EFFector Vol. 14, No. 1 Feb. 7, 2001 editor@eff.org

EFFector Vol. 14, No. 1 Feb. 7, 2001 [email protected]

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 161st ISSUE OF EFFECTOR (now with over 26,300 subscribers!):

* EFF & Liberty Project defend anonymous poster against third-party
identity supoenas to ISPs
* EFF & 2600 file appeal of DMCA injunction in NY DVD/DeCSS lawsuit
* Diverse groups ask appellate court to overturn NY DVD/DeCSS
injunction
* Administrivia

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

EFF & Liberty Project defend anonymous poster against third-party identity
supoenas to ISPs

Electronic Frontier Foundation Press Release -- Feb. 7, 2001

Free Speech Advocates Join Forces to Protect Anonymous Speech in Cyberspace

The Electronic Frontier Foundation and The Liberty Project Request Court
Protection of Internet Authors' Identities

For Immediate Release

Contact:

Katina Bishop - Public Policy Dir.
Electronic Frontier Foundation
+1 202 487 0420
[email protected]

Nicole Berner or Julie Carpenter
Jenner & Block in Washington D.C.
for the Liberty Project
+1 202 639 2000

San Francisco -- In a case involving both free speech and privacy
rights online, the Electronic Frontier Foundation (EFF) and The
Liberty Project asked a California court today to quash a subpoena
issued by Rural/Metro Corp. seeking to reveal the identities of two
people who posted comments allegedly critical of Rural/Metro on a
Yahoo! message board. The groups argue in their brief that
Rural/Metro's attempt to reveal the identities of the individuals,
known collectively as the Does, will intimidate critics and
inappropriately silence constitutionally protected anonymous speech.

Rural/Metro, a provider of contract fire and ambulance services
headquartered in Arizona, served the subpoena on Yahoo! Inc. seeking
the identity of four speakers who posted anonymous messages on the
Yahoo!'s message board devoted to discussion of Rural/Metro. Without
offering a single message as evidence -- or, indeed, a single fact to
support its allegations -- Rural/Metro alleged in its complaint that
Does posted "false, misleading and/or deceptive information" about
Rural/Metro, that Does may possibly sometime in the future reveal
unspecified trade secrets belonging to Rural/Metro, and that Does may
be current or former employees.

EFF and the Liberty Project have agreed to represent two of the Does
who contacted them about the subpoena pro bono. In the brief filed
today, the groups argue that the Court should adopt the same test
currently used to determine whether to compel identification of
anonymous sources in libel litigation. Under that test, the Court
would first have to determine that the plaintiff, in this case
Rural/Metro, has a valid claim, and then balance the harm to the
anonymous speakers against the plaintiff's need to discover the
identity of the speaker.

"Anonymous speech has been protected in this country since the writing
of the Federalist Papers. If the courts do not step in to protect this
cherished right in cyberspace, we will lose it," said Lauren Gelman,
EFF's director of public policy. EFF legal director Cindy Cohn added,
"Powerful entities are learning that they can use the courts to
silence their critics. When individuals choose to participate in a
public debate anonymously, they should not have to worry that their
identities will be divulged to anyone who doesn't like what they have
to say."

According to Nicole Berner, counsel for the Liberty Project, "many
people converse on the Internet anonymously unaware that they have
become the subject of a subpoena seeking their identity before it is
too late to quash the subpoena. Our hope is that the Court in this
case will set a standard according to which Internet service providers
and others will be able to determine when it is and isn't appropriate
to disclose information that may lead to the identity of an anonymous
speaker."

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, 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:
http://www.eff.org
EFF sees its action in this case as part of its larger mission to
protect speech online and recently filed two other briefs on behalf of
anonymous speakers.

The Liberty Project is a nonprofit organization dedicated to the
preservation of civil liberties. Heeding Thomas Jefferson's warning
that "the natural progress of things is for liberty to yield and
government to gain ground," the Liberty Project was founded to promote
individual liberty against encroachment by all levels of government.
The organization espouses vigilance over regulation of all kinds, as
well as restriction of individual liberties, especially the guarantee
of free speech upon which all other liberties depend. In addition to
its educational work, the Liberty Project offers legal assistance to
those whose civil liberties are jeopardized.

Plaintiff Rural/Metro Corp. is represented by Hartford Brown of the
law firm Seyfarth Shaw, located in San Francisco, CA, (415) 397 2823.

