EFFector Vol. 15, No. 7, March 8, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 206th Issue of EFFector:
* ALERT: Oppose SSSCA; Support Intel's Bravery
* Judge Ponders Jurisdiction in Russian eBook Formatter Case
* Court Sets Jury Trial in Morpheus Peer-to-Peer Software Case
* Meet Up With EFF Staff and Friends at South by Southwest on Monday,
March 11
* Administrivia
For more information on EFF activities & alerts: http://www.eff.org/
To join EFF or make an additional donation:
http://www.eff.org/support/
EFF is a member-supported nonprofit. Please sign up as a member today!
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ALERT: OPPOSE SSSCA; SUPPORT INTEL'S BRAVERY
A BAD LAW AND A SNEAKY PROCESS
Electronic Frontier Foundation ACTION ALERT
(Issued: Friday, March 8, 2002 / Expires: Friday, March 22, 2002.)
INTRODUCTION:
When Senator Fritz Hollings (D-SC) held his hearings last week, he
thought he'd be setting the stage for slipping the Security Systems
Standards and Certification Act (SSSCA) back onto the legislative fast
track. The SSSCA was the bill that would have given Hollywood a veto on
the design of new technologies in order to "secure" copyrighted
material. The far-reaching bill would have crippled the American
technology industry in response to hysterical entertainment execs,
flushing away consumer rights and dumping innovation down the same
drain.
Senator Hollings' idea was to bring a bunch of Hollywood executives
together with technology industry execs to show that all the players
agreed with Hollings' plan to implement a mini-SSSCA that gives
Congress control over the specifications for all digital video
technologies.
What he got instead was a gutsy speech from Intel co-founder Leslie
Vadasz, who told Congress that his industry shouldn't be treated like a
munition. Vadasz was the sole voice of reason in those hearings, saying
things that were patently obvious to anyone with a smidge of tech
know-how, but his words provoked a torrent of vitriol from Hollings and
his crew of studio heads, who hung Vadasz out for the press as a thief
who represents some shadowy technologists' conspiracy to steal business
out from underneath the entertainment industry.
Vadasz was the only technology industry representative with the
intelligence and integrity to speak up on behalf of the public interest
and consumer and business freedom. Civil liberties organizations and
the general public were definitely not welcome at Senator Hollings'
rights-management jamboree.
With Congress greatly influenced by Hollywood's financial clout, our
only hope of seeing justice served and our interests represented is
through brave technology industry execs like Leslie Vadasz. We're
writing to him on behalf of the EFF to let him know that he's not alone
in this fight, but he needs to hear it from Intel customers, too.
WHAT YOU CAN DO NOW:
* Send Intel Executive Vice-President Leslie Vadasz a letter letting
him know that you're glad that *someone* finally stood up to the
entertainment industry. Let him know that you're behind him all the
way, tell him how many Intel-powered products you've bought in the
past couple years (not just chips -- Intel's also behind Xircom
networking gear, consumer electronics, and educational toys), and
what your plans are for the future.
* If you're still fired up, save that letter as a template and make
tailored versions of it for the CEOs of your other favorite
hardware, electronics and software vendors. Tell them that you're a
happy customer who wants to stay that way. Tell them that your
wallet only opens for the pure of heart, that you're only buying
products from companies that represent your interests in Congress
and in back-room meetings with the entertainment industry.
* Contact your legislators about this issue - urge them to oppose the
SSSCA and similar legislation. For information on how to contact
your legislators and other government officials, see EFF's
"Contacting Congress and Other Policymakers" guide at:
http://www.eff.org/congress.html
* Join EFF! For membership information see:
http://www.eff.org/support/
SAMPLE LETTER:
Here's the template that you can use as to send your thank-you notes to
Intel. Feel free to crib from it, or to improvise.
Dear Mr. Vadasz,
I am writing today to applaud your bravery at the hearings before
the Senate Commerce Committee last week in DC. It is heartening to
see an innovative technology company standing up for its customers
in the face the over-reaching demands of the entertainment
industry. Thank you for fighting the entertainment industry's
attempts to undermine our fair use rights and harm our economy by
hobbling your industry with burdensome, nonsensical regulations
that protect their bottom line at the expense of your own.
