technologies does not satisfy the First Amendment.
Furthermore, EFF fears that anyone who circumvents SDMI's copy
protection mechanisms or the digital rights management schemes
enforced by SDMI will be opening themselves up to a lawsuit under the
anti-circumvention provisions of the Digital Millennium Copyright Act
(DMCA).

The Anti-Competitive Nature of SDMI

If SDMI were merely an alternative music distribution scheme that
offered artists a choice of protecting their works, as SDMI portrays
itself, EFF would welcome it into the marketplace of ideas. However,
when over 90% of the world's music content holders are together
creating this standard, there is no room for legitimate competition.
Everyone from artists to hardware manufacturers to consumers will be
required to use SDMI standards if they want access to the vast
collection of materials controlled by the recording industry.

The creation of SDMI as an organization has also given content holders
a convenient scapegoat around which they can mandate public policy
while maintaining an illusion of fairness. SDMI's policy has been to
wash its hands of any potential abuse on the part of content holders.
SDMI claims to simply set up an architecture in which content holders
are later free to choose the usage rules. What they fail to point out
is that SDMI and the content providers are the same people. When they
step out from behind the thin curtain of SDMI, content providers will
set the rules by which the world's public must passively listen to
their music without the opportunity to speak back. Lessons from the
Past

The computer industry learned a decade ago that copy-protecting all
software was not an acceptable model for consumers. The software
industry has almost universally embraced open models of software
creation and distribution, like the open source movement. With
consumers already demonstrating their desire to own unrestricted
copies of their favorite music, one would think that the music
industry would take notice of the software industry's hard-earned
wisdom and put forth similar models of music distribution. Clearly,
some artists who are engaging in alternative models are already
receiving attention (and downloads!)

Don't Hack Away Your Rights!

EFF again urges anyone with the technical expertise to compete for the
"up to" $10,000 prize to refrain from doing so and to continue telling
SDMI--and your friends, relatives and colleagues--that you are
participating in this boycott and why.

If you are a hacker, reverse engineer, digital audio expert,
cryptographer or other targeted by SDMI's invitation, refrain from
giving SDMI free consulting on how to hack away at your rights.
Please:
* Refrain from participating in the "HackSDMI Challenge."
* Publicly say you are doing so (in your e-mail signature file, on
hacking, engineering and other relevant mailing lists, on your own
web page, and wherever else you deem appropriate).
* Write to SDMI ( [email protected] ) and tell them that you refuse to
help them undermine your own rights, and why.
* Urge colleagues to do likewise.
* Inform and encourage musicians to participate in the SDMF
challenge through CAFE ( http://www.eff.org/cafe ).
* Join EFF! ( http://www.eff.org/join )

If you are not a tech expert but are a user of digital music
technology, you too can play a role:
* Write to SDMI ( [email protected] ) and to your favorite MP3
equipment/software vendor(s) and tell them that you want to be
able to choose how you listen to your music.
* Express your concerns with distribution systems that lock you into
a single technology or music player.
* Tell them that you do not appreciate being considered a thief by
default.
* Pass this alert around to your friends. (Please only recirculate
to appropriate forums if sending to mailing lists, etc.)
* Join EFF! ( http://www.eff.org/join ).

If you are an independent artist, you can:
* Participate in CAFE and the SDMF initiative at
http://www.eff.org/cafe .
* Inform and encourage other artists to participate in CAFE and
SDMF.
* Release your material in MP3 and other open formats.
* Send your music to outlets that are dedicated to giving exposure
to artists using open formats such as Radio EFF
( http://www.eff.org/radioeff ).
* Tell SDMI ( [email protected] ) you oppose any attempts to force
manufacturers to disable support for non-DMAT music in an attempt
to herd new artists toward the RIAA oligopoly.
* Join EFF! ( http://www.eff.org/join ).

