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Subject: IP: EFFector 12.04: IntProp vs. Free Speech in the Courts
>Date: Tue, 28 Dec 1999 21:22:33 -0800 (PST)
>From: Stanton McCandlish <mech@eff.org>
>Subject: EFFector 12.04: IntProp vs. Free Speech in the Courts
>
>
> 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
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>
> Editor: Stanton McCandlish, Communications Coordinator/Webmaster
> (editor@eff.org)
>
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>
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******************
A Happy Holiday and a safe New Year
from Dave and GG Farber
******************
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