EFFector Vol. 15, No. 1 Jan. 10, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 200th Issue of EFFector:
* Norway Indicts Teen Who Published Code Liberating DVDs
* EFF Wins a Partial Victory in Ford Case
* EFF Update on California DeCSS Case
* The Eleventh Annual International EFF Pioneer Awards - Call for
Nominations
* 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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Norway Indicts Teen Who Published Code Liberating DVDs
U.S. Entertainment Industry Pressured Norwegian Prosecutors
Electronic Frontier Foundation Media Release
For Immediate Release: Thursday, January 10, 2002
Oslo, Norway - Acting years after pressure from the U.S. entertainment
industry, the Norwegian government yesterday indicted teenager Jon
Johansen for his role in creating software that permits DVD owners to
view DVDs on players that are not approved by the entertainment industry.
On January 9, 2002, the Norwegian Economic Crime Unit (¯KOKRIM) charged
Jon Johansen for creating software called DeCSS in 1999 when he was 15
years old.
"Johansen shouldn't be prosecuted for breaking into his own property,"
said Robin Gross, staff attorney at the Electronic Frontier Foundation
(EFF). "Jon simply wanted to view his own DVDs on his Linux machine."
"Although prosecutors in Norway failed to defend the rights of their
citizens against Hollywood's unprecedented demands, we are confident that
neither the Norwegian people nor their justice system will allow this
charge to stand," added EFF Legal Director Cindy Cohn. "The movie studios
have used intellectual property rights to silence scientists, and censor
journalists. Now, they are declaring war on their customers."
Johansen's indictment comes more than two years after the Motion Picture
Association of America (MPAA) initally contacted ¯KOKRIM prosecutors to
request a criminal investigation of the Norwegian teen and his father,
Per Johansen, who owned the equipment on which the DeCSS software was
posted.
Johansen originally published DeCSS as part of the open source
development project LiVid (Linux Video) in building a DVD player for the
Linux operating system. The MPAA CSS licensing entity, named DVD-CCA,
refuses to license CSS to projects such as LiVid, which is an open source
project collaborating on the Web to build interoperable software tools.
LiVid's independently created DVD player software would compete with the
movie studio monopoly on DVD players while offering more consumer
friendly features.
DeCSS also enables people to exercise their fair use rights with DVD
movies, like fast-forwarding through commercials or copying for
educational purposes.
In January 2000, Johansen won the prestigious "Karoline Prize" for his
DeCSS software innovation. This national prize is awarded yearly to a
Norwegian high school student with excellent grades who makes a
significant contribution to society outside of school.
¯KOKRIM Chief Prosecutor Inger Marie Sunde indicted Johansen, who
recently turned 18, for violating Norwegian Criminal Code section 145(2),
which outlaws breaking into another person's locked property to gain
access to data that one is not entitled to access.
Johansen's prosecution marks the first time the Norwegian government has
attempted to punish individuals for accessing their own property.
Previously, the government used this law only to prosecute those who
violated someone else's secure system, like a bank or telephone company
system, in order to obtain another person's records.
Norwegian prosecutors did not indict Per Johansen, but his son Jon
Johansen could face two years in prison if convicted.
MPAA also requested ¯KOKRIM charge Johansen with contributory copyright
infringement; however prosecutors declined. Johansen's trial could start
before summer 2002.
On November 1, 2001, the California Court of Appeal for the 6th District
unanimously overturned a lower court's injunction that banned the
publication of DeCSS on trade secret grounds, citing the First Amendment
rights of individuals to independently obtain or derive information
claimed to be a trade secret by DVD-CCA.
In another legal case to outlaw DeCSS, brought under U.S. federal law,
the 2nd Circuit Court of Appeals in New York recently upheld a lower
court's ruling that ordered 2600 Magazine to remove DeCSS from its online
publication, including hyperlinks. Jon Johansen provided testimony in the
2600 Magazine case.
The Electronic Frontier Foundation (EFF) will continue to handle both of
these U.S. DeCSS cases and is determining its role in the Johansen case.
