EFFector Vol. 14, No. 20 Aug 16, 2001 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 180th Issue of EFFector (now with over 28,600 subscribers!):
* ALERT: Hollywood Exports Technology Ban Overseas Despite US Abuse
* Scientists Support Professor's Copyright Law Challenge
* Court Protects Online Anonymity of Corporate Critics
* Administrivia
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_________________________________________________________________
ALERT: Hollywood Exports Technology Ban Overseas Despite US Abuse
EFF Calls on Public to Intervene in Treaty Process
Electronic Frontier Foundation ACTION ALERT
(Issued: August 16, 2001 / Deadline: August 22, 2001)
Introduction:
[Para una versión español de esta alarma, que puede ser distribuida
libremente, vaya a este URL (For a Spanish version of this alert,
which may be freely distributed, go to this URL):
http://www.eff.org/alerts/20010816_eff_ftaa_alert.es.html ]
While Russian graduate student Dmitry Sklyarov potentially faces five
years in prison under the first criminal prosecution of a
controversial new US law, the Digital Millennium Copyright Act (DMCA)
passed at the request of Hollywood in 1998, its backers are now busily
exporting overseas its dangerous legal theories of excessive copyright
protection at the price of civil liberties. Worldwide public
intervention is immediately necessary to restore freedom of speech as
a value promoted by free societies.
The Free Trade Area of the Americas (FTAA) treaty process, which is
under executive power, works to establish trade agreements between 34
countries in the Western hemisphere including the US. FTAA
nation-signatories pass legislation in each of their national forums
that conforms with the treaty's principles. Currently the group is
negotiating language to include in an international treaty between the
34 countries that deals with enacting new copyright rules, among other
issues. The FTAA organization is considering treaty language that
mandates nations pass anti-circumvention provisions similar to the
DMCA, except the FTAA treaty grants even greater control to publishers
than the DMCA.
The public must intervene to express disapproval of the FTAA's
proposed anti-circumvention measures in order to correct this trend in
copyright law. FTAA is currently accepting public feedback on the
proposed treaty language until August 22. Contact the U.S. Trade
Representative (or your country's representative) and urge the removal
of the anti-circumvention measures from incorporation into the final
FTAA treaty. Already existing theories of liability under US copyright
law adequately protect the legitimate interests of copyright holders
without the need to impose anti-technology restrictions on the entire
public. Rather than adopt even more draconian measures that ban
socially beneficial technologies in a fantasy of protecting
copyrights, such as the proposed anti-circumvention measures to FTAA
attempts, foreign countries should learn from the disastrous US
experience with the DMCA. They should wisely steer away from such
over-reaching measures.
What YOU Can Do:
EFF calls upon the citizens of the 34 countries affected by this
treaty, including the US, to submit comments by August 20 (22 at the
latest) urging the group to remove the provisions from the treaty that
outlaw the act of circumvention and forbid providing tools for
circumvention of technological protection measures restricting use of
copyrighted works. These measures violate the U.S. Constitution's
guarantee of freedom of speech under the First Amendment, similar
guarantees in other national constitutions and laws and in the UN
Universal Declaration of Human Rights, since such tools are necessary
to exercise lawful uses, including fair use. While protecting
copyright is important, passing measures that also censor much lawful
speech goes too far, without ever achieving its objective. The next
meeting of the FTAA Negotiating Group on Intellectual Property Rights
is Aug. 22 in Panama, and public comments will be most effective if
received before this date. This means it should be mailed by Aug. 18
at the latest, in the US, and even sooner from other countries.
(Unfortunately, the FTAA site does not provide mechanisms for
Web-submitted comments.)
Comments, to be received by the FTAA organization by August 20, should
be submitted to:
Gloria Blue, Executive Secretary, Trade Policy Staff Committee
Attn: FTAA Draft Text Release
Office of the U.S. Trade Representative
1724 F. St., NW, Fifth Floor
Washington DC 20508 USA
Non-US writers should also send a copy to their own country's
intellectual property government officials; list available at:
http://www.sice.oas.org/int_prop/ip_dir.asp
Sample Letter:
This is just an example. It will be most effective if you send
something similar but in your own words.
Dear Ms. Blue, Trade Policy Staff Committee, and Negotiating Group
on Intellectual Property Rights:
I write to express my grave concern regarding the draft FTAA
treaty's extreme intellectual property provisions.
These measures, based on the US Digital Millennium Copyright Act
(DMCA) give far too much power to publishers, at the expense of
indivdiuals' rights. The DMCA itself is already under legal
challenge in the US, has gravely chilled scientists' and computer
security researchers' freedom of expression around the world for
fear of being prosecuted in the US, and resulted in the arrest of a
Russian programmer. The FTAA provisions, which serve no one but
American corporate copyright interests, are even more overbroad
than those of the DMCA.
These provisions would require signatory nations to pass new
DMCA-style laws that ban, with few or no exceptions, software and
other tools that allow copy prevention technologies to be bypassed.
This would violate the U.S. Constitution's guarantee of freedom of
speech under the First Amendment, and similar guarantees in other
national constitutions and laws and in the UN Universal Declaration
of Human Rights, since such tools are necessary to exercise lawful
uses, including fair use, reverse engineering, computer security
research and many others.
I urge you to remove these controversial and anti-freedom
provisions from the FTAA treaty language. The DMCA is already an
international debacle. Its flaws - and worse - should not be
exported and forced on other countries.
Sincerely,
[Your full name]
[Your address]
Non-US writers should mention their own country's constitution and/or
laws protecting freedom of expression, of coruse.
Copies may also be sent by e-mail to some key people in the FTAA
process:
kalvarez@ustr.gov (Kira Alvarez - Intellectual Property)
walter_bastian@ita.doc.gov (Walter Bastian - E-Commerce)
Non-US contacts available at:
http://www.ftaa-alca.org/contacts/contpts.asp
Background:
Much like the DMCA, the current draft of the FTAA agreement forbids
the act of circumventing a "technological protection measure" that
controls the use of a copyrighted work. It also bans making or
providing tools that could help another to use a copyrighted work.
Unlike the DMCA, however, the language currently proposed for the FTAA
treaty doesn't include even a single exemption that would permit
activities like lawful reverse engineering, protecting privacy, fair
use rights, encryption research, and countless other reasons a person
might need to override the publisher's controls. (And the DMCA only
includes a few very narrow exemptions to the general ban on
circumvention, but they have so far proven completely useless to
everyone who has attempted to rely on them.)
Even though copyright law gives individuals rights such as fair use,
the DMCA and FTAA's proposed anti-circumvention provisions outlaw all
tools that are necessary to exercise those rights, effectively killing
fair use in the digital age. These measures ensure works are prevented
from taking their place in the public domain, denying the public what
rightfully belongs to it under the law. The guarantees of free
expression under the First Amendment, other constitutions & laws in
other countries, and the United Nations Universal Declaration of Human
Rights, rightly prevent publishers from having complete control over
the way in which copyrighted works can be used. But the DMCA and its
counterpart in the FTAA treaty ignore this principle and would grant
publishing companies the power to turn individual rights into "product
features" that can be disabled at the whim of the publisher.
Since its passage, the DMCA has thus far been used to: censor a
journalist reporting on a controversial software program; attempt to
squelch the research of a Princeton professor who discovered the
vulnerabilities of the music industry's favored technology; and arrest
a foreign computer programmer for developing software that allows
lawful purchasers of electronic books to view them in ways not
supported by a competitor's viewing software. Because it wishes to
consistently abuse these powers throughout the world, rather than
merely in the United States, Hollywood and the rest of the copyright
industry are now attempting to export this legal regime throughout the
world.
