EFFector Vol. 15, No. 33 October 25, 2002 ren@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 232nd Issue of EFFector: * Hollywood Loses Bid to Limit Representation in ReplayTV Case * Electronic Frontier Foundation Helps Dive Shop Resist Feds * Share Your DMCA Horror Stories * EFF Needs Your (Tax-Deductible) Equipment Donations! * Deep Links (8): Microsoft Using Kazaa as a Marketing Portal * 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! ------------------------------------------------------------------ * Hollywood Loses Bid to Limit Representation in ReplayTV Case Electronic Frontier Foundation Gains Access to Lawsuit Docs Los Angeles - A federal court last week affirmed the right of the Electronic Frontier Foundation (EFF) to represent ReplayTV owners in their lawsuit against 28 motion picture and television industry companies. Craig Newmark of craigslist.org and four other ReplayTV customers are suing the entertainment companies to clarify their rights to record television programs and to skip commercials using digital video recorders (DVRs). Hollywood representatives have publicly stated that skipping commercials is "stealing." The ReplayTV customers are represented by EFF attorneys and Ira Rothken of the Rothken Law Firm. The entertainment companies tried to prevent EFF attorneys from accessing the vast majority of documents that the court ordered the companies to produce as part of the legal discovery process. EFF attorneys sought access because they believe these documents are critical to preparing the ReplayTV owners' case. The entertainment companies claimed that EFF is a "competitor" with Hollywood because of its public statements about copyright law policy and advocacy to Congress on pending and current technology legislation, including the proposed Consumer Broadband Digital Television Promotion Act (CBDTPA). The ruling sought by the entertainment companies would have effectively disqualified EFF attorneys as legal counsel for the ReplayTV owners in this case. After hearing argument from both EFF and the entertainment companies' attorneys, Magistrate Judge Eick of the U.S. District Court, Central District of California, last week ruled that EFF has the right to access the documents in question. Magistrate Judge Eick ruled that the restriction sought "would impair significantly the prosecution of the Newmark Plaintiffs' claims by effectively preventing attorneys from the Electronic Frontier Foundation from serving as litigation counsel for the Newmark Plaintiffs" and found that the entertainment companies "have failed to demonstrate a sufficiently significant disclosure-related risk or danger" from disclosure of their confidential information by EFF attorneys to justify complete denial of access. "The entertainment companies' motion was an extraordinary effort to prevent EFF attorneys from representing our clients," stated EFF Legal Director Cindy Cohn, who argued the case before Judge Eick. "We are pleased that the court upheld EFF's right to both represent our clients in litigation and to engage in public advocacy before Congress and in public arenas." "The restriction sought by the entertainment companies would have set a very disturbing precedent for the many organizations, like EFF, which engage in both public interest litigation and public advocacy," noted EFF Staff Attorney Gwen Hinze. The entertainment companies have advised EFF that they will be seeking a review of Magistrate Judge Eick's decision by Judge Florence-Marie Cooper. Links: For this release: http://www.eff.org/Cases/Newmark_v_Turner/20021015_eff_pr.html Latest court ruling in Newmark v Turner case: http://www.eff.org/Cases/Newmark_v_Turner/20021015_motion_denied.html More documents from Newmark v Turner case: http://www.eff.org/Cases/Newmark_v_Turner/ EFF Fair Use FAQ: http://www.eff.org/IP/eff_fair_use_faq.html -=end=----------------------------------------------------------- * Electronic Frontier Foundation Helps Dive Shop Resist Feds Prevents "Fishing Expedition" into Privacy of Scuba Divers San Francisco - The Electronic Frontier Foundation (EFF) recently announced that it assisted Beverly Hills scuba diving store Reef Seekers Dive Co. in resisting a federal grand jury subpoena demanding that the dive shop identify everyone who had taken, but not finished, its recreational dive classes over the last three years. After a call from the EFF indicating that it intended to defend the dive shop in court, U.S. Attorneys withdrew the subpoena, and it has not been reissued. The subpoena appears to have been based upon unsubstantiated fears that a terrorist attack using underwater explosives could be carried out by partially-trained, recreational divers. Ken Kurtis, co-owner of Reef Seekers, stated: "The scenario the FBI was painting--of divers swimming into a harbor with explosives to blow up ships--is extremely difficult and far-fetched for even the most skilled and experienced diver, and would be next-to-impossible for a newly certified diver, let alone one who had dropped out of a class and never completed training." The FBI had already successfully sought information about every certified diver in the United States through the private certification organizations PADI, NAUI, and SSI. To many divers' dismay, these dive organizations handed over information