Links:
Additional information on Johansen case:
http://www.eff.org/IP/DeCSS_prosecutions/Johansen_DeCSS_case/
Jon Johansen's testimony at the 2600 Magazine trial in New York under the
DMCA (July 20, 2000):
http://www.eff.org/IP/Video/MPAA_DVD_cases/
20000720_ny_trial_transcript.html
Declaration of Jon Bing, Norwegian legal expert on lack of legal
precedent in Norway to support ¯KOKRIM's indictment (filed in California
DeCSS trade secrets case):
http://www.eff.org/IP/Video/DVDCCA_case/
20000118_bing_norway_law_decl.html
Additional information on DVD CCA cases:
http://www.eff.org/IP/Video/DVDCCA_case/
"Free Jon Johansen" mailing list:
mail to free-jon-request@eff.org with subject "subscribe"
or go to:
https://www.eff.org/mailman/listinfo/free-jon
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:
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415-436-9333 x112
Cindy Cohn, EFF Legal Director
cindy@eff.org
+1 415-436-9333 x108
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EFF Wins a Partial Victory in Ford Case
On December 20, 2001, the Eastern District of Michigan Court handed down
several rulings in Ford v. Great Domains, et al. In that case, EFF, along
with pro bono counsel Eric Grimm and David Lowenshuss, represent 7
individuals who were sued by Ford for registering domain names that
contain Ford trademarks. The domains are all used by individuals for
purposes unrelated to selling Ford cars. Ford claimed both trademark
infringement and violation of the Anti-Cybersquatter Protection Act
(ACPA). The websites include:
1. jaguarcenter.com, a website devoted to the wild cats, not cars;
2. jaguarenthusiastsclub, a website devoted to fans of Jaguar cars (and
big cats),
3. volvoguy.com, a website of a Volvo repairman,
4. 4fordparts.com websites of a repair shop that sells Ford parts and
5. vintagevolvo.com, a website devoted to fans of old Volvos.
All of the domains are passive, non-interactive domains.
Jaguarcenter.com, jaguarenthusiast.com and vintagevolvo.com are all
hobbyist websites with no commercial purpose whatsoever, much less one
that might intrude on Ford's business. Ford claims that "cybersquatting"
occurred because it alleges that all of the domains were registered for
sale at Great Domains. In addition, EFF brought a motion on behalf of one
of its clients, but whose goal was to free the over 70 other unserved
domain owners from the shadow of the lawsuit.
First, the court granted EFF's motion to dismiss the trademark causes of
action. It stated: "neither registering, nor warehousing, nor trafficking
in a domain name that incorporates a protected trademark is alone
sufficient to support claims of trademark infringement or dilution. Both
causes of action require use of a trademark in connection with goods or
services, which, in the cybersquatting context, generally will require
evidence that the domain was used to host a website from which goods or
services have been offered over the Internet."
Second, the Court rejected Ford's attempts to drag even more individuals
into the lawsuit through a process called "in rem" jurisdiction. Ford had
attempted to bring hundreds of additional individuals into the lawsuit by
fictitiously claiming that the lawsuit was not against the owner of the
domain, but the domain itself. Ford then claimed that a "deposit" of the
domain name in the Michigan courts, done by NSI, would be sufficient to
allow the case to go forward there. The Court disagreed. Thus the
individuals who have not been formally served could not be brought into
the case. This freed domains like the fan website classicvolvo.com, which
is registered to a Swedish man, from the threat of the lawsuit.
Earlier, the court had denied EFF's motion to dismiss the case because
Ford could not force the defendants, none of whom live or work in
Michigan and several of whom live in England, to defend this case in
Michigan. The Court refused to reconsider that decision at this stage,
but its ruling allows EFF to renew the claim that none of the Defendants
have sufficient contacts with Michigan to reasonably be sued there at a
later date.
The rulings, while not a complete victory, are significant not only for
this case but for many others. They establish:
1. Merely registering a domain name cannot serve as a basis for a claim
of trademark infringement, and
2. The fiction of "in rem" jurisdiction will not allow individuals to be
forced to any foreign court to defend their domains (although the
question of whether they can be forced to defend in Virginia, where
NSI is located, remains).
Both of these are good for the Internet.
The case continues through the discovery phase. At the end, EFF intends
to renew its motion to dismiss based upon lack of jurisdiction, as well
as fight the main case--that merely registering a domain name that
contains a trademark of a company and offering it for sale to the general
public does not constitute cybersquatting when the domain name can have
many noncompeting and noninfringing uses.
The decisions can be found at:
http://www.mied.uscourts.gov/_opinions/cleland.htm
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EFF Update on California DeCSS Case
On December 24, 2001, EFF told the California Supreme Court that it need not
to consider the preliminary injunction issued in the Bunner case. The
case arises from Mr. Bunner's republication of DeCSS after it became
widely publicly available in late 1999. In November, 2001, the Appellate
Court had ruled in Mr. Bunner's favor, finding that the lower court had
violated Mr. Bunner's First Amendment rights when it forced Mr. Bunner to
remove DeCSS from his website.
The Appellate Court decision is available here:
http://eff.org/IP/Video/DVDCCA_case/20011101_bunner_appellate_decision.html
DVD CCA which licenses CSS, brought the lawsuit based upon its claim that
DeCSS contains a trade secret that was originally part of CSS and so any
Internet publication of DeCSS by those who "know or ought to know" of the
trade secret claim is illegal.
Stating "rumors of the death of trade secret law have been greatly
exaggerated," EFF pro bono attorneys Tom Moore and Rick Wiebe argued,
first, that the DVD CCA, which sought the injunction, was now changing is
legal and factual theory. Before all of the lower courts DVD CCA claimed
that Bunner had no First Amendment rights in the publication of DeCSS,
now suddenly it claimed that the First Amendment "intermediate scrutiny"
test should be applied. It is improper to bring up new legal and factual
arguments for the first time at the state Supreme Court, so that reason
alone means that the Supreme Court should not consider the case.
The brief continues: "The Court of Appeal correctly decided the case by
applying ordinary and well-settled principles of both trade secret and
First Amendment law. Contrary to the DVD-CCA's representations, the Court
of Appeal did not hold the USTA [trade secret law] unconstitutional nor
did it hold that the First Amendment forbids every trade secret
injunction. In reversing the preliminary injunction, the Court of Appeal
found simply that when someone like Mr. Bunner republishes an alleged
trade secret, a preliminary injunction against republication is a prior
restraint under the First Amendment, and that on the facts of this case
the trial court had failed to accord sufficient weight to Mr. Bunner's
First Amendment right to speak."
The Supreme Court should decide whether to hear the case later this
Spring.
The brief is available at:
http://www.eff.org/IP/Video/DVDCCA_case/20011224_bunner_casupct_reply.html
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The Eleventh Annual International EFF Pioneer Awards - Call for
Nominations
In every field of human endeavor, there are those dedicated to expanding
knowledge, freedom, efficiency, and utility. Many of today's brightest
innovators are working along the electronic frontier. To recognize these
leaders, the Electronic Frontier Foundation established the Pioneer
Awards for deserving individuals and organizations. The Pioneer Awards
are international and nominations are open to all. The deadline for
nominations this year is Feb. 15, 2002 (see nomination criteria and
instructions below).
How to Nominate Someone
You may send as many nominations as you wish, but please use one e-mail
per nomination. You may submit your entries to us via e-mail to:
pioneer@eff.org. Just tell us:
1. The name of the nominee;
2. The phone number or e-mail address at which the nominee can be
reached; and, most importantly;
3. Why you feel the nominee deserves the award.
You may attach supporting documentation as RTF files, Microsoft Word
documents, or other common binary formats, or as plain text. Individuals,
or representatives of organizations, receiving an EFF Pioneer Award will
be invited to attend the ceremony at the Foundation's expense.
Nominee Criteria
There are no specific categories for the EFF Pioneer Awards, but the
following guidelines apply:
1. The nominees must have made a substantial contribution to the health,
growth, accessibility, or freedom of computer-based communications.
2. The contribution may be technical, social, economic, or cultural.
3. Nominations may be of individuals, systems, or organizations in the
private or public sectors.
4. Nominations are open to all (other than EFF staff & board and this
year's award judges), and you may nominate more than one recipient.
You may nominate yourself or your organization.
5. All nominations, to be valid, must contain your reasons, however
brief, for nominating the individual or organization, along with a
means of contacting the nominee (or heirs, if posthumous), and your
own contact number. Anonymous nominations will be allowed, but we
prefer to be able to contact the nominating parties in the event that
we need further information.
The 2002 Awards
The 11th annual EFF Pioneer Awards will be presented in San Francisco,
California, in conjunction with the 12th Conference on Computers,
Freedom, and Privacy (CFP2002). All nominations will be reviewed by a
panel of judges chosen for their knowledge of the technical, legal, and
social issues associated with information technology.
For more information please see:
Pioneer Awards web page:
http://www.eff.org/awards/pioneer.html
CFP site:
http://www.cfp.org/
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Administrivia
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Stanton McCandlish, EFF Technical Director/Webmaster
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