EFFector Vol. 13, No. 4 Apr. 3, 2000 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
IN THE 152nd ISSUE OF EFFECTOR (now with over 23,000 subscribers!):
* Changes at EFF
+ EFF Past and Present
+ EFF in Transition
+ EFF Tomorrow
* Ace Attorney Enters Battle Over DVDs
* EFF Reply Comments to Copyright Office on DMCA Rulemaking
+ [Introduction]
+ Digital Equivalent of First Sale Rule - "First Access" Rule
+ Right to Make Digital Fair Use
+ Response to Copyright Industry Comments
* Administrivia
For more information on EFF activities & alerts: http://www.eff.org
_________________________________________________________________
Changes at EFF
Dear EFF members,
EFF is going through some changes, and we wanted to let you all know
what's happening. The rest of this EFFector continues our editorial
focus on cyberspace policy issues.
EFF Past and Present
As most of you know, EFF was founded almost 10 years ago to defend
innocent computer users and companies against vastly overzealous raids
and judicial actions by the U.S. Secret Service.
Since then, EFF has fought a hard decade to defend fundamental rights
that have been put at risk by the online revolution and by reactions
to that revolution -- both in government and the corporate world. EFF
also acts to preempt such reactions, through public education and
policy analysis that are done before trouble erupts.
Doing this is hard work, and the electronic frontier is more chaotic
than ever, even though - or perhaps because - it is vastly more
populated today than it was in 1990.
EFF in Transition
EFF is a unique organization, supported almost entirely by members and
donors, and working in the true public interest on vital and active
issues. This broad public base of supporters is our constituency, and
we are neither simply a foundation-supported think tank nor
industry-funded special interest lobby.
We know you want us to fight the good fight for fundamental rights in
the online world. This, with your support, we will continue to do.
There have been some EFF leadership changes, and new hires in recent
times. Two of the original founders and another long-term board member
have committed to continue steering the organization into a
challenging future.
Issues and cases that warrant EFF involvement come up literally on a
daily basis. With so much to do, it is no surprise that over time
fundamental differences occasionally arise internally over the right
priorities, and over a long-term vision for the organization. EFF has
recently resolved some of these differences, and remains committed to
the founding principles of our mission.
Our new Chairman of the Board, Internet entrepreneur and early online
publisher Brad Templeton, joined EFF soon after its founding (and some
of you may remember his writings from the very first volume of
EFFector). He joined the EFF board in 1997. Templeton founded ClariNet
Communications Corp., the net's first and largest electronic
newspaper, in 1989 (since merged with Newsedge Corp.) He is on the
advisory board of, and is an investor in, the e-mail company Topica
and the Web user interface venture Troba, and is involved in a variety
of software development and publishing operations. Brad started the
net's most widely read newsgroup, rec.humor.funny, and authored some
of the best-known FAQs, including "Emily Postnews Answers Your
Questions on Netiquette". His home page is:
http://www.templetons.com
EFF Co-Founder and Boardmember John Perry Barlow remains as
Vice-Chairman and speaks the story of EFF around the world. Barlow is
a retired Wyoming cattle rancher, a former lyricist for the Grateful
Dead, and a Fellow at Harvard Law School's Berkman Center for Internet
and Society. He is a writer, lecturer, editor and consultant on
subjects relating to the virtualization of society, and has
contributed to and/or worked with Communications of the ACM, WIRED
magazine, Vanguard Group, the Global Business Network,Diamond
Technology Partners, and the National Computational Science Alliance.
His home page is:
http://www.eff.org/homes/barlow/
John Gilmore, Boardmember and Co-Founder of EFF, has become its
interim Executive Director. John has a long career in cyberspace civil
liberties, including more than ten years of focus on encryption
policy, in which his views have gradually gained sway. He has
substantial technical and management experience from several startup
companies, including Cygnus Solutions, which he co-founded, and which
was acquired in January by Red Hat, Inc. John also has strong ties to
the open source software community, which cares deeply about the
freedom to innovate and to publish. His home page is:
http://www.toad.com/gnu/
Additionally, EFF has brought on a Development & Marketing Director
(Tom McGuire), a Public Policy Director (Lauren Gelman), a Press
Officer (Katina Bishop), and a Membership Coordinator (Kathleen
Guneratne) in the last year, and is seeking a Legal Services Director.
