In the 240th Issue of EFFector:

• Alert: TIA Update - Support the Data Mining Moratorium Act of 2003!
• Alert: Who Controls Your Digital Media? Shouldn't it Be You?
• EFF Needs Volunteer Editors
• Lawmakers Urge Protection of Fair Use
• Senators Seek Moratorium on Government Data-Mining
• Hollywood Not on the Same Planet as ReplayTV Fans
• EFF Releases Update to "Unintended Consequences: Four Years Under the DMCA"
• Norwegian Teenager Jon Johansen Acquitted in DVD Case
• US Supreme Court Says Californians Can't Sue Texas Resident
• Nomination Call for EFF Pioneer Awards - Deadline Feb 1st
• Deep Links (8): Another Reason to Repeal the DMCA; Mickey Mouse Clubbed
• 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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TIA Update - Support the Data Mining Moratorium Act of 2003

On January 16th, Senators Russ Feingold, Jon Corzine, and Ron Wyden introduced the Data-Mining Moratorium Act of 2003, a bill that would freeze domestic data-mining projects that lack explicit governmental approval. This measure would stop some of the scariest provisions of the Total Information Awareness (TIA) program. While TIA is still a huge threat to your civil liberties, this measure is an important step in its defeat. Take action here:
http://action.eff.org/action/index.asp?step=2&item=2401

Who Controls Your Digital Media? Shouldn't it Be You?

Have you had trouble playing a CD in your car or computer? Do you hate the inability to fast forward through the advertisements on your DVDs? Ever been unable to play a foreign DVD on a player you bought in the U.S.? If so, you know there's something wrong with this picture.

You may not know it, but these kinds of problems are made possible by a U.S. law called the Digital Millennium Copyright Act (DMCA). Every three years, the Librarian of Congress looks at how the DMCA is working and decides whether to make exemptions for people who want to use their digital media in legitimate ways.

This may sound complicated, but making a difference can be simple.

What You Can Do

We're looking for real world examples of how access to digital media is being hampered, and that's where you come in. All you need to do is tell the Librarian that you're sick of not being able to use the stuff you buy in the ways you want.

This is your chance to stand up and fight! Your story will be submitted to the U.S. Copyright Office in support of our efforts to seek DMCA exemptions.

We can only accept stories that fall into these categories:

• Copy protected CDs that won't play in devices like your car stereo or computer
• Region-coded DVDs that don't work in a player you purchased in the U.S.
• DVDs with promotional material you couldn't skip
• DVDs of public domain movies that you can't use in a way that you want

If you don't personally have examples but know of someone who does, please tell us about them or let them know about our search and encourage them to contact us.

So jump up from the sidelines and transcend the borders of your web browser! Now you can do something concrete to stop our digital freedoms from becoming just fond memories. Visit this page to fight for your rights:

http://www.eff.org/IP/DMCA/2003-DMCA-1201-comments.php

EFF Needs Volunteer Editors

And we need 'em bad. We're gathering comments on digital media access in support of our request for DMCA exemptions from the Librarian of Congress (LoC). The trouble is that the LoC is picky; if a comment doesn't follow certain format and content rules it may not be accepted.

We need skilled and savvy individuals to help us get the comments ready for prime time. Specifically, we're looking for folks with editing experience and an interest in learning more about the DMCA and consumers' digital rights.

Each volunteer editor will be trained on the issues (with an EFF attorney), get a few comments to edit, and earn lots of good, geeky karma. This is a terrific way to get involved and make a tangible difference in the fight for your digital rights.

If you have some spare time and want to help out, send us a writing sample that's not too long (no more than 1,000 words) and tell us a little bit about yourself. You can also write to us with questions about the process. Thanks for your interest!

Please contact:
Michael Bierman
Lead Volunteer
michaelb@eff.org

Lawmakers Urge Protection of Fair Use

Digital Media Consumers' Rights Act Re-Introduced

Initiating what is certain to be a contentious debate during the 108th Congress, U.S. Representatives Rick Boucher (D-VA), John Doolittle (R-CA), Spencer Bachus (R-AL) and Patrick Kennedy (D-RI) introduced on Tuesday the Digital Media Consumers' Rights Act with the announced goal of protecting the Fair Use rights of the users of copyrighted material and thereby enabling the consumers of digital media to make use of it in ways that enhance their personal convenience. The legislation (H.R. 107)is identical to that which Boucher and Doolittle introduced during the Fall of 2002.

Maintaining that Fair Use rights are severely threatened with respect to the consumers of digital media, the legislators propose amending a 1998 law, the Digital Millennium Copyright Act, which was enacted at the behest of motion picture studios, the recording industry, and book publishers.

"The fair use doctrine is threatened today as never before. Historically, the nation's copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the Fair Use rights of the users of copyrighted material"

Boucher said. "The re-introduced legislation will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work," Boucher explained.

The bill addresses two key provisions of the 1998 law that prohibits the circumvention of a technical protection measure guarding access to a copyrighted work even if the purpose of the circumvention is to exercise consumer Fair Use rights. The bill re-introduced this week would limit the scope of the prohibition to circumvention for the purpose of copyright infringement. Circumvention for the purpose of exercising Fair Use rights would be permitted under the legislation.

"We believe it is entirely proper to outlaw circumvention for the purpose of copyright infringement; however, a person who is circumventing a technical measure solely for the purpose of using that material under classic Fair Use principles should be free to do so," Doolittle said.

The bill also amends the provisions of the 1998 law which prohibit the manufacture, distribution or sale of technology which enables circumvention of the protection measures. Under the current law, trafficking in those technologies is a crime if the technology was primarily designed to be used for copyright infringement. Claiming that this legal standard is too subjective to give manufacturers confidence to introduce new products, the legislation would instead focus on whether or not the technology had substantial non-infringing uses. If the technology is capable of substantial non-infringing use, the manufacture, distribution, and sale of the product would be lawful under the bill they have sponsored.

"Without a change in the law, individuals will be less willing to purchase digital media if their use of the media within the home is severely circumscribed and the manufacturers of equipment and software that enables circumvention for legitimate purposes will be reluctant to introduce the products into the market," Boucher added.

The lawmakers also would direct the Federal Trade Commission to promulgate a regulation requiring that "copy-protected CDs" be properly labeled.

"The few copy-protected CDs which have been introduced into the U.S. market to date are inadequately labeled and create broad consumer confusion," Boucher said.

"We are not proposing to outlaw the introduction of copy-protected CDs. We, however, want to ensure that if copy-protected CDs are introduced in larger volumes, consumers will know what they are buying," Doolittle added.

Supporters of the Digital Media Consumers Rights Act include Intel, Verizon, Philips Electronics North America Corporation, Sun Microsystems, Gateway, the Consumer Electronics Association, Computer and Communications Industry Association, the Association for Computing Machinery, the Computer Research Association and a variety of trade associations representing technology companies, the American Library Association, the American Association of Universities, the National Humanities Alliance, the Digital Future Coalition, the Consumers Union, the Home Recording Rights Coalition, the Electronic Frontier Foundation, Public Knowledge, the National Writers Union and other organizations representing the public interest and the consumers of digital media.

Links:
This release available at:
http://www.house.gov/boucher/docs/dmca108.htm

Urge your representative to co-sponsor the DMCRA: http://action.eff.org/action/index.asp?step=2&item=2224

Senators Seek Moratorium on Government Data-Mining

Electronic Frontier Foundation Supports Privacy Protections

Washington, DC - Senator Russ Feingold introduced legislation yesterday that would stop U.S. government data-mining activities directed at U.S. citizens pending Congressional authorization. The bill targets the controversial Total Information Awareness (TIA) program of the U.S. Defense Advanced Research Projects Agency (DARPA).

Senator Ron Wyden introduced earlier this week an amendment to an omnibus spending bill that would suspend funding for TIA pending Congressional review.

Nine organizations, including the Electronic Frontier Foundation (EFF), ACLU, the Electronic Privacy Information Center, the Center for Democracy and Technology, and the Free Congress Foundation, sent a letter opposing TIA to the leaders of the House Armed Services Committee on Tuesday.

Once implemented, TIA would be used to mine data in financial, education, travel, medical, veterinary, transportation, communications, and housing records -- potentially including every banking transaction, every credit card use, every doctor visit, and every phone call, email, or Internet search.

"TIA's motto is 'knowledge is power.' What would J. Edgar Hoover have done with this kind of power?" said EFF Senior Staff Attorney Lee Tien. "History tells us that government agencies can't be trusted with unregulated surveillance power. EFF applauds those members of Congress who are taking action to prevent electronic fishing expeditions into our daily lives."

Last November, Senator Feinstein called for "close oversight" of TIA, warning that "it could lead to an Orwellian America, where a person's every move is tracked by the Government." Senators Chuck Grassley and Tom Harkin have criticized TIA, and Senator Susan Collins has said that TIA "raises extraordinary concerns about individual privacy."

Senators Leahy, Feingold, and Cantwell also requested detailed information about the Justice Department's data-mining activities last Friday.

DARPA documents indicate $240 million in spending on the TIA project for fiscal years 2001-2003. The TIA web page until recently featured a logo depicting an all-seeing eye above a pyramid overlooking the globe, as well as the bios of key project participants.

Admiral John Poindexter, whose five felony convictions for participation in the Iran-Contra Affair were overturned in exchange for testimony against his colleagues, heads the TIA program.

The Feingold bill would also suspend programs similar or related to TIA in certain agencies and may reach the CAPPS II air traveler profiling program run by the Transportation Security Administration (TSA), now part of the Homeland Security Department.

TSA told Congress last year that CAPPS II will data-mine every air passenger's travel history, living arrangements, and other personal and demographic information. It was tested at the Salt Lake City Olympics and is scheduled to be implemented this year.

"TIA is extremely dangerous to civil liberties, but CAPPS II is a much more immediate threat," Tien said.

Links:
For this release:
http://www.eff.org/issues/privacy/tia/20030115_pr.php

Legislation introduced for TIA data-mining moratorium (coming soon):
http://www.eff.org/issues/privacy/tia/20030115_legislation.php

Letter from organizations opposing TIA:
http://www.eff.org/Privacy/TIA/duncan-hunter-letter.php

EFF action alert opposing TIA:
http://action.eff.org/

More information on TIA:
http://www.eff.org/Privacy/TIA/

DARPA TIA website:
http://www.darpa.mil/iao/TIASystems.htm

Congressional letters on TIA:
http://www.eff.org/issues/privacy/tia/#documents

Center for Public Integrity analysis of TIA:
http://www.public-i.org/dtaweb/report.asp?ReportID=484

Hollywood Not on the Same Planet as ReplayTV Fans

Planet Replay Retreats, Concerned for User Privacy

San Francisco, CA - PlanetReplay.com, a website popular with digital video recorder (DVR) fans, shut down part of its operations recently fearing a lawsuit by Hollywood and violation of users' privacy rights.

After intense questioning by entertainment company lawyers on Tuesday, Planet Replay site operator Chad Little removed a part of the site that helped ReplayTV owners share shows. The lawyers asked about site content and user data, so Little feared for users' privacy and worried that the entertainment companies could sue him claiming the website helps copyright infringement.

In a statement on the PlanetReplay.com site, Little wrote, "Based on the questions they asked me at my deposition, the fact that I do not want my users to be sued or their privacy put at risk, and that I myself do not want to be sued, the portions of PlanetReplay.com relating to sharing shows have been taken down until further notice."

The questioning occurred during a deposition for the entertainment industry lawsuit against ReplayTV and SONICblue.

Many ReplayTV owners found Planet Replay helpful for a variety of activities. For example, since ReplayTV permits users to record only one show at a time, ReplayTV owners sought a way to obtain a show that aired simultaneously with another show they had recorded.

"This is yet another example of Hollywood continuing their campaign to chill new and emerging technologies to the detriment of consumers," said Ira Rothken, co-counsel with the Electronic Frontier Foundation (EFF) for Craig Newmark and four other ReplayTV owners suing the entertainment companies to clarify their rights to record television programs and to skip commercials using DVRs.

"ReplayTV owners are some of Hollywood's best customers," added EFF Staff Attorney Gwen Hinze. "ReplayTV owners are caught in the crossfire of Hollywood litigation seeking to stifle innovators of new consumer-friendly technologies."

Links:
For this release:
http://www.eff.org/IP/Video/Newmark_v_Turner/20030117_pr.php

Planet Replay website:
http://planetreplay.com/

More information about the ReplayTV case:
http://www.eff.org/IP/Video/Newmark_v_Turner/

EFF Releases Update to "Unintended Consequences: Four Years Under the DMCA"

The EFF has released an updated version of "Unintended Consequences: Four Years Under the DMCA," which collects reported stories where the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) have been invoked not against copyright pirates, but against consumers, scientists, and legitimate competitors. The complete text of the report can be found at:
http://www.eff.org/IP/DMCA/20030102_dmca_unintended_consequences.html

Since they were enacted in 1998, the anti-circumvention provisions of the DMCA, codified in section 1201 of the Copyright Act, have not been used as Congress envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protections added to copyrighted works and to ban black box devices intended for that purpose.

In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities rather than to stop copyright piracy. This report gathers these abusive uses of the DMCA together into one document. Section 1201 Chills Free Expression and Scientific Research.

