EFFector Vol. 12, No. 4 Dec. 28, 1999 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
IN THE 148th ISSUE OF EFFECTOR (now with over 20,000 subscribers!):
* Intellectual Property Interests Launch Holiday Attack on Free
Expression
+ Trade Group Files Suit Against All Identifiable Posters of or
Linkers to Linux DVD Hack
o WHAT YOU CAN DO: Show up!
+ Real Networks Gets Injunction against Streambox for Reverse
Engineering "RealMedia"
* Administrivia
For more information on EFF activities & alerts: http://www.eff.org
_________________________________________________________________
Intellectual Property Interests Launch Holiday Attack on Free Expression
Trade Group Files Suit Against All Identifiable Posters of or Linkers to
Linux DVD Hack
EFF Assembling Legal Team to Defend Targets
The movie industry, through its recently activiated Digital Video Disc
Content Control Association (DVD CCA), a trade organization
controlling DVD patents, has filed a lawsuit in California against
dozens of people around the world. who have published information, or
links to information, about the DVD Content Scrambling System (CSS),
on the Internet. As many as 500 defendants could eventually be named.
The DVD CCA claims that the defendants are violating the association's
trade secrets and other intellectual property rights by posting the
source code of (or simply having links to other sites with the source
code of) a legally reverse-engineered means of decoding DVD discs. An
important hearing in the case has been scheduled for tomorrow, Wed.,
Dec. 29, 1999.
Tomorrow's hearing is on whether the judge should issue a temporary
restraining order against the defendants, who have been publishing
information about the DVD content scrambling system in various
locations in the US and worldwide. Any such order, if issued, would
only apply for a few weeks, while the parties argued in court about
whether a permanent injunction should restrict these defendants from
publishing this information for the duration of the court case.
It is EFF's opinion that this lawsuit is an attempt to architect law
to favor a particular business model at the expense of free
expression. It is an affront to the First Amendment (and UN human
rights accords) because the information the programmers posted is
legal. EFF also objects to the DVD CCA's attempt to blur the
distinction between posting material on one's own Web site and merely
linking to it (i.e., providing directions to it) elsewhere.
These defendant individuals have been publishing legitimate, protected
speech, including software, textual descriptions, and discussions of
the DVD CSS. This speech is in no way copied or acquired from the DVD
CCA's trade-secret documents. Copyrights do not give anyone any rights
in "ideas", only in the exact form in which they are expressed.
Trade-secret law only controls people who agreed to keep it secret and
have been told the secret; other people remain free to independently
discover the secret. The ideas being discussed and implemented were
apparently extracted by having an engineer study a DVD product
("reverse engineering it"), which is a legal activity that is not
restricted by any laws in most jurisdictions.
The DVD CCA is trying to shut these speakers down by starting with the
false assumption that reverse engineering is illegal. It is not. If,
for example, the DVD reverse engineering had been done in Santa Clara,
it would be legal under the 9th Circuit Court case Sega v. Accolade.
See also the 1998 US Digital Millennium Copyright Act, which provides
specifically in section 1201(f) that reverse engineering of an
copy-protection encryption system is legal for "interoperability",
which is why it was done in this case.
The case itself is organized as a "theft of trade secrets" case; it
doesn't use the Digital Millennium Copyright Act and doesn't appear to
rely otherwise on copyright law. The root of the case is their
allegation that the original reverse-engineering of the DVD CSS system
was "improper" (paragraph 18), "unauthorized" (para. 20), "wrongfully
appropriating proprietary trade secrets" (para. 21), "unauthorized use
of proprietary CSS information, which was illegally "hacked" (para.
22). However, they provide no proof of these allegations, and they are
unlikely to be true. If the original reverse-engineering was legal,
which we believe is true, then the subsequent republication of the
information is also legal, and the case is merely a tool to harass
people exercising their legal rights.
EFF's interest in the case is to protect reverse engineering as part
of First Amendment protected speech. EFF legal counsel Robin Gross,
and pro-bono counsel Allonn Levy of Huber, Samuelson will be at Santa
Clara Superior Court tomorrow morning to represent at least two
defendants, Chris DiBona and Andrew Bunner. EFF co-founder John
Gilmore will also attend at the hearing tomorrow. EFF will at minimum
provide "stop-gap" defense to avoid a temporary restraining order
against the defendants. Following the hearing, EFF will assess the
situation and the level of our involvement.
EFF is committed to ensuring that individuals rights are protected,
and free speech is a fundamental right. It would be a poor public
policy to allow intellectual property owners to expand their property
at the expense of free speech -- particularly when the speech in
question elucidates how companies constrain the distribution of other
free expression.
The technology at issue here is the DVD Content Scrambling System
(CSS), a technical effort to prevent people who have legally purchased
a DVD from making completely legal copies of it for their own use. It
is legal ("fair use") for people to make personal copies of
copyrighted material available to them. (See, e.g., the Supreme
Court's 1984 decision in the "Betamax" case, Sony Corp. v. Universal
City Studios. In that case a movie studio was trying to have all VCR's
banned from the United States because of the potential to "pirate"
valuable movies -- just as in the current case they are attempting to
have all reverse-engineered decoders of DVDs banned. The Supreme Court
ruled that if VCR's have even a single non-infringing use, they cannot
be banned. It is clear that the reverse-engineered DVD CSS has a
non-infringing use, the viewing of DVDs on the Linux operating
system.) The underlying technology is for censorship, for control over
who can communicate what to whom. The DVD CSS prevents people from
making illegal copies -- and also prevents them from making LEGAL
copies, by preventing them from making ALL copies. The publishers are
trying to take away, by technical means, the rights guaranteed to
citizens under the copyright laws of many jurisdictions, including the
US.