EFF and Tara Lemmey, its former Executive Director, have mutually
agreed to part ways, but will continue working together on important
upcoming projects. Tara will be dedicating her full energies to a
spinoff known as Project LENS (Law, Economics, Nature & Self) which
she initiated in 1997. Project LENS will be hosting a conference on
identity and related issues such as biometrics and privacy in October
of this year. EFF will be a founding sponsor of this conference.
EFF will immediately conduct a search for a permanent Executive
Director. We are still deciding on the qualifications of a successful
candidate. Interested parties can send email to search@eff.org.
EFF Tomorrow
EFF continues to pursue its long-term mission of educating the public,
policymakers, and courts about the issues that arise when traditional
expectations conflict with the new worlds created by computers and the
Internet. We remain focused on civil liberties and civil
responsibilities in cyberspace. We continue to offer legal advice and
referrals, a large archive of current and historical online civil
liberties information, and information for the press and policymakers
about the long-term issues that arise in the many short-term conflicts
that come up on the Net.
Our board members John Perry Barlow and Esther Dyson have been writing
and speaking about the conflicts between intellectual property
protection and free speech for years. These issues have come to a head
in the last year, providing a new area for EFF's activities. Other
articles in this EFFector discuss some of the issues involved.
Our path is not an easy one. Every day we learn that if we don't step
forward to defend freedom to speak, freedom to encrypt and the rights
of privacy, often nobody will. The issues are contentious and the
times are "interesting" in the sense of the Chinese curse.
We thank you, our members, supporters, and subscribers, for helping us
bring some order to the frontier as it continues to evolve at high
speed. We pledge to continue "fighting the good fight" to keep
cyberspace a safe place for civil liberties, and to teach everyone
what it means to act responsibly online.
John Gilmore, Interim Executive Director
Brad Templeton, Chairman
John Perry Barlow, Vice-Chairman
_________________________________________________________________
For Immediate Release March 27, 2000
Ace Attorney Enters Battle Over DVDs
Civil Liberties Group Pairs with Renowned First Amendment Lawyer Martin
Garbus in the Fight for Free Expression on the Internet
Contact:
Katina Bishop
(415) 436-9333 ex. 101, Electronic Frontier Foundation
San Francisco, CA -- Martin Garbus a prominent NY First Amendment
attorney has joined the Electronic Frontier Foundation's (EFF's) DVD
legal team as head litigator in a groundbreaking case that challenges
the MPAA's controversial interpretation of the Digital Millennium
Copyright Act. Garbus's addition to the DVD legal team brings high
caliber litigation expertise to EFF's continuing fight for free
expression on the Internet.
"This is one of the most important cases of the new Millennium
concerning free expression on the Internet," stated Martin Garbus.
"The US Supreme Court will ultimately decide whether corporations or
American citizens will be able to determine what the American public
can see hear and read. This case stands for freedom, for the media,
for the people, and against selfish corporate greed. With such
fundamental rights in question, I felt compelled to get involved."
Garbus is one of the country's leading trial attorneys and a founding
partner of NY firm Frankfurt, Garbus, Klein, and Selz, PC where he has
long been engaged in the fight for civil liberties. Garbus
successfully tried complex intellectual property and media cases in
nearly every state in the country. He has appeared before the US
Supreme Court and has taught law at Columbia and Yale Universities. A
frequent contributor to major newspapers and national magazines,
including the New York Times, Washington Post, and Los Angeles Times,
Garbus also regularly comments upon current legal issues for NBC, CBS,
Time, and Newsweek.
"EFF is excited to work with such an accomplished First Amendment
litigator and to have the benefit of Garbus' court room skills
fighting for free expression online," stated Robin Gross, EFF staff
attorney. "This case represents a continuation in EFF's ten-year
battle to protect civil liberties on the 'Net. It strikes at the core
of EFF's mission to fight for free expression, the right to reverse
engineer software, and the right to publish the results without fear
of prosecution."
The motion picture industry has launched a series of legal attacks
against several Web site publishers for posting information on the
weak security of DVDs including 2600 Magazine in NY. EFF, which is
leading the defense in the cases brought in California, New York,
Connecticut, and Norway, believes that the industry continues to
inappropriately label speech about the technical insecurity of DVD's
as stealing digital copies of movies.
EFF's New York DVD Legal Defense Team consists of Martin Garbus of
Frankfurt, Garbus, Klein, and Selz; Eben Moglen of Columbia University
Law; Allonn Levy of Huber Samuelson; and Robin Gross of the Electronic
Frontier Foundation. The trial date has been set for December 5, 2000
in federal district court in New York.