Experience with Section 1201 demonstrates that it is being used to stifle scientific research and free speech. Particularly troubling is the effect that the DMCA has had on legitimate computer security research. This led Cyber Security Czar Richard Clarke to call for DMCA reform. Another widely-reported example involved threats by the recording industry against Princeton Professor Edward Felten's team of researchers when they attempted to publish a scientific paper describing weaknesses in certain digital watermarking technologies. Section 1201 Jeopardizes Fair Use.

By banning all acts of circumvention and all technologies and tools that can be used for circumvention, section 1201 grants to copyright owners the power to unilaterally eliminate the public's traditional fair use rights. Already the music industry has begun deploying unlabeled copy-protected CDs that curtail consumers' ability to make legitimate, personal copies of music they have purchased. The motion picture industry, moreover, has taken the position that any consumer copying of DVDs, whether for legitimate back-up or fair use purposes, is banned by the DMCA. Section 1201 Impedes Competition and Innovation.

Rather than focusing on pirates, many copyright owners have chosen to use the DMCA to hinder their legitimate competitors. Recently, Lexmark invoked the DMCA in an effort to eliminate the market for aftermarket laser printer toner cartridges. In another example, Sony has invoked section 1201 to protect their monopoly on Playstation video game consoles, as well as their "regionalization" system limiting users in one country from playing games legitimately purchased in another.

Links:
Unintended Consequences Report:
http://www.eff.org/IP/DMCA/20030102_dmca_unintended_consequences.html

Norwegian Teenager Jon Johansen Acquitted in DVD Case

Legal to Descramble his DVDs on Linux Computer in Norway

Oslo, Norway - A Norwegian criminal court recently acquitted Jon Johansen, a Norwegian teenager who faced criminal charges for helping to write and publish a DVD descrambling program. Johansen used the program called DeCSS to watch his own DVDs on his Linux computer.

After a request from the Motion Picture Association of America (MPAA), the Norwegian Economic Crime Unit (OKOKRIM) had charged Jon Johansen for unscrambling DVDs using DeCSS in 1999 when he was 15 years old.

"The Norwegian court has recognized that Jon has the right to take the steps necessary to view his own DVDs on his own computers," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "Johansen's acquittal, along with that of Russian company Elcomsoft in the U.S. last month, will hopefully convince Hollywood to stop filing unfounded charges in cases where there is no copyright infringement."

EFF assisted Jon in locating Norwegian counsel and setting up a defense fund.

"The court has made a very solid legal and factual ruling," noted Halvor Manshaus of the Norwegian law firm Schjodt, which represented Johansen in the case. "It helped tremendously that the lead judge was assisted by two expert judges who are computer specialists."

Johansen was charged with violating the Norwegian Criminal Code section 145(2), which outlaws breaking into another person's locked property to gain access to data that no one is 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 to prosecute only individuals who violated someone else's secure system, like a bank or telephone company system, in order to obtain another person's records.

The three-member Oslo City Court unanimously ruled to acquit Johansen. The Norwegian prosecutors have said they will decide within two weeks whether to appeal the verdict.

Johansen's indictment came more than two years after the MPAA initially contacted OKOKRIM 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 stored. The charges against Johansen's father were later dropped.

Links:
For this advisory:
http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/ 20030107_eff_pr.html

More on the Johansen case:
http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/

Free Jon email list:
https://owl.eff.org/mailman/listinfo/free-jon

Information on related DVD CCA cases:
http://www.eff.org/IP/Video/DVDCCA_case/

US Supreme Court Says Californians Can't Sue Texas Resident

Reverses Stay on California Supreme Court DVD Decision

San Francisco - The U.S. Supreme Court this week reversed an earlier temporary hold on a case involving DVD descrambling. The U.S. Supreme Court upheld a California Supreme Court decision ruling that the entertainment industry cannot force a Texas resident who published a software program on the Internet to stand trial in California.

The California Supreme Court decided on November 25, 2002, that Matthew Pavlovich, who republished an open source DVD-descrambling software program called DeCSS, will not have to defend a trade secret lawsuit simply because he knew that his publication could cause "general effects" on the motion picture and technology industries in California. The court laid out clear jurisdiction rules for claims arising from publishing information on the Internet.

"The entertainment companies should stop pretending that DeCSS is a secret," said EFF Legal Director Cindy Cohn. "The Supreme Court wisely recognized that there is no need for an emergency stay to prevent Mr. Pavlovich from publishing DeCSS."