[Insert your own history with Intel here, for example:
I'm not a big corporate customer with a million Intel chips in my
data center, but I am a loyal consumer whose laptop and desktop are
both Intel Inside, whose last six computers have been powered by
your chips. My 802.11 card comes from Xircom, another Intel
company, and I imagine that as the years go by and you folks keep
on speeding up your processors that I'll keep on buying newer,
fancier machines that grant me access to an ever-more bountiful
harvest of new software, services, communities and information.]
Please keep up the good work -- don't let Hollywood take away your
right to innovate and my right to use my equipment as I see fit.
Sincerely,
[Your name;
include full address for maximum effectiveness]
WHO TO CONTACT:
Leslie Vadasz
Executive Vice-President
Intel Corp.
2200 Mission College Blvd.
Santa Clara CA 95052
c/o tom.marchok@intel.com
ACTIVISTS AROUND THE WORLD
This alert is primarily for U.S. residents. However, this issue is of
importance globally, so keep an eye out in your own jurisdiction for
related matters you can act on. Many jurisdictions around the world are
considering legislation similar to the U.S. DMCA and SSSCA.
BACKGROUND:
SAVING THE ENTERTAINMENT INDUSTRY FROM ITSELF -- AGAIN
Technologists have always saved the entertainment industry from itself.
From Marconi's telegrapher-reviled radio to Jack Valenti's campaign
against the VCR, the entertainment industry has always fought to keep
new technologies out of the marketplace. Again and again, new
technologies have generated fresh millions for the labels and studios
and publishers, and again and again, they've come back to bite the byte
that feeds them, blustering in front of lawmakers for the right to
control what technologists can build in the privacy of their own
garages.
But this time, they've gone too far. The movie studios have cooked up a
Congressional fire-drill whose objective is nothing less than total
control over the computer and electronics industry. Senator Hollings'
stalled one-law-to-rule-them all, the reviled SSSCA, is still lurking
in the wings. In the meantime, the entertainment industry is intent on
sneaking the SSSCA past Congress with a series of technology-specific
"mini-SSSCAs."
Their opening salvo is a seemingly innocuous pitch to "protect" digital
TV signals (coming to every TV near you by 2006, if the FCC gets its
way) by legislating the specifications for TVs, VCRs, PVRs and other
devices that sit between your antenna/cable and your eyeballs.
These specifications will allow studios to control the way you use
content, on the equipment you've bought and paid for. Studios are
seeking the power to specify whether you can record their programs, how
long those recordings will be viewable and whether you can make a copy
of the recordings. In order for this plan to work, "non-compliant"
technology, whether software, hardware, or otherwise, will have to be
swept off the market. SSSCA redux.
Never mind that such a scheme will advantage foreign manufacturers --
who will remain free to build "noncompliant" products that do more and
cost less -- in a down economy where U.S. electronics, software and
computer companies are fighting for their lives. Never mind that this
will inevitably slow the pace of innovation and increase costs for
consumers. Never mind that such measures are unduly restrictive and
defeat fair uses, limiting your ability to invent new uses for your
electronics. (Who'd have imagined the fantastic capacity for
grandmothers to use VCRs to create family histories of appearances on
broadcast news programs?)
INTEL STEPS FORWARD
Leslie Vadasz, one of the founders of Intel, had the chips to show up
at Senator Fritz Holling's hearings last week and let Congress know
that Intel, an Amercian company that pours $13.5 billion dollars into
the U.S. economy every year, wants the freedom to independently
negotiate the specifications for its equipment with the studios,
without Congressional intervention.
This attitude is something we need to encourage! Senator Hollings
conducted his hearings as a private discussion between the studios and
the gadget companies, without any representation from consumers or even
civil liberties organizations. The closest thing we have to an advocate
in these critical proceedings are the electronics, computer and
software companies.
EFF has the credibility to catch the ear of some of the key players in
the technology world, and we're making sure that they know that we're
behind them on this.
But we can't do it alone: You're their customers, and it's time you let
them know that we don't want your rights managed out of existence by
the MPAA, RIAA and other Hollywood lobbies, with their army of
attack-lawyers.