If you are a "signed" artist, you can really help:
* Participate in CAFE and the SDMF initiative at
http://www.eff.org/cafe .
* Inform and encourage other artists to participate in CAFE and
SDMF.
* Release your material in MP3 and other open formats, when possible
under your contract.
* Tell SDMI ( [email protected] ) you do not agree that protecting music
industry and artists' revenues is dependent on stripping everyone
of their rights.
* Tell your label you do not support SDMI or DMAT.
* Tell your fans (live, on your website, in lyrics, etc.) that you
do not believe they are all a bunch of pirates, and that they
should write to the labels and protest being treated like they are
all thieves by default.
* Contact us ( [email protected] ) about becoming more involved in speaking
out against the direction the industry is pushing the digital
content.
* Join EFF! ( http://www.eff.org/join )

For More Information:

EFF's Campaign for Audiovisual Free Expression (CAFE)

http://www.eff.org/cafe

The "HackSMDI" site:

http://www.hacksdmi.org

The SDMI homepage:

http://ww.sdmi.org

_________________________________________________________________

Oct. 5 "BayFF" Meeting Examines ICANN

Media Advisory

BayFF Explores Internet Naming Body

Barbara Simons, Emerson Tiller and Karl Auerbach Gear Up for ICANN Board
Elections

WHO: Electronic Frontier Foundation, with Barbara Simons, Emerson
Tiller and Karl Auerbach; plus intermission music provided by UKUSA of
VirtualRecordings.com
WHAT: "BayFF" Meeting on ICANN Elections
WHEN: Thursday, October 5, 2000, at 7:30PM
WHERE: Stanford Law School, room 290
Crown Quadrangle, Stanford University
559 Nathan Abbott Way
Stanford, CA 94305-8610 USA
+1 650 723 2465
(See DIRECTIONS below.)

In honor of its 10th Anniversary of defending civil liberties online,
EFF presents a series of monthly meetings to address important issues
where technology and policy collide. These meetings, entitled "BayFF,"
kicked off on July 10th and will continue throughout the year. The
upcoming BayFF will explore the global election to select five of the
nineteen directors of the Internet Corporation for Assigned Names and
Numbers (ICANN), a U.S. corporation contracted to manage the
Internet's address assignment. Candidates Barbara Simons, Emerson
Tiller and Karl Auerbach will discuss the issues in the election and
the concerns raised by monitoring groups over the manner in which it's
been organized. The election, which closes on October 10th, is the
first attempt to a hold a global election on the Internet.

Barbara Simons was ACM President from July 1998 until June 2000. ACM
is the oldest and largest scientific and educational computer society
in the world, with about 80,000 members internationally. Prior to
becoming ACM President, Simons founded and chaired ACM's U.S.
Technology Policy Committee (USACM), and the ACM Committee for
Scientific Freedom and Human Rights. Simons was elected Secretary of
the Council of Scientific Society Presidents (CSSP) in 1999, and she
has been on the CSSP Board since 1998. She has been a member of the
U.C. Berkeley Engineering Fund Board of Directors since 1998. Simons
is a Fellow of ACM and of the American Association for the Advancement
of Science.

Simons earned her Ph.D. in computer science from U.C. Berkeley; her
dissertation solved a major open problem in scheduling theory. She
became a Research Staff Member at IBM's San Jose Research Center (now
Almaden), where she did research on scheduling theory, compiler
optimization, and fault tolerant distributed computing. Simons
currently serves on the President's Export Council's Subcommittee on
Encryption, and she had been a member of the Information Technology
Working Group of the President's Council on the Year 2000 Conversion.

Emerson Tiller is a professor at the University of Texas at Austin
where he co-directs the Center for Business, Technology and Law. Dr.
Tiller researches, writes, and teaches about Internet issues,
including those relating to the ICANN and the Internet domain name
system. He has received grants to study Internet issues from the
National Academy of Science and the Society for Information
Management. He has published in the most prestigious academic journals
in his field, including the Yale Law Journal, the Columbia Law Review,
the Journal of Law and Economics and the Journal of Strategic
Information Systems.