Full text of Defendants' Motion to Quash Third-Party Subpoena:
http://www.eff.org/Legal/Cases/RMC_v_Does/
20010202_does_quash_motion.html

For more information about online anonymity see:
http://www.eff.org/Privacy/Anonymity

For more information about online free expression:
http://www.eff.org/Censorship

_________________________________________________________________

EFF & 2600 file appeal of DMCA injunction in NY DVD/DeCSS lawsuit

EFF Press Relase -- Jan. 19, 2001

Publisher Appeals Injunction Against News Story

EFF & 2600 File Strong Appeal in DeCSS/DVD Case

For Immediate Release

Contact:

Robin Gross, EFF Staff Attorney for Intellectual Property
[email protected]

NEW YORK: On behalf of a magazine and its editor, Internet civil
liberties group the Electronic Frontier Foundation (EFF) today asked a
federal appeals court to overturn a lower court's interpretation of
the Digital Millennium Copyright Act (DMCA) as creating an
unconstitutional restraint on free expression.

EFF appealed a lower court's injunction against 2600 Magazine
preventing it from publishing and linking to information about how
DVDs work as part of its news coverage of the debate surrounding the
encryption applied to DVDs. The banned information is a computer
program called DeCSS that decrypts the data contained on DVDs.

In January 2000 eight major motion picture studios sued the magazine
and its publisher under the "anti-circumvention" rules of the DMCA.
The District Court in the Southern District of New York decided that
those rules prevent 2600 Magazine from publishing or even linking to
DeCSS because it can be used to circumvent the encryption placed on
DVDs. CSS is designed to prevent copyright infringement, but the Court
held that publishing DeCSS was illegal even when no infringement had
occurred and despite the fact that it was being used for legitimate,
even constitutionally protected purposes.

Emmanuel Goldstein, Editor-in-Chief of 2600 Magazine said, "The
anti-circumvention provisions of the DMCA threaten the media's ability
to point the public to truthful information. The First Amendment has
always protected such publication."

EFF argues that the District Court did "great violence" to both the
First Amendment and the Copyright Clause to the U.S. Constitution when
it censored the magazine's speech. EFF Legal Director Cindy Cohn said,
"the District Court decision puts the anti-circumvention rules of the
DMCA on a collision course with the Constitution. We are asking the
2nd Circuit to prevent this by interpreting the statute consistent
with the First Amendment and settled Copyright law."

The appeal argues, first, that the District Court erred in failing to
apply the strict First Amendment scrutiny that is traditionally
required before forcing news magazines to take down news stories.
Second, it argues that because DeCSS is required in order for people
to make fair use of movies, the injunction preventing its publication
by 2600 Magazine is unconstitutional because it prevents people from
exercising their constitutional rights with regard to DVDs. Examples
of such fair uses include movie critics and academics who wish to use
snippets of movies for criticism and parody, video researchers who
seek to catalogue images in movies for digital searching,
cryptographers who wish to make scientific study of the encryption on
DVDs and reverse engineers who wish to make competing DVD players.

The appeal further argues that the justification that the District
Court used to deny full constitutional protection to the magazine, --
that the computer code may be "functional" when used by others -- is
not a legitimate basis on which to lessen First Amendment protection
for those who publish it. "Courts cannot silence the messenger," Cohn
noted, "simply because others might misuse the message."

DeCSS was authored by a Norwegian teenager, Jon Johanson, as part of
an effort to develop an open source DVD player for the Linux operating
system that would compete with the studios' monopoly on DVD players.

Next Friday, numerous amici briefs supporting 2600 Magazine's right to
publish and link to this information will be filed with the 2nd
Circuit, including briefs from the ACLU, the Digital Future Coalition,
librarians, journalists, computer scientists, law professors,
educators, and crytographers. The studios' reply brief is due on
February 19 and oral argument before the 2nd Circuit is expected in
April.

EFF is defending individual rights in the DVD cases as part of its
Campaign for Audiovisual Free Expression (CAFE). CAFE was launched in
June 1999 to address complex social and legal issues raised by new
technological measures for protecting intellectual property.

For the 2600/EFF appeal brief to the Second Circuit, see:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010119_ny_eff_appeal_br
ief.html

For complete information on EFF's DVD 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
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.