CAMPAIGN FOR AUDIOVISUAL FREE EXPRESSION:
This drive to contact Intel about their position on SSSCA is part of a
larger campaign to highlight intellectual property industry assaults
against the public's fair use rights, and what you can do about it.
Check the EFF Campaign for Audivisual Free Expression (CAFE) website
regularly for additional alerts and news:
http://www.eff.org/cafe/
LINKS:
EFF Media Advisory: Senate Hearings on Dramatic New Digital Media
Regulations (Feb. 27, 2002)
http://www.eff.org/IP/SSSCA/20020227_eff_pr.html
EFF Letter to the Senate Commerce Committee on the proposed SSSCA (Nov.
5, 2001)
http://www.eff.org/IP/DMCA/20011105_eff_sssca_letter.html
EFF Action Alert on SSSCA (Sep. 21, 2001)
http://www.eff.org/alerts/20010921_eff_sssca_alert.html
EFF "Intellectual Property - Video - HDTV/Digital Cable" Archive
http://www.eff.org/IP/Video/HDTV/
ABOUT EFF:
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 websites in the world:
http://www.eff.org
CONTACTS:
Fred von Lohmann, EFF Senior Intellectual Property Attorney
fred@eff.org
+1 415-436-9333 x123
Cory Doctorow, EFF Outreach Coordinator
cory@eff.org
+1 415-726-5209
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JUDGE PONDERS JURISDICTION IN RUSSIAN EBOOK FORMATTER CASE
ADOBE ASSISTS U.S. GOVERNMENT IN ELCOMSOFT PROSECUTION
Electronic Frontier Foundation Media Release
San Jose, CA, March 4 - In the first round of motions in its criminal
defense, Moscow-based software company Elcomsoft asked Federal District
Judge Ronald Whyte to dismiss criminal charges against it. Elcomsoft
was charged under the U.S. Digital Millennium Copyright Act (DMCA) for
creating and distributing software that could permit electronic book
owners to convert the Adobe eBook format and make use of eBooks without
publishers' restrictions.
Russian programmer Dmitri Sklyarov, who was also charged based on a
complaint filed by Adobe Systems Inc. of San Jose, created the software
while an employee at Elcomsoft. Adobe withdrew its support of the case
against Sklyarov, and the government has suspended its prosecution of
Sklyarov.
Elcomsoft asked the court to dismiss the case because the company
distributed the software from Russia, and the DMCA does not apply
outside the United States. Elcomsoft also explained that the government
had not properly claimed a "conspiracy." The judge heard arguments from
both sides and is expected to issue a ruling shortly.
In an interesting turnabout, Adobe Systems assisted the government in
its prosecution by providing it with a declaration from one of Adobe's
top engineers. "We're disappointed that Adobe continues to push for
criminal prosecution of creators of tools that allow the public to
exercise their rights," said Electronic Frontier Foundation (EFF) Legal
Director Cindy Cohn. "We were hopeful that, having publicly withdrawn
their support for throwing Mr. Sklyarov in jail, Adobe would not push
the prosecution of his employer."
Two additional motions to dismiss by Elcomsoft, on constitutional
grounds, are set to be heard before Judge Whyte on April 1, 2002.
On February 4, 2002, EFF filed an amicus brief in the Elcomsoft case
supporting Elcomsoft's position that the DMCA is unconstitutional
because it impinges on protected speech and stifles technological
innovation. A group of over 35 law professors also filed an amicus
brief opposing the law.
LINKS:
EFF amicus brief in U.S. v. Sklyarov/Elcomsoft case:
http://eff.org/IP/DMCA/US_v_Elcomsoft/20020204_eff_amicus_brief.pdf
Frequently Asked Questions (FAQ) on Sklyarov/Elcomsoft case:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/US_v_Elcomsoft_faq.html
Other documents related to U.S. v. Sklyarov/Elcomsoft case:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/
Related media coverage:
http://www.wired.com/news/politics/0,1283,50832,00.html
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COURT SETS JURY TRIAL IN MORPHEUS PEER-TO-PEER SOFTWARE CASE
JUDGE DELAYS DECISION ON BETAMAX VCR DEFENSE
Electronic Frontier Foundation Media Release
Los Angeles - U.S. District Court Judge Stephen Wilson today delayed
ruling on whether the noninfringing uses of the Morpheus peer-to-peer
software product should shield it from a copyright lawsuit filed by 28
major entertainment companies.
Streamcast Networks, creators of the Morpheus software, had asked the
court to rule in favor of the technology on the basis of the "Betamax
defense" -- the principle that a technology capable of noninfringing
uses cannot be banned simply because some people may use it to infringe
copyrights. The judge stated that it was too early to rule on this
question, deciding instead to set an accelerated trial schedule with a
jury trial beginning on October 1, 2002.
"I am truly pleased that, unlike many of the cases where new
technologies have been attacked by entertainment companies, we will
have the chance to make our case before a jury of our peers," said
Steve Griffin, CEO and President of Streamcast, the company which also
maintains the MusicCity.com website.
The Electronic Frontier Foundation (EFF), along with the law firm of
Wilson, Sonsini, Goodrich & Rosati, represents Streamcast. Andrew
Bridges, partner at Wilson Sonsini and lead attorney in the case, said,
"While we are disappointed that the judge thought our motion was
premature, we look forward to renewing it and also welcome the prompt
resolution of the case before a jury."
"There is an important principle at stake here," said Fred von Lohmann,
EFF Senior Intellectual Property Attorney, "Morpheus, as a technology
that has numerous noninfringing uses, should be legal for the same
reasons that VCRs, photocopiers, mp3 players, and CD burners are
legal."
Morpheus software users currently access a broad variety of materials,
including public domain texts from Project Gutenberg, "shareware"
programs like the WinZip file compression software, films from the
Prelinger Archive, music videos from Lil'Romeo and others distributed
with permission by J!VE Media Technologies, and live concert recordings
authorized by musicians.
Streamcast also cited the Napster case, noting that the court held
Napster liable based on Napster's operation of a centralized
file-indexing service, but it never held Napster liable for, or
enjoined, creation or distribution of its software. In its ruling on
Napster, the 9th Circuit warned, "To enjoin simply because a computer
network allows for infringing use would, in our opinion, violate Sony
and potentially restrict activity unrelated to infringing use."
On October 2, 2001, twenty-eight of the world's largest entertainment
companies sued Streamcast, the Nashville-based developer of the leading
P2P file-sharing program Morpheus, for the infringing actions of users
of its product (MGM et al v. Grokster et al, Case No. 01-CV-8541 SVW).
LINKS:
Documents related to Metro-Goldwyn Mayer v. Grokster case:
http://www.eff.org/IP/P2P/MGM_v_Grokster/
U.S. Supreme Court ruling in the Betamax case, Sony Corp. of America v.
Universal City Studios, Inc.:
http://www.eff.org/Legal/Cases/sony_v_universal_decision.html
9th Circuit Court of Appeals decision in RIAA v. Napster:
http://www.ce9.uscourts.gov/web/newopinions.nsf/
4bc2cbe0ce5be94e88256927007a37b9/c4f204f69c2538f6882569f100616b06?
OpenDocument
Related music publisher lawsuit against MusicCity:
http://www.eff.org/IP/P2P/NMPA_v_MusicCity/
EFF Campaign for Audiovisual Free Expression:
http://www.eff.org/cafe/
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MEET UP WITH EFF STAFF AND FRIENDS AT SOUTH BY SOUTHWEST
ON MONDAY, MARCH 11TH
The Electronic Frontier Foundation , along with
Andrews and Kurth, L.L.P. and Polycot
Consulting L.L.C. , will co-host a party during
the South by Southwest Interactive Festival in Austin, Texas. EFF's Cory
Doctorow will be on hand, along with former EFF-Austin leaders Ed Cavazos
(currently with Andrews and Kurth, L.L.P.) and Jon Lebkowsky (currently
with Polycot Consulting L.L.C.).
The party will be held at Austin's great El Sol y La Luna, one of the
50 best Hispanic restaurants in the U.S. (per Hispanic Magazine).
Festivities will begin around 8:30pm CST Monday, March 11. El Sol y La
Luna is located at 1224 S. Congress Avenue, Austin, TX 78704. Free
munchies, lemonade, tea (and sangria while it lasts, then cash bar) -
and a happenin' crowd!
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