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 EFFector       Vol. 14, No. 35       Nov. 7, 2001      editors@eff.org     
 A Publication of the Electronic Frontier Foundation     ISSN 1062-9424     

  * CA Appeals Court Overturns Preliminary DVD Software Ban
  * EFF Defends MusicCity/Morpheus Peer-to-Peer Technology
  * Call for Action- Safeguard Communications Privacy
  * EFF Contest: Online Civil Liberties Impact of USA PATRIOT Act
  * EFF Seeks System Donations
  * Administrivia

For more information on EFF activities & alerts: http://www.eff.org/

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Court Overturns Ban on Publication in Trade Secret Case

Electronic Frontier Foundation/First Amendment Project Media Release

For Immediate Release: Thursday, November 1, 2001

California appellate court today unanimously overturned a trial court's
njunction banning dozens of individuals from publishing on their
be played on any computer.

The appellate court held that a lower court judge violated the First
Amendment rights of defendant Andrew Bunner in ordering Bunner and other
Bunner had republished the software after learning about it on Slashdot
News. The lower court enjoined Bunner from publishing DeCSS based on
claims of trade secret misappropriation even though he found the program
n the public domain and simply republished it.

"The court recognized that trade secrets do not trump the First
Amendment rights of citizens to publish and discuss information readily
available in the public domain," stated David Greene, Executive Director
of the First Amendment Project who argued the appeal before the 6th
District Appellate Court.

According to the court's ruling, "the California Legislature is free to
enact laws to protect trade secrets, but these provisions must bow to
the protections offered by the First Amendment." The court found that
the injunction barring Bunner's publication of DeCSS "can fairly be
characterized as a prohibition of 'pure' speech."

"In an era of expanding dubious legal claims by intellectual property
owners that threaten to stifle speech and innovation, this decision
EFF intellectual property attorney handling the case.

The studios objected to DeCSS software, which programmers wrote in the
fall of 1999 as part of an independent project to create a DVD player
for the Linux operating system. In early 2000, DVDCCA filed this lawsuit
against hundreds of Web publishers seeking to ban the publication of
DeCSS. Santa Clara County trial court Judge William Elfving granted the
expected to go to trial next spring before Judge Elfving.

Andrew Bunner was represented on appeal by David Greene and James
Wheaton of the First Amendment Project, Allonn Levy of San Jose's HS Law
Group, Tom Moore of Tomlinson Zisko Morosoli & Maser in Palo Alto,
Frontier Foundation attorneys Cindy Cohn and Robin Gross.

The U.S. 2nd Circuit Court of Appeals will likely decide soon a separate
case in which EFF appealed an injunction barring 2600 Magazine's
Editor-in-Chief Emmanuel Goldstein from publishing or linking to DeCSS
under the Digital Millennium Copyright Act's anti-circumvention
case on behalf of the EFF in May 2001.

The 6th Appellate Court's decision overturning the injunction:
More information on DVDCCA v. Bunner, et al. including legal filings
and media releases:

About EFF:

The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
most linked-to Web sites in the world:

About FAP:

The First Amendment Project is a nonprofit, public interest law firm and
advocacy organization dedicated to protecting and promoting freedom of
nformation, expression, and petition. FAP provides advice, educational
materials, and legal representation to its core constituency of
activists, journalists, and artists in service of these fundamental
liberties and has a website at:


    David Greene, FAP Executive Director
      +1 +1 415 336-3566 (cell)

    James Wheaton, FAP Senior Counsel
      +1 510-208-7744

    Robin Gross, EFF Intellectual Property Attorney
      +1 415-436-9333 x112

                                    - end -                                    


Tests Hollywood's Control of Content Delivery Technology

Electronic Frontier Foundation Media Release

Embargoed for Release on: Tuesday, November 6, 2001

Washington, DC - The Electronic Frontier Foundation (EFF) announced
today that it has joined MusicCity's legal defense team in a crucial
case testing the limits of Hollywood's power to control new

"This case is about the freedom of technologists to innovate and the
Attorney Fred von Lohmann, slated to announce the EFF's entry into the
case at a 12:30 PM Eastern press conference at the O'Reilly Peer-to-Peer
and Web Services Conference, in the Chevy Chase Room of the Westin Grand

the Nashville-based developer of the leading peer-to-peer file-sharing
file-sharing tool that allows users to connect with each other and share
nformation of all kinds. The entertainment companies claim that
MusicCity should be held responsible for the alleged copyright
nfringements committed by Morpheus users.

"Just as the entertainment industry tried to ban the VCR, now it aims to
outlaw the technology that is the next killer app of the Internet," said
EFF Intellectual Property Attorney Robin Gross.

claiming that Sony should be held liable for the infringing activities
of Betamax users. The U.S. Supreme Court rejected this effort to stifle
nnovation, holding that so long as the technology is "capable of
fear of copyright litigation from entertainment companies. The lawsuit
against MusicCity will likely be the pivotal test for the Betamax rule
n the Internet context.

"The question is whether Hollywood media powerhouses will be able to use
copyright as a pretext for seizing control over technology development,"
Wilson, Sonsini, Goodrich & Rosati and lead defense counsel for
MusicCity. "The landmark Betamax case taught the world that copyright
ownership does not confer veto power over the development of
technologies with varied uses, so long as those technologies are capable
of substantial non-infringing uses. In the end, Hollywood learned how to

only capable of noninfringing uses, but are being used for noninfringing

The case, captioned Metro-Goldwyn Mayer v. Grokster, No. 01-CV-8541 SVW,
s before Judge Stephen V. Wilson, U.S. District Court Judge for the
Central District of California in Los Angeles. Case documents also name
as defendants Consumer Empowerment and Grokster, two companies that
technology as Morpheus. No court dates have been set in the case.

Documents related to Metro-Goldwyn Mayer v. Grokster, including the
complaint filed in October:

U.S. Supreme Court ruling in the Betamax case, Sony Corp. of America v.
Universal City Studios, Inc.:

EFF Campaign for Audiovisual Free Expression:

About EFF:

The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
most linked-to Web sites in the world:

About MusicCity:

MusicCity.com is the first file searching service to license the preview
edition of Morpheus, a paradigm changing peer-to-peer enabling
application. In development for over a year, the Morpheus application
(client) allows users to search and find almost any type of digital file
(audio, video, photos, reference data, reports, documents, etc.) through
a secure peer-to-peer network powered by consumers and creators, not by
corporate servers and corporate interests. MusicCity Networks has
offices in Nashville, Tennessee, USA, and a website at:
[This information provided for reference only; EFF does not do


    Fred von Lohmann, EFF Senior Intellectual Property Attorney
      +1 415-436-9333 x123

    Robin Gross, EFF Intellectual Property Attorney
      +1 415-436-9333 x112

    Andrew Bridges, Partner, Wilson, Sonsini, Goodrich & Rosati
      +1 650-320-4861

    Steve Griffin, Chairman & CEO, MusicCity
      +1 615 261-0235

    Cindy Cohn, EFF Legal Director
      +1 415-436-9333 x108

                                    - end -                                    


  * President Bush has asked the head of the European Union to amend
    privacy laws in Europe so as to allow law enforcement access to
    records of personal communications;
  * The proposal is contrary to international human rights norms and has
    been rejected by European Privacy Commissioners and by Members of the
    European Parliament;
  * The proposal also adversely impacts the privacy interests of US
  * US and European groups are asked to endorse the letter to EU
    President Guy Verhofstadt expressing respectful but firm opposition to
  * To endorse: send name of organization and URL, email and fax for
    contact person BEFORE NOVEMBER 11 to eu_letter@epic.org. If questions,
    contact Cedric Laurant ;
  * Please forward this message to others UNTIL NOVEMBER 11.


Brussels, Belgium

Dear President Verhofstadt:

We write to you on behalf of a wide range of civic organizations in the
United States and Europe to express our concern regarding the request of
altered to allow for data retention regarding the communications of
Europeans and consequently of Americans. While we support the
terrorism and to work with government leaders to protect public safety,

First of all, under United States law there is no similar obligation for
underway, but it does not create a general obligation for communication
carriers to retain records on customers that are no longer required by
the carriers. President Bush is asking European governments to impose
obligations on European companies that would not be imposed on US

Second, the European Privacy Commissioners and Members of the European
obligations. In the letter of 7 June 2001 to Mr. G ran Persson,
Article 29 Working Group wrote that "Systematic and preventive storage
of EU citizens communications and related traffic data would undermine
the fundamental rights to privacy, data protection, freedom of
expression, liberty and presumption of innocence."