As editor of the publication Internet Law and Business, Dr. Tiller
reviews, summarizes, and comments upon the major ICANN decisions
involving domain name disputes. He received his math and law degrees
from Indiana University, and his Ph.D. from Berkeley. Dr. Tiller is
also the founder of icannVote.com, a public information website
explaining ICANN issues and assisting in registration of ICANN
members.

Karl Auerbach is senior researcher in the Advanced Internet
Architecture group in the Office of the Chief Strategy Officer at
Cisco Systems. Mr. Auerbach is presently engaged in research projects
aimed at reducing the costs associated with installing, operating,
troubleshooting, and managing networks. His recent work has also
included real-time transport of high quality audio and video over the
net, content management, IP multicast, and quality of service. In
addition to his technical work, Mr. Auerbach has been an attorney in
California since 1978. He is currently a member of the Intellectual
Property Section of he California State Bar. Mr. Auerbach's work on
Internet technology started in the early 1970's. He has been a
long-time member of the Internet Engineering Task Force (IETF), has
founded both Epilogue Technology Corporation and Empirical Tools and
Technologies, Inc. and has been closely involved with several other
startups. He is the co-founder of the Boston Working Group and has
been involved in the issue of Internet governance for several years.

You can subscribe to receive future BayFF annoucements. To subscribe,
email [email protected] and put this in the text (not the subject
line): subscribe bayff.

The Electronic Frontier Foundation (http://www.eff.org) 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, 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.

For more information on ICANN

EFF ICANN/IANA/IAHC DNS Control Issues Archive:

http://www.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC

ICANN Web Site

http://www.icann.org

ICANNWatch Site

http://www.icannwatch.org

Contact:

John Marttila
Electronic Frontier Foundation
+1 415 436 9333 x104
[email protected]

Directions:

From San Francisco, N. Bay, upper S. Bay/Peninsula:

Take the US-101 South, towards San Jose.
Take the Embarcadero Rd./Oregon Expwy. exit.
Keep LEFT at the 1st fork in the ramp.
Keep LEFT at the 2nd fork in the ramp.
Keep RIGHT at the 3rd fork in the ramp.
Merge onto Oregon Exwy.
Stay straight to go onto Page Mill Rd.
Turn RIGHT onto El Camino Real/CA-82.
Turn LEFT onto Serra St.
Turn LEFT onto Campus Dr E.
Turn RIGHT onto Alvarado Row.
Turn LEFT onto Nathan Abbott Way.

From East Bay or Sacramento

Take US-880 South towards San Jose.
Take the CA-84 West/Decoto Rd. exit towards Dumbarton Br.
(about 20mi. south of Oakland)
Keep RIGHT at the fork in the ramp.
Merge onto CA-84 West and cross bridge
Turn LEFT onto Willow Rd./CA-114.
Take the US-101 South ramp towards San Jose.
Merge onto US-101 S.
Take the Embarcadero Rd./Oregon Expwy. exit.
Keep LEFT at the 1st fork in the ramp.
Keep LEFT at the 2nd fork in the ramp.
Keep RIGHT at the 3rd fork in the ramp.
Merge onto Oregon Exwy.
Stay straight to go onto Page Mill Rd.
Turn RIGHT onto El Camino Real/CA-82.
Turn LEFT onto Serra St.
Turn LEFT onto Campus Dr E.
Turn RIGHT onto Alvarado Row.
Turn LEFT onto Nathan Abbott Way.

From lower S. Bay/Peninsula, San Jose, Monterrey

Take US-101 North towards San Francisco.
Take the Embarcadero Rd./Oregon Expwy. exit.
Keep RIGHT at the fork in the ramp.
Merge onto Oregon Exwy.
Stay straight to go onto Page Mill Rd.
Turn RIGHT onto El Camino Real/CA-82.
Turn LEFT onto Serra St.
Turn LEFT onto Campus Dr E.
Turn RIGHT onto Alvarado Row.
Turn LEFT onto Nathan Abbott Way.

Via public transit:

[Not yet available; we may be able to get directions and post them at
this event's entry in the BayFF event list at http://www.eff.org/bayff
if/when available.]