about their members without either seeking a legitimate subpoena or notifying their members that their privacy was being compromised. EFF Legal Director Cindy Cohn wrote an open letter to PADI pointing out its lack of care for its customers' privacy. "The rules requiring the government to issue reasonable subpoenas were enacted by Congress to provide an important check on governmental power," explained Cohn. "It is unfortunate that PADI and the other organizations did not use them to protect their members." "The Reef Seekers case indicates that, when faced with having to explain itself to a federal court, the U.S. Attorneys' Offices will not pursue broad, unfocused fishing expeditions into the lives of average Americans," concluded Cohn. EFF hopes that this example will embolden others who are facing overly broad requests for information from law enforcement to require full compliance with the legal procedures provided by law to protect both themselves and the privacy of their customers. Links: For this release: http://www.eff.org/Privacy/Surveillance/20021021_eff_pr.html For EFF's letter to PADI: http://www.eff.org/effector/HTML/effect15.19.html#III -=end=----------------------------------------------------------- * Tell Us Your DMCA Horror Stories! EFF and the U.S. Copyright Office would like to hear from people who are unable to use their digital media because of the Digital Millennium Copyright Act (DMCA). Section 1201(a)(1)(A) of the DMCA provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." Subparagraph (B) limits this prohibition. It provides that anticircumvention "shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title." The Copyright Office is tasked with determining which classes of works should be exempted from the anticircumvention provisions. From now until December 18, 2002, the Copyright Office is accepting comments on the effects of the DMCA on access to specific types of digital media. If you have difficulty making lawful use of your digital media because of technological access controls, it is very important to let the Copyright Office know by sending it comments that specifically explain these problems. Also, please contact EFF and let us know about your difficulties and we will try to incorporate your concerns into the comments EFF is submitting to the Copyright Office. It is vital that we provide the Copyright Office with numerous concrete examples of individuals whose lawful use of copyrighted works is impaired by access controls. Without concrete examples, it will be very dfficult to craft these provisions in a less restrictive way. For more information on the Copyright Office Rulemaking proceeding under the DMCA, please see: http://www.loc.gov/copyright/1201/ Contact Robin Gross with your stories: robin@eff.org -=end=----------------------------------------------------------- * EFF Needs Your (Tax-Deductible) Equipment Donations! EFF is looking for an LCD projector and some folding chairs. If you've got one or both to donate we can give you a tex-deductible receipt! Thanks for helping us make the place more hospitable. Contact Ren with questions or offers: ren@eff.org -=end=----------------------------------------------------------- * Deep Links Deep Links features noteworthy news items, victories, and threats from around the Internet. ~ Microsoft Using Kazaa as a Marketing Portal MS releases promotional videos on Kazaa in a prime of example of P2P's legitimate uses. http://www.latimes.com/technology/la-fi- micro21oct21004425,0,5120889.story ~ New Digital Fair Use Resolution in Congress Sen. Ron Wyden and Chris Cox recently introduced a "bipartisan, bicameral joint resolution that seeks to assure that the fair use rights of individuals are not eroded in the digital world." http://www.backstage.com/backstage/features/article_display.jsp? vnu_content_id=1746587 ~ Band Can't Sell Own Music on EBay Wired's Brad King reports on how Ebay's confusion about the DMCA kept one artist from selling his own music on the popular auction site. http://www.wired.com/news/digiwood/0,1412,55926,00.html ~ The Palladium Paradox MIT's technology review of Microsoft's Palladium. http://www.technologyreview.com/articles/wo_weinberger102502.asp?p=0 ~ Washington State Congressman Attempts to Outlaw GPL Members of Congress are petitioning the cyber-security czar to ban the Gnu Public License (GPL) for use in government-funded research. http://newsvac.newsforge.com/newsvac/02/10/23/1247236.shtml?tid=4 ~ CCIA letter to White House on DMCA The Computer & Communications Industry Association's letter of support for DMCA reform. http://www.ccianet.org/letters/clarke_dmca.pdf ~ Music Industry Spins Falsehood Janis Ian on why you shouldn't trust everything the music industry says about technology. http://www.usatoday.com/usatonline/20021023/4557245s.htm ~ California's Office of Privacy Protection Much useful information about both federal and state privacy laws. (EFF senior staff attorney Lee Tien is on OPP's advisory council.) http://www.privacy.ca.gov/ -=end=----------------------------------------------------------- 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 General EFF, legal, policy or online resources queries: ask@eff.org 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. 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