Freedoms and Rights, Justice and Home Affairs, Committee Members made
clear that restrictions to safeguard public security and conduct
criminal investigations should be appropriate, proportionate and limited
n time and that general or exploratory electronic surveillance on a
large scale could not be allowed. The Members also noted that Member
States should not have a general right to request whatever traffic and
location data they wished without the authorities stating a specific

Third, because communications data often moves between the United States
and Europe, European data retention requirements would directly and
adversely affect the privacy right sof Americans. There is a significant
because it was not retained or because US law would not permit law
enforcement access.

Fourth, the retention of personal information that would otherwise be
and security risks for citizens. Vast databases of personal data now
nclude sensitive medical information as well as data revealing

Further, the privacy commissioners have recognized that one of the best
communications is one of "the most important elements of the protection
of the fundamental right to privacy and data protection as well as of
obligation should be limited to what is strictly necessary in a
all traffic data for hypothetical criminal investigations and for a long

We note also that governments on both sides of the Atlantic have sought
to make secret public information that would otherwise assist the public
n understanding the threats it now faces. We do not believe it draws
the proper balance in a democratic society for the activities of
activities of citizens are made open to government.

Finally, we believe it is inconsistent with well established
nternational norms for communications privacy, such as Article 8 of the
European Convention on Human Rights and Article 12 of the Universal
Declaration of Human Rights, for governments to compel the retention of
communication is a central tenet of modern democratic society. Proposals
to reduce the privacy of citizens will undermine the strength of the

We have contacted President Bush regarding our concerns. We respectfully
urge you not to take any steps at this time that may reduce the privacy
of citizens.


Electronic Privacy Information Center

American Civil Liberties Union

Center for Democracy and Technology

Electronic Frontier Foundation

(list in formation)

cc: President George W. Bush



electronic communications sector (COM(2000) 385 - C5-0439/2000 -

(Codecision procedure: first reading)

The proposal was rejected(1).

Letter from Article 29 Data Protection Working Party to Mr G ran

EU Data Protection Working Party Article 29, Opinion 7/2000 on the
European Commission Proposal for a Dir. of the Eur. Parl. and of the
Council concerning the processing of personal data and the protection of
(2000) 385 (2 Nov. 2000), reprinted in M. Rotenberg, The Privacy Law
Sourcebook, United States Law, International Law, and Recent
Developments 437 (EPIC 2001)

Committee on Citizens' Freedoms and Rights, Justice and Home Affairs,
Report on the proposal for a European Parliament and Council Directive
concerning the processing of personal data and the protection of privacy
n the electronic communications sector, July 13, 2001.

Available at:

                                    - end -                                    


You've been diligently reading all of those EFFectors and scouring the
EFF website for those gems of information about topics such as online
free speech, privacy, and intellectual property.

Well, here is your chance to test your knowledge and have some fun
trying to win a prize!

A few lucky winners will receive recognition on the EFF contest web page
and a vintage EFF T-shirt as a prize for being the first few to deliver
the correct answers to the contest questions displayed at:

are not eligible to participate. EFF thanks DMH for coding the contest
EFFector announcing the contest winners, whichever comes first.

EFF collector's item at the same time.

                                    - end -                                    


EFF is looking for PC systems donations with the following minimum
those. ;-)   Our immediate needs are below.

* Processor: Celeron 550 or better.
* Memory: 256 megs or the ability to expand to 256 megs (or more)
* Hard Disk: 20 gig IDE or better or a bios new enough to handle 20
  gigs (or more).
* Misc: CD-Rom - Sound Card - USB
* 17 Inch or larger Monitor(s)
* Machine needs to be able to run Windows 2000 and/or Redhat 7.2.

Contact: marc@eff.org

                                    - end -                                    


EFFector is published by:

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Stanton McCandlish, EFF Technical Director/Webmaster

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