Background

Motion Picture Associatio of America (MPAA) members, beginning at the
tail end of 1999, have filed suit under that controverial Digital
Millennium Copyright Act (DMCA) to prevent the online availability of
a free program called DeCSS which cracks the extremely weak encryption
(CSS) "protecting" commercial DVDs from being played on computer DVD
drives that run under operating systems that are not "approved" by the
movie industry, including Linux. The MPAA has alleged that DeCSS is a
piracy tool, even though DVDs can be easily pirated without DeCSS, and
DeCSS is required for Linux users to be able to play their legally
purchased and owned DVDs on their own computers. The case at hand,
officially Universal v. Remeirdes named several defendants, including
2600, for posting or even linking to DeCSS, alleging violation of DMCA
provisions against distribution of copyright infringement tools. A
similar case in Connecticut was also filed, and a very different case
(based on state trade secret law) was filed by MPAA members (some the
same as in the NY and CT cases, others different) against hundreds of
plaintiffs. MPAA members even went to far as to have Norwegian law
enforcement authorities (probably wrongfully) arrest the 16-year-old
co-author of DeCSS, on more far-fetched copyright infringement-related
accusations.

EFF believes that the DMCA harms - nearly eliminates - all of the
public's fair use rights, and makes criminals of people doing
perfectly legitimate things. Our Campaign for Audiovisual Free
Expression (CAFE) advances the following principles in response to the
DMCA and related intellectual property holder "land grabs" against
your rights:
1. Piracy of an artist's work is illegal. Fair use is not.
2. We have the right to hear, speak, learn, sing, think, watch, and
be heard.
3. No one should assume by default that we're criminals, and the
technology we use shouldn't do so either.
4. We have a right to use technology to shift time & space (including
using a media player of choice, when we want, and where we want,
with content we legally have access to.)

These facts and the rights the uphold are already a long-standing
feature of American intellectual property law. The new DMCA law turns
most of it on its head, and allows monied industries to attack
underfunded individuals, publishers and organizations with near
impunity, for doing what they have a right to do in the first place.

Founded in 1990, The Electronic Frontier Foundation (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
Websites in the world.

For the 2600/EFF appeal brief to the Second Circuit, see:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010119_ny_eff_appeal_br
ief.html

For complete information on EFF's DVD cases, see:
http://www.eff.org/IP/Video

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

_________________________________________________________________

Diverse groups ask appellate court to overturn NY DVD/DeCSS injunction

EFF Press Release -- Jan. 26, 2001

Diverse Groups Unite to Defend Freedom of Expression Against DMCA

EFF/2600 Magazine Receive Wide Public Support in DeCSS Appeal

For Immediate Release

Contact:

Robin Gross, EFF Staff Attorney for Intellectual Property
+1 415 863 5459
[email protected]

NEW YORK: Eight Amici or "friend of the court" briefs were filed
today in support of the Electronic Frontier Foundation's appeal of an
injunction against 2600 Magazine, which banned the media site from
publishing and linking to information under the Digital Millennium
Copyright Act (DMCA) last August.

Warning the 2nd Circuit Court of Appeals of the danger to free
expression posed by the DMCA, diverse groups including the American
Civil Liberties Union, Association for Computing Machinery Law
Committee, American Library Association and others asked the appellate
court to overturn a lower court's ruling. Last year, a district court
in New York barred 2600 Magazine from publishing or linking to DeCSS,
the computer code that was at the heart of a controversy the magazine
was covering. Other groups filing briefs with the appellate court
include journalists, law professors, educators, cryptographers,
computer programmers and academics -- all warning the appellate court
of the impingement upon First Amendment freedoms that result from the
lower court's dangerous interpretation of the DMCA's
anti-circumvention provisions and broad elimination of fair use
rights.

Stanford Law professor Lawrence Lessig, who co-sponsored an amicus
brief with NYU's Yochai Benkler, explained the harm to freedom of
expression posed by the lower court's broad granting of rights to the
movie studios under the DMCA. "The First Amendment limits the scope
of copyright. It should also limit the scope of code that protects
copyright. That is the core issue in this case," Lessig said.

A sponsor of the computer programmers' brief, noted Princeton
University computer science professor Edward Felten, stated, "the
lower court's interpretation of the DMCA would effectively shut down
research in some areas of computer security, by banning the
publication of research results in those areas. Ironically, it has
already prevented me from publishing research results that could be
used to strengthen the protection of copyrighted works," explained the
scientist who recently cracked RIAA's encryption scheme for music, the
Secure Digital Music Initiative (SDMI).

Speaking on behalf of the nation's librarians, Miriam Nisbet of the
American Library Association stated, "the lower court's decision
seriously harms the public's ability to make legitimate, fair use of
digital works. As the founders of our country and Constitution
recognized, free speech and fair use are critical components of a
democracy."