EFF's work in the DVD cases is part of its Campaign for Audiovisual
Free Expression (CAFE), which it launched last year to address complex
societal and legal issues raised by new technological measures for
protecting intellectual property rights. A special fund has been
established by EFF to support the costly nature of this litigation.
Donations are tax-deductible and can be made online via EFF's Web
site.
For more information on Martin Garbus and his work, see:
http://www.fgks.com
For complete information on the MPAA and DVD-CCA cases, see:
http://www.eff.org/IP/Video
For more information concerning EFF's Campaign for Audiovisual Free
Expression, see:
http://www.eff.org/cafe
The Electronic Frontier Foundation (http://www.eff.org) is the leading
global nonprofit organization linking technical architectures with
legal frameworks to support the rights of individuals in an open
society. Founded in 1990, EFF actively encourages and challenges
industry and government to s upport free expression, privacy, and
openness in the information society. EFF is a member-supported
organization and maintains one of the most-linked-to Web sites in the
world.
_________________________________________________________________
EFF Reply Comments to Copyright Office on DMCA Rulemaking
Mr. David O. Carson
Office of the General Counsel
Copyright Office GC/I&R
P.O. Box 70400
Southwest Station
Washington, D.C. 20024
Sent via email: 1201@loc.gov
RE: REPLY COMMENTS -- Exemption to DMCA's Prohibition on Circumvention
of Copyright Protection Systems for Access Control Technologies
Mr. Carson:
[Introduction]
The Electronic Frontier Foundation (EFF) appreciates the opportunity
to submit reply comments to aid the Copyright Office in its task of
determining additional classes of works to exempt from the Digital
Millennium Copyright Act's circumvention ban. Congress acknowledged
the adverse impact likely upon individual rights from the Act's
general ban on circumvention, and instructed the Copyright Office to
exempt further classes in addition to the few exceptions listed in the
statute in order to achieve balance among interests in the digital
environment.
Because the DMCA only permits exemption under a narrow set of
circumstances, it tips copyright's traditional balance overwhelmingly
in favor of copyright holders at the expense of free expression, fair
use, and innovation. Rather than outlaw reverse engineering generally
and then selecting a few specific circumstances in which to permit the
activity, Congress should have outlawed illegal activity while leaving
legal reverse engineering intact to remain a primary driver in the
emerging information economy.
Digital Equivalent of First Sale Rule - "First Access" Rule
In order to restore the delicate balance to copyright law in a digital
environment, traditional principles such as the First Sale Rule must
be granted digital equivalents. Under copyright law's First Sale
Doctrine, copyright holders' right to control what happens to a
particular copy of a work are cut-off once the author has first placed
the work into the stream of commerce. The wisdom behind this
prohibition against perpetual control over a particular work by the
author continues despite technology's advancement to a state promising
such perfect control over all works. To grant copyright holders the
right to control all uses of works treads dangerously upon First
Amendment principles and will certainly upset copyright's balance.
Because the DMCA grants copyright holders a new right to control
access to digital works, this right must be similarly limited by a
"First Access Rule" that prohibits copyright holders from governing
each and every lawful access, use, and enjoyment of the work once
initial access has been authorized. Congress never intended, nor would
the Constitution permit copyright holders to be granted such a broad
and sweeping right to control all experiencing of creative expression.
The access right granted to copyright holders in the DMCA must be
limited to the first lawful accessing of a work and not each
subsequent lawful accessing and use of that work.
For example, when a DVD is lawfully purchased, it is implied that the
purchaser is authorized to access the file contained within the
physical media in order to view it on whatever platform that person
uses. A copyright holder should not be granted the right to control
the consumer's lawful experience with the DVD. Allowing copyright
holders to tie hardware and software together to control the
experiencing of the work as in the case of copy protection for DVDs,
eviscerates copyright law's First Sale Rule and years of careful
judicial endorsement for this limitation to the copyright holders
exclusive bundle of rights. Balance requires limitations to the
perfect control desired for by the copyright industries. Cutting off
the copyright holder's right to control the lawful purchaser's
accessing of a particular work after the initial authorization is
granted ensures that balance can be maintained and all interests are
protected by the DMCA. Therefore, the Copyright Office should define
the DMCA's access right narrowly, restricted by a First Access Rule.