The decoder source code at the center of the case, called "DeCSS", was
created (by third parties, not the defendants) to enable Linux
computers to utilize DVD drives and content, since the industry itself
failed to produce the necessary drivers for this operating system. DVD
CCA alleges rather unbelievably that the source code's real purpose is
to enable illegal duplication of DVD discs. The industry association
also misleadingly suggests that the DVD medium is simply a vehicle for
commercial content delivery, when in fact it is a read-write medium
intended to be used as computer storage by computer-using consumers,
just like hard drives or writable CDs.
We believe that the industry is mounting this legal attack merely as a
charade to discourage the widespread adoption of the legally
reverse-engineered information into popular open source software
programs. They knew that their "encryption system" was weak and that
it would not withstand scrutiny, so they kept it secret as long as
possible. Now that it's out in the open, they are wielding legal clubs
against anyone who attempts to write about it or use it, to delay the
inevitable. If they wanted to keep their information secret, they
shouldn't have made millions of copies of it and sold them all over
the world. Instead their tactics have been to follow the inevitable
disclosure by swift oppression, using large bankrolls to send lawyers
against little people. But the little people are part of the Linux
community and the Internet community, which have made billions of
dollars recently, and are not kindly disposed toward oppression.
More information, including case documents, is available at Chris
DiBona's site: http://www.dibona.com/social/dvd/index.shtml
WHAT YOU CAN DO: Show up!
If you're in the SF Bay Area and can make it to the hearing, consider
it "Netizen's Dress-Up Day" on Wed., Dec. 29. Meet at the front of the
Santa Clara County Superior Court, 191 N. 1st St., San Jose, CA, at
8am PST, dressed sharp, to personally attend the DVD case hearing. It
is important that the judge see an unexpectedly large and intent
attendance. The hearing will begin at 8:30 in one of Departments 2, 9
or 12 (uncertain at this time).
We will follow the hearing with a press conference outside the
courthouse, and many attendees will do a group lunch at nearby Havana
Cuba Restaurant.
Watch the wheels of justice grind! Shake hands with the intrepid
lawyers who are working hard to protect our rights! Meet interesting
defendants risking a lot to excercise their rights!
Please make a positive impression on the judge. Don those expensive,
semi-formal duds. Show the court -- by showing up -- that this case
matters to more people than just the plaintiff and defendants.
Demonstrate that this decision will make a difference to society. That
the public and the press are watching, and really do care that the
issue is handled well.
We'll have to be quiet and orderly while we're in the courthouse.
There will be no questions from the audience (that's us), and no
photography there, but the session will be tape-recorded and
transcribed, and you can take notes if you like. Remember that courts
have strict security these days, so don't bring cameras, or even small
pocket knives unless you want them held by entrance guards while
you're in the courthouse.
We realize this is very short notice, and that only locals are likely
to be able to attend, but this case is moving rapidly toward filing
and there is nothing we can do to delay it.
For more information on this gathering, see:
http://www.dibona.com/social/dvd/plan/
___________________________________________
Real Networks Gets Injunction against Streambox for Reverse Engineering
"RealMedia"
Real Networks, makers of the proprietary streaming audio-video system
known variously as RealMedia, RealAudio and RealVideo, have succeeded
in getting a preliminary injunction under the Digital Millenium
Copyright Act (DMCA) against Streambox, makers of "Ripper", software
that, among other things, has reverse-engineered the RealMedia formats
and/or protocols, allowing users to convert their RealMedia files into
other formats.
EFF believes this suit is without merit and the injunction an improper
restraint of freedom of expression, because the Ripper software has
many legitimate uses, including enabling of fair use and time or
format shifting (rights upheld in a number of court decisions,
including those in RIAA v. Diamond and Sega v. Accolade.) Real
Networks' characterization of Ripper as nothing but a tool for piracy
is factually incorrect.
The DMCA was not intended, and may not be used, to suppress legtimate
technologies or expression, nor the fair use rights of the public.
_________________________________________________________________
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)
Editor: Stanton McCandlish, Communications Coordinator/Webmaster
(editor@eff.org)
Membership & donations: membership@eff.org
General EFF, legal, policy or online resources queries: ask@eff.org
Reproduction of this publication in electronic media is encouraged.
Signed articles do not necessarily represent the views of EFF. To
reproduce signed articles individually, please contact the authors for
their express permission. Press releases and EFF announcements may be
reproduced individually at will.
To subscribe to EFFector via email, send message BODY of:
subscribe effector-online
to listserv@eff.org, which will add you to a subscription list for
EFFector. To unsubscribe, send a similar message body, like so:
unsubscribe effector-online
to the same address.
Please ask listmaster@eff.org to manually add you to or remove you
from the list if this does not work for some reason.
Back issues are available at:
http://www.eff.org/effector
To get the latest issue, send any message to
effector-reflector@eff.org (or er@eff.org), and it will be mailed to
you automagically. You can also get:
http://www.eff.org/pub/EFF/Newsletters/EFFector/current.html