According to EFF's Legal Director Cindy Cohn, "the combination of a
broad alliance of amici briefs, each targeting a specific issue and
pointing out the dangers and flaws in the lower court's ruling,
presents a powerful argument that the public's rights have been
trampled in a variety of ways by the lower court's careless handling
of civil liberties under the DMCA."

On January 19, 2001 EFF and 2600 Magazine filed their appeal brief
with the 2nd Circuit, requesting the lower court's ban be lifted and
the DMCAs anti-circumvention provisions be overturned on First
Amendment grounds. The movie studios must file their reply brief by
February 19th, and oral arguments are expected before the 2nd Circuit
in April.

EFF is defending individual rights in the DVD cases as part of our
Campaign for Audiovisual Free Expression (CAFE). CAFE was launched in
June 1999 to address complex social and legal issues raised by new
technological measures for protecting intellectual property.

Read the Amici Briefs Supporting EFF's Appeal of the Injunction Against
2600 Magazine:

Amicus Brief Sponsors: Libraries & public interest groups -- American
Civil Liberties Union (ACLU),
Digital Future Coalition (DFC), American Library Association (ALA),
American Research Libraries (ARL), Music Library Association (MLA)

Issues Raised: Dangerous First Amendment implications in district
court's ban on linking and publishing information on information about
DVD copy restrictions. The lower court's interpretation of the DMCA
broadly eliminates the public's fair use rights through its banning of
fair use tools.

Brief Author: Ann Beeson of ACLU

Available from
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_aclu_pressrel.h
tml (ACLU press release; includes link to PDF file of brief).

Amicus Brief Sponsors: Journalists and publishers -- Online News
Association, Reporters' Committee for Freedom of the Press, Newspaper
Association of America, Student Press Law Center, Wired, Pew Center on
the States, Silha Center for Media Ethics and Law, College of
Communications - CSU, Fullerton

Issues Raised: The chilling effect the district court's ban on linking
to DeCSS has had on the press' ability to report truthful information
of important public concern. Holding media liable for readers'
possible future illegal acts, as the lower has done, does great damage
to freedom of press and expression.

Brief Authors: David Greene of First Amendment Project and Jane
Kirtley

Available from
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_journpub_amicus
.html

Amicus Brief Sponsor: ACM (Association for Computing Machinery) Law
Committee

Issues Raised: The lower court's elimination of traditional reverse
engineering rights under the DMCA imperils science, innovation, and
free expression.

Brief Authors: ACM Law Committee Chair Andrew Grosso with Eddan Katz

Available from
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_acmlc_amicus.ht
ml

Amicus Brief Sponsors and Authors: Noted law professors Lawrence
Lessig of Stanford and Yochai Benkler of NYU

Issues Raised: The lower court's narrow interpretation of the DMCA
cannot withstand constitutional scrutiny under the First Amendment.
Congress effort to control DeCSS is actually an unconstitutional
effort to control speech.

Available from
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_2profs_amicus.h
tml

Amicus Brief Sponsors: Numerous expert law professors -- Keith Aoki,
Ann Bartow, Paul Schiff Berman, Stuart Biegel, Thomas F. Blackwell,
James Boyle, Dan L. Burk, Julie E. Cohen, Thomas F. Cotter, Rod Dixon,
Eric B. Easton, Michael M. Epstein, Christine Haight Farley, Susanna
Frederick Fischer, William W. Fisher III, A. Michael Froomkin, Laura
N. Gasaway, Llewellyn Joseph Gibbons, Laurence R. Helfer, Peter Jaszi,
Dennis S. Karjala, Raymond Shih Ray Ku, Mary LaFrance, Michael Landau,
David Lange, Mark A. Lemley, Joseph P. Liu, Lydia Pallas Loren,
Michael J. Madison, Charles R. McManis, Michael J. Meurer, Eben
Moglen, Craig Allen Nard, Ruth Gana Okediji, L. Ray Patterson, Mark R.
Patterson, Malla Pollack, David G. Post, Margaret Jane Radin, J.H.
Reichman, David A. Rice, Michael L. Rustad, David E. Sorkin, John R.
Thomas, Sarah K. Wiant, Jonathan L. Zittrain

Issues Raised: DMCA is unconstitutional because Congress went beyond
its power in enacting the DMCA, which has also placed restrictions
upon the First Amendment that are too great to withstand
constitutional scrutiny.