The Pavlovich decision is one piece of a larger legal struggle over Internet publication of DeCSS by thousands of individuals in fall 1999. European open source developers created DeCSS so they could play their DVDs on Linux computers, among other uses. DVD CCA, the sole licensing entity for a DVD-scrambling technology called CSS, sued hundreds of named and unnamed individuals and entities in the case on December 27, 1999.

Allon Levy, an attorney with San Jose's Hopkins and Carley, represented Pavlovich pro bono with support from the Electronic Frontier Foundation (EFF).

The decision also impacts the numerous other defendants named or served in the legal struggle, all but one of whom are located outside California. The appeal of the preliminary injunction entered against the sole California resident named in the case, Andrew Bunner, is awaiting an argument date before the California Supreme Court.

DeCSS is free software that allows people to play DVDs without technological restrictions, such as region codes and forced watching of commercials imposed by movie studios.

Norwegian teenager Jon Johansen originally published DeCSS on the Internet in October 1999.

Links:
For this release:
http://www.eff.org/IP/Video/DVDCCA_case/20030103_eff_pavlovich_pr.html

California Supreme court opinion on the Pavlovich case:
http://www.eff.org/IP/Video/DVDCCA_case/20021125_pavlovich_opinion.html

More information on DVD CCA (Bunner and Pavlovich) cases:
http://www.eff.org/IP/Video/DVDCCA_case/

Nomination Call for EFF Pioneer Awards - Deadline Feb 1st

The Electronic Frontier Foundation established the Pioneer Awards to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology.

The International Pioneer Awards nominations are open to both individuals and organizations from any country.

All nominations are reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

The 12th Annual Pioneer Awards in 2003 will be held in New York, NY in conjunction with the Computers, Freedom and Privacy Conference (CFP) during the first week in April.

2002 EFF Pioneer Award winners were:

• Dan Gillmor
• Beth Givens
• the DeCSS authors
  • Johansen acceptance speech (large mpg 20MB)
  • Johansen acceptance speech (small mpg 12MB)

How to Nominate Someone for 2003

You may send as many nominations as you wish, but please use one e-mail per nomination. You may submit your entries 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, and plain text format.

Nominee Criteria

There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:

1. The nominees must have contributed substantially 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 also nominate yourself or your organization.
5. To be valid, all nominations must contain your reason, however brief, for nominating the individual or organization, a means of contacting the nominee, and your own contact information. Anonymous nominations are accepted, but we'd ideally like to contact the nominating parties in case we need further information.
6. Persons or representatives of organizations receiving an EFF Pioneer Award will be invited to attend the ceremony at the Foundation's expense.

Links:
Submissions may be sent to pioneer@eff.org

Pioneer Award Site:
http://www.eff.org/awards/pioneer.html

CFP 2003 Site:
http://www.cfp2003.org/

Deep Links

Deep Links features noteworthy news items, victories, and threats from around the Internet.

• Another Reason to Repeal the DMCA
  The most important copyright case of the last decade went the wrong way this week.
• Mickey Mouse Clubbed
  On the lighter side, Mickey Mouse snuck away from the theme park long enough for a beer and an interview.
• Bill Moyers Does Digital
  No "link" here per se, but the January 17th episode of "NOW with Bill Moyers" will have a discussion of intellectual property post-Eldred. Check your local listings.
• Why Johnny Can't Listen to CDs (PDF)
  John Halderman's terrific article on those copy-protected, computer crashin', shiny plastic discs that the record companies are trying to pass as CDs.
• Skipping Ads? TV Gets Ready to Fight Back
  The New York Times looks at alternatives to the traditional TV advertising model. (free registration may be required)
• FCC's Powell declares TiVo 'God's machine'
  The personal video recorder (PVR) movement has a new, powerful convert.
• UK Pulls Ahead in Race for Fascist ID Cards
  But the good folks at the Stand are in hot pursuit. Be sure to voice your opposition if you live on that side of the pond!
• This Is Your Deep Link on P2P
  EFF's newest attorney, Wendy Seltzer, gets quoted in this piece about deep linking.

Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
  http://www.eff.org/

Editor:
Ren Bucholz, Activist
  ren@eff.org

To Join EFF online, or make an additional donation, go to:
  http://www.eff.org/support/

Membership & donation queries: membership@eff.org
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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 & articles may be reproduced individually at will.

To change your address, please visit http://action.eff.org/subscribe/. From there, you can update all your information. If you have already subscribed to the EFF Action Center, please visit http://action.eff.org/action/login.asp.

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