It is truly ironic that the United States, once the beacon for
promoting the principles of freedom of expression, is now
systematically infecting other countries with this dangerous public
policy choice that will restrict more speech than any law before it.
FTAA's anti-circumvention provisions represent US imperialism at its
worst. They seek to impose restrictive laws on both the US and other
countries, in order to prevent established US businesses from facing
both domestic and foreign competition. These competitors would offer
the public much better deals than these businesses wish to offer,
which is why the small number of companies that control music, movie
and book distribution seek to have these competitors outlawed. The
anti-circumvention provisions' terrible effects on freedom of speech,
scientific advancement, and actual computer security, as well as on
public libraries and access to knowledge, are merely "incidental"
damage, suffered by society for the benefit of these businesses.
To view the proposed FTAA treaty language, see:
http://www.ftaa-alca.org/ftaadraft/eng/draft_e.doc [MS-Word]
For more information on the FTAA treaty process, see:
http://www.ftaa-alca.org/alca_e.asp
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 Web sites in the world:
http://www.eff.org
Contact:
Will Doherty, EFF Online Activist / Media Relations
wild@eff.org
+1 415 436 9333 x111
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415 436 9333 x112
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_________________________________________________________________
Electronic Frontier Foundation Media Release
Scientists Support Professor's Copyright Law Challenge
Electronic Frontier Foundation Exposes "Chilling Effect"
For Immediate Release: Monday, August 13, 2001
Contact:
Lee Tien, EFF Senior Staff Attorney
tien@eff.org
+1 510-290-7131 (cell)
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415-637-5310 (cell)
Monica Ortiz, USENIX Press Liaison
monica@usenix.org
+1 415-990-5513 (cell)
Trenton, NJ - Seventeen of the world's top scientists today supported
Princeton University Professor Edward Felten and his research team's
challenge to the Digital Millennium Copyright Act (DMCA) on free
speech grounds. Prominent academics, cryptographers, software
programmers, and scientific conference organizers explained to a
federal court the stifling effects of the DMCA on scientific research
and freedom of expression.
The Electronic Frontier Foundation (EFF) represents the research team
in a lawsuit filed June 6 asking a federal judge to declare that the
scientists have a First Amendment right to publish their research both
at the USENIX Conference in Washington, DC, and elsewhere. USENIX,
fearful of threats that had been made against the organizers of the
prior conference, has joined the suit.
In his latest declaration to the court, Professor Felten explained, "I
understand that Defendants advocate an interpretation of the DMCA that
would outlaw analysis of systems that might be used to control the use
of copyrighted materials.... [S]uch an interpretation would
effectively prevent analysis of critical systems, and so would have a
disastrous effect on education, research, and practice in computer
security."
He further commented, "Not only in computer science, but also across
all scientific fields, skeptical analysis of technical claims made by
others, and the presentation of detailed evidence to support such
analysis, is the heart of the scientific method. To outlaw such
analysis is to outlaw the scientific method itself."
The case arose after scientists from Princeton University, Rice
University, and Xerox tried to publish research that reveals flaws in
the recording industry's control systems for digital music at an April
2001 conference. The recording industry claimed that a 1998 law called
the DMCA prohibited the presentation of the research paper. In a
series of e-mails and conference calls to the researchers, their
universities, and conference organizers, recording industry attorneys
intimidated the researchers into withdrawing their paper from the
April conference. Hours after the paper was withdrawn, representatives
of the Recording Industry Association of America (RIAA) issued a press
release claiming that they had never intended to prevent scientific
speech.
Last month, the RIAA asked the court to dismiss the current lawsuit
after sending a letter to the court stating that it would allow the
conference to go forward, so no case or controversy exists for the
court to decide. The EFF legal filing today rebuts that claim and
reveals the chilling effect felt throughout the scientific community
since Congress passed the DMCA and the recording industry started
threatening researchers.
In legal declarations supporting the researchers, scientists worldwide
expressed concern about traveling to the United States, where the FBI
has already arrested and jailed a programmer for allegedly writing
software or conducting research that could help someone use a
copyrighted work in ways disallowed by the publisher.
Niels Ferguson, a prominent Dutch cryptographer who recently
discovered major flaws in a commercial high-definition video system,
told the court, "Despite the fact that I performed all the work in
Amsterdam, I could face arrest if I visit the US after my research had
found its way into the jurisdiction. My research is silenced since I
cannot talk about my scientific results to my colleagues and peers, as
is now the case since the DMCA became law in the US. Scientific
freedom is not only threatened under this law, it is demonstrably
curtailed."
The DMCA prohibits providing information that other people may use to
circumvent the technological protection measures placed on digital
files. In this case, the recording industry developed watermark
technologies to help control how consumers can use digital music.
Professor Felten's team discovered that it was easy to circumvent the
technologies.
"The recording industry has done untold damage by their threats to
Felten and the other researchers, their universities, and the
conference organizers. The resulting chilling effect on the broader
scientific community continues unabated," said Robin Gross,
intellectual property attorney for EFF. "We on the Felten legal team
will work to ensure that industry can no longer use the DMCA to
threaten freedom of speech and scientific progress."
The eventual presentation of the Felten research team's SDMI Challenge
results, Aug. 15, 2001, USENIX Security Conference, Washington DC, is
available as an archived webcast at:
http://www.technetcast.com/sdmi-challenge.html
The New Documents:
Declaration of Professor Ed Felten (Princeton University):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_felten_decl.html
Declaration of the USENIX Association:
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_usenix_decl.html
Declaration of the Association for Computing Machinery (ACM):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_acm_decl.html
Declaration of the Computing Research Association (CRA):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_cra_decl.html
Declaration of Prof. Andrew W. Appel (Princeton U.):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_appel_decl.html
Declaration of cryptographer Matt Blaze (AT&T Laboratories):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_blaze_decl.html
Declaration of British programmer Alan Cox (Red Hat UK Ltd.):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_cox_decl.html
Declaration of Scott Craver (Princeton U.):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_craver_decl.html
Declaration of Howard Ende (General Counsel for Princeton U.):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_ende_decl.html
Declaration of Dutch cryptographer Niels Ferguson (MacFergus BV):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_ferguson_decl.html
Ferguson on the DMCA: "Censorship in action: Why I don't publish my
HDCP results":
http://www.macfergus.com/niels/dmca/
Declaration of John McHugh (general chair of the Information Hiding
Workshop):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_mchugh_decl.html
Declaration of computer security researcher Michael Reiter (Bell
Labs/Lucent Technologies):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_reiter_decl.html
Declaration of cryptographer Bruce Schneier (Counterpane Internet
Security):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_schneier_decl.html
Declaration of Asst. Prof. Dan Wallach (Rice U.):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_wallach_decl.html
Declaration of Min Wu (Princeton U.):
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_wu_decl.html
[More declarations coming soon.]
More Key Documents:
RIAA/SDMI April 2001 letter threatening Professor Felten and his team:
http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010409_riaa_sdmi_letter.html
Professor Felten's website:
http://www.cs.princeton.edu/sip/sdmi/
Listen to an audio file of the press conference held when the case was
launched [MP3]:
http://www.eff.org/IP/DMCA/Felten_v_RIAA/felten_audio.html
EFF's & Professors' First Amended Complaint:
http://eff.org/Cases/Felten_v_RIAA/20010626_eff_felten_amended_complaint.html
EFF's & Professors' Original Complaint:
http://eff.org/Cases/Felten_v_RIAA/20010606_eff_felten_complaint.html
RIAA's Memorandum in Support of Motion to Dismiss [PDF file]:
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010712_riaa_mtd_memo.html
EFF/Felten Opposition Brief against motion to dismiss:
http://eff.org/Legal/Cases/Felten_v_RIAA/20010813_eff_felten_brief.html
For more information on the August USENIX Security conference:
http://www.usenix.org/events/sec01/
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 Web sites in the world:
http://www.eff.org/
About USENIX:
The USENIX Association, an organization representing some 10,000
computer research scientists is dedicated to the free exchange of
scholarly information through its many conferences and publications.
See its website at:
http://www.usenix.org/
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_________________________________________________________________
Court Protects Online Anonymity of Corporate Critics
Electronic Frontier Foundation Defends Yahoo! Forum Posters
Electronic Frontier Foundation Media Release
For Immediate Release: August 13, 2001
Contact:
Lauren Gelman, EFF Public Policy Dir.
gelman@eff.org
+1 415-436-9333 x106 or +1 202-487-0420 (cell)
San Jose, CA - On Friday, August 10, attorneys from the Electronic
Frontier Foundation (EFF) successfully defended the speech rights of
two anonymous Yahoo! message board posters. A California State court
found that the right of Internet posters to speak anonymously
outweighed a company's desire to unmask their identities.
The case involves a subpoena issued by Pre-Paid Legal Services, Inc.,
of Oklahoma (PPLS) requesting the identity of eight posters on
Yahoo!'s "Pre-Paid" message board, an online forum for discussions
related to the company. EFF represents two of the J. Does PPLS
subpoenaed to unmask their identities as part of a dispute between
PPLS and another (identified) person.
PPLS argued that it needed the Does' identities to determine whether
the Internet posters had to comply with a voluntary injunction
preventing former sales associates who work for a competitor from
revealing PPLS's trade secrets. EFF senior staff attorney Lee Tien
argued that the messages cited by PPLS indicated only that the Does
were critical of the company and how it treats its associates.
Revealing the identity of these anonymous speakers would give PPLS the
opportunity to punish the anonymous posters simply for criticizing the
company.
Ruling from the bench, the Honorable Neil Cabrinha of the Santa Clara
County Superior Court quashed the subpoena to Yahoo! requesting the
posters' identities. Judge Cabrinha agreed with EFF that the messages
did not appear to violate the injunction, and therefore the First
Amendment protection of anonymous speech outweighed PPLS's interest in
learning the identity of the speakers.
"This is a great victory for anonymous speech," said EFF's Tien. "I
believe Judge Cabrinha's ruling will signal other companies that
judges will not permit corporate executives to abuse the courts in
ferreting out their critics."
"EFF will continue to step in and fight for the right of individuals
to speak anonymously," said Lauren Gelman, EFF's director of public
policy. "We expect to see many similar decisions recognizing that
First Amendment protections do not disappear just because someone
chooses to speak online."
The documents filed in the case (PPLS v. Sturtz) are available at:
http://www.eff.org/Legal/Cases/PrePaid_Legal_v_Sturtz/
More information on the similar In re: 2TheMart.com case can be found
at:
http://www.eff.org/Legal/Cases/2TheMart_case/
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 Web sites in the world:
http://www.eff.org/
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_________________________________________________________________
EFF Thanks LabTam Finland for Generous Software Donation
The EFF wants to thank the folks at LabTam Finland for their generous
software donation of their WinaXe product. WinaXe is a Windows program
that allows Windows to run as an Linux X-windows terminal. This allows
the Windows users to run Unix gui applications and even run an entire
Unix desktop on their laptop computers. By using this product our
users can run Windows and Linux at the same time and can cut and paste
information between the two operating systems. And a single Linux
server provides the desktop for all our Linux users. LabTam website:
http://www.labf.com/
The EFF appreciates companies like LabTam who make useful software and
donate licenses to EFF. This helps us become more effective in our
struggle to protect civil liberties.
_________________________________________________________________
Administrivia
EFFector is published by:
The Electronic Frontier Foundation
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Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
editors@eff.org
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