EFFector org Publication of the Ele

 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/

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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FIRST AMENDMENT RIGHT TO PUBLISH COMPUTER CODE UPHELD

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:

  http://www.eff.org/Cases/DVDCCA_case/20011101_bunner_appellate_decision.html

More information on DVDCCA v. Bunner, et al. including legal filings

and media releases:

  http://www.eff.org/Cases/DVDCCA_case/

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:

  http://www.eff.org/

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:

  http://thefirstamendment.org/

Contact:

    David Greene, FAP Executive Director

      dgreene@thefirstamendment.org

      +1 +1 415 336-3566 (cell)

    James Wheaton, FAP Senior Counsel

      wheaton@thefirstamendment.org

      +1 510-208-7744

    Robin Gross, EFF Intellectual Property Attorney

      robin@eff.org

      +1 415-436-9333 x112

                                    - end -                                    

________________________________________________________________________

EFF DEFENDS MUSICCITY/MORPHEUS PEER-TO-PEER TECHNOLOGY

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

technologies.

"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

Hotel.

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:

  http://www.eff.org/IP/P2P/MGM_v_Grokster/

U.S. Supreme Court ruling in the Betamax case, Sony Corp. of America v.

Universal City Studios, Inc.:

  http://www.law.cornell.edu/copyright/cases/464_US_417.htm

EFF Campaign for Audiovisual Free Expression:

  http://www.eff.org/cafe/

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:

  http://www.eff.org/

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:

  http://www.musiccity.com/

[This information provided for reference only; EFF does not do

Contact:

    Fred von Lohmann, EFF Senior Intellectual Property Attorney

      fred@eff.org

      +1 415-436-9333 x123

    Robin Gross, EFF Intellectual Property Attorney

      robin@eff.org

      +1 415-436-9333 x112

    Andrew Bridges, Partner, Wilson, Sonsini, Goodrich & Rosati

      abridges@wsgr.com

      +1 650-320-4861

    Steve Griffin, Chairman & CEO, MusicCity

      sgriffin@streamcast.ws

      +1 615 261-0235

    Cindy Cohn, EFF Legal Director

      cindy@eff.org

      +1 415-436-9333 x108

                                    - end -                                    

________________________________________________________________________

CALL FOR ACTION - SAFEGUARD COMMUNICATIONS PRIVACY

  * 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

    citizens;

  * US and European groups are asked to endorse the letter to EU

    President Guy Verhofstadt expressing respectful but firm opposition to

    proposal;

  * 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.

DRAFT

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

companies.

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.

Sincerely,

Electronic Privacy Information Center

American Civil Liberties Union

Center for Democracy and Technology

Electronic Frontier Foundation

(list in formation)

cc: President George W. Bush

                       --------------------------

REFERENCES

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

  http://www3.europarl.eu.int/omk/omnsapir.so/calendar?APP=PV2&PRG=CALEND&LANGUE=EN&TPV=PROV&FILE=010906

(Codecision procedure: first reading)

The proposal was rejected(1).

  http://www3.europarl.eu.int/omk/omnsapir.so/pv2?PRG=CALEND&APP=PV2&LANGUE=EN&TPV=PROV&FILE=010906

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

  http://www.statewatch.org/news/2001/jun/07Rodota.pdf

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:

  http://www2.europarl.eu.int/omk/OM-Europarl?PROG=REPORT&L=EN&PUBREF=-//EP//TEXT+REPORT+A5-2001-0270+0+NOT+SGML+V0//EN&LEG_ID=5

                                    - end -                                    

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EFF CONTEST: ONLINE CIVIL LIBERTIES IMPACT OF USA PATRIOT ACT

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:

  http://www.eff.org/cgi-bin/contest/contest.html

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 SEEKS SYSTEMS DONATIONS

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 -                                    

________________________________________________________________________

ADMINISTRIVIA

EFFector is published by:

The Electronic Frontier Foundation

San Francisco CA 94110-1914 USA

+1 415 436 9333 (voice)

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  http://www.eff.org/

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Katina Bishop, EFF Education & Offline Activism Director

Stanton McCandlish, EFF Technical Director/Webmaster

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