Brief Author: Copyright Law Professor Julie Cohen of Georgetown
University

Available at
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_lawprofs_amicus
.html

Amicus Brief Sponsors: Various leading computer programmers &
academics -- Dr. Harold (Hal) Abelson, Dr. Andrew W. Appel, Dr. Dan
Boneh, Dr. Edward W. Felten, Dr. Robert Harper, Andy Hertzfeld, Dr.
Brian Kernighan, Dr. Marvin Minsky, Dr. James Morris, Dr. P.J.
Plauger, Dr. John C. Reynolds, Dr. Ronald Rivest, Dr. Avi Rubin, Dr.
Barbara Simons, Dr. Eugene H. Spafford, Richard Stallman, and Dr.
David S. Touretzky

Issues Raised: Computer source code is creative expression worthy of
full First Amendment protection and the lower court erred greatly by
creating a new category of illegal speech.

Brief Author: James Tyre, Esq.

Available at
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_progacad_amicus
.html

Amicus Brief Sponsors: Numerous noted cryptographers -- Dr. Bruce
Schneier, Dr. Steven M. Bellovin, Dr. Matt Blaze, Dr. David Wagner,
Dr. Dan Boneh, Dr. Ian Goldberg, Dave Del Torto, Frank Andrew Steven.

Issues Raised: The lower court's ruling threatens the important
science of cryptography, which relies upon an open exchange of
information.

Brief Author: Jennifer Granick of Stanford Law School's Center for
Internet and Society

Available at
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_crypto_amicus.h
tml

Brief Sponsors: Educators who rely on fair use rights --
Dr. Siva Vaidhyanathan, Mary Wallace Davidson, Ernest Miller,
Christina Olson Spiesel

Issues Raised: Impingement upon the educational uses of intellectual
property that results from the lower court's elimination of fair use
rights under its ruling.

Brief Authors: Edward Cavazos and Gavino Morin from Cavazos, Morin,
Langenkamp & Ferraro LLP

Available at
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_edu_amicus.html

For the EFF/2600 Magazine appeal brief to the Second Circuit, see:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010119_ny_eff_appeal_bri
ef.html

For complete information on EFF's DVD cases, see:
http://www.eff.org/IP/Video

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

Background

Motion Picture Association of America (MPAA) members, beginning at the
tail end of 1999, filed suit under the controversial Digital
Millennium Copyright Act (DMCA) to prevent the online availability of
a free program called DeCSS which cracks the extremely weak encryption
(CSS) "protecting" commercial DVDs from being played on computer DVD
drives that run under operating systems that are not "approved" by the
movie industry, including Linux. The MPAA has alleged that DeCSS is a
piracy tool, even though DVDs can be easily pirated without DeCSS, and
DeCSS is required for Linux users to be able to play their legally
purchased and owned DVDs on their own computers. The case at hand,
officially Universal v. Reimerdes named several defendants, including
2600 Magazine, for posting or even linking to DeCSS, alleging
violation of DMCA provisions against distribution of copyright
infringement tools. A similar case in Connecticut was also filed, and
a very different case (based on state trade secret law) was filed by
MPAA members (some the same as in the NY and CT cases, others
different) against hundreds of plaintiffs, in California. MPAA members
even went so far as to have Norwegian law enforcement authorities
(probably wrongfully) arrest the 16-year-old co-author of DeCSS, on
more far-fetched copyright infringement-related accusations.

EFF believes that the DMCA harms - nearly eliminates - all of the
public's fair use rights, and makes criminals of people doing
perfectly legitimate things. Our Campaign for Audiovisual Free
Expression (CAFE) advances the following principles in response to the
DMCA and related intellectual property holder "land grabs" against
your rights:
1. Piracy of an artist's work is illegal. Fair use is not.
2. We have the right to hear, speak, learn, sing, think, watch, and
be heard.
3. No one should assume by default that we're criminals, and the
technology we use shouldn't do so either.
4. We have a right to use technology to shift time & space (including
using a media player of choice, when we want, and where we want,
with content we legally have access to.)

These facts and the rights they uphold are already a long-standing
feature of American intellectual property law. The new DMCA law turns
most of it on its head, and allows moneyed industries to attack
underfunded individuals, publishers and organizations with near
impunity, for doing what they have a right to do in the first place.

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, 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.

_________________________________________________________________

Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
http://www.eff.org

Editor: Stanton McCandlish, EFF Advocacy Director/Webmaster
([email protected])

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

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