_________________________________________________________________

Stanford Law Professor Lawrence Lessig Joins EFF Board of Directors

EFF Press Release -- Sep. 21, 2000

Constitutional Scholar Adds Prestige & Expertise to Leading Cyber-Rights
Group

The Electronic Frontier Foundation (EFF) is delighted to announce
eminent legal scholar Lawrence (Larry) Lessig's acceptance of our
invitation to join the EFF Board of Directors.

Lessig is a Professor of Law at the Stanford Law School. He was the
Berkman Professor of Law at Harvard Law School. From 1991 to 1997, he
was a professor at the University of Chicago Law School. He graduated
from Yale Law School in 1989, and then clerked for Judge Richard
Posner of the 7th Circuit Court of Appeals, and Justice Antonin Scalia
on the Supreme Court. Lessig teaches and writes in the areas of
constitutional law, contracts, comparative constitutional law, and the
law of cyberspace. His book, "Code, and Other Laws of Cyberspace," is
published by Basic Books. In 1999-2000, he was a fellow at the
Wissenschaftskolleg zu Berlin, Germany. Lessig is a monthly columnist
for "The Industry Standard" magazine, a boardmember of the Red Hat
Center for Open Source, and a member of the National Commission on
Society, Culture and Community (U. Penn.) This year he was named one
of the "100 Most Influential Lawyers" by the National Law Journal, and
among the "25 Top eBiz Leaders" by Businessweek.

"I have been a long time admirer of this organization, the first to
understand that 'architecture is politics." I am extremely happy to
join its board," Lessig said regarding his coming on to the EFF Board.

EFF Board Chairperson Brad Templeton said, "the EFF exists to try to
understand civil rights issues as the world moves online. We looked
around and doubt there is anybody studying and writing about this
topic at a level beyond that of Larry Lessig, so naturally we wanted
him to join."

Lessig is a prolific speaker and writer on Internet-related legal and
societal issues, paritcularly censorship, intellectual property,
ethics, jurisdiction and sovereignty, and open platforms vs.
monopolization. He has been a long-time and well-known participant in
online legal forums, such as CYBERIA-L and Lexis Counsel Connect, and
has been highly influential in the continual debate surrounding the
intersection of law and technology, both in informal public
discussions and in a long line of law review articles and other
publications. For more information, see his home page at:

http://cyber.law.harvard.edu/lessig.html

EFF Executive Director Shari Steele expressed excitement at Lessig's
joining the EFF Board. "Larry Lessig is indisputably one of the most
respected attorneys working on Internet and computer issues. We are so
excited to have him working with us as a member of EFF's board of
directors. His understanding of how the First Amendment translates
into a networked environment will be invaluable to our work protecting
civil liberties in cyberspace."

EFF's other Boardmembers are entrepreneur Brad Templeton (Chair),
writer John Perry Barlow (Vice-Chair and Co-Founder), entrepreneur
John Gilmore (Co-Founder), U. Penn. professor David Farber, investment
banker Giles McNamee, and U.C. Berkeley professor Pamela Samuelson.

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. The organization remains focused on civil liberties and
civil responsibilities in cyberspace and continues to offer legal
advice, referrals, and a large archive of current and historical
online civil liberties information.

Founded in 1990, the Electronic Frontier Foundation (www.eff.org) is a
public-interest organization that actively encourages and challenges
industry and government to support free expression, privacy, and
openness in the information society. EFF is a member-supported
nonprofit organization and maintains one of the most-linked-to Web
sites in the world.

For more information on the Electronic Frontier Foundation see:

http://www.eff.org

For information about joining us in our fight to protect your rights,
see:

http://www.eff.org/membership

_________________________________________________________________

Administrivia

EFFector is published by:

The Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco CA 94103-4832 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax) http://www.eff.org

Editor: Stanton McCandlish, Online Communications Director/Webmaster
([email protected])

Membership & donations: [email protected]
General EFF, legal, policy or online resources queries: [email protected]

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_________________________________________________________________