Right to Make Digital Fair Use
All classes of works should be exempt from the Act's general
circumvention ban when the purpose for the circumvention is to make a
fair use or engage in another non-infringing uses. Because technology
enables copyright holders to dictate and architect the parameters for
the public's use and enjoyment of a particular work, the need to
protect society's interests in access and using the work should be
given considerable attention. Infringing uses of works can be punished
under existing theories of copyright law; so allowing circumvention
for the purpose of engaging in a non-infringing fair use would prove
harmless to the copyright holder, while it preserves the public's
interest and right to use the copyrighted expression.
Claims by the copyright industry that such broad additional rights
should be created to combat its alleged vulnerability in a digital
environment overlook the fact that technology enables copyright
holders with greater protection over their works than traditional
space ever did. Authors have never had the ability to program a book
to delete itself after a particular date or prohibit the printing or
copying of any particular page within it.
Indeed, technology provides authors with far greater power over their
works than the law has been willing to grant them. The power of
perfect control over use has never granted to an author by copyright
law. Fair use is part of copyright law's intended design. This new
power can easily be abused without substantial limitations placed upon
it to ensure that individuals' rights are preserved as well.
Therefore, the Copyright Office should recognize a broad exemption for
all classes of works where the circumvention was engaged to make a
fair use of the work. Fair use rights are as important in the digital
environment as they are in traditional space and necessary to achieve
balance in the law.
Response to Copyright Industry Comments
Comments supplied by the copyright industry recommending no
limitations be placed on the DMCA's circumvention ban undermine
Congress' express intent in instructing the Copyright Office to
rectify the danger and adverse impact it foresaw at the Act's
inception. Particularly, comments supplied by Time Warner, Sony, and
the MPAA refuse to acknowledge the potential dangers inherent in
granting such broad rights to control creative expression.
Additionally claims suggesting that copyright holders are unwilling to
distribute their works in electronic form in the absence of strong
technological protection measures ignore the numerous authors and
composers who are currently taking advantage of the popular and
nonrestrictive MP3 format to achieve super distribution of their works
and reach new audiences. Many new business models are being created
that do not rely upon the traditional property model, and the
imposition of protection measures "required" by the traditional
copyright industry interfere with the emerging models that rely upon
super distribution
Time Warner's (commonly mis-used) example that fair use would not
permit someone to break into a book store to steal a book is a
misleading and irrelevant example. If a person has already paid for
the right to view an e-book or DVD when they purchased it, she is not
breaking into a third-party's property in order to access it, as Time
Warner's example asserts. Rather, she may need to break through a
protection measure in order to view that e-book or DVD on her
particular operating system. A person reverse engineering a DVD that
she purchased (her property) is not at all analogous to the breaking
and entering into a third-party's store to access the work - one is
clearly fair use the other is clearly theft.
Time Warner also points to the Content Scrambling System (CSS) used to
prevent DVDs from playing on unsanctioned players. Time admits that
the strategy for CSS protection is to restrict use and exercise
control even after access is authorized: "Other technological
measures, such as CSS, carry certain obligations to restrict copying
and further distribution of content once access is authorized." (Time
Warner Comment, page 3). But granting such absolute protection is
dangerous and not within the ambit of copyright's objective. CSS and
other schemes which attempt to grant copyright holders the right to
dictate the terms of fair use to the public, hardly seem very fair or
supportable by copyright law principles.
Time also admits that DVDs are a unique medium and their introduction,
"provided much information that could not be included in VHS tapes."
(Time Warner Comment, page 4). Considering the uniqueness and
unavailability of the works in other formats, an inability to
circumvent DVDs to make fair use of them renders the privilege
meaningless, despite the DMCA's explicit language and commitment to
support fair use rights in an electronic environment. Time assures
that no "proper uses" will be hampered, but what Time considers
"proper" is not the same as what a federal judge would consider fair
and thus legal. Granting the copyright industry the right to determine
what uses are "proper" and therefore authorized, grants extremely
broad and unprecedented rights over access and use of information.
Sony's comment warns that any rulemaking exemption to the DMCA's
prohibition against circumvention will jeopardize the US's obligations
under the WIPO treaty. However, US copyright law provided for adequate
protection for copyrighted works prior to its adoption of the WIPO
treaty using traditional copyright infringement legal theories. In
actuality, the US had granted among the strongest protection for
intellectual property in the world prior to WIPO. Recognizing the need
for additional exemptions will allow the US to maintain strong and
adequate protection of IP globally, but lead the world in recognizing
the need for balance and to protect free expression, fair use, and
continue to fuel innovation.
In summary, the Copyright Office should heed the advice of the library
associations, the cryptographers, the non-proprietary software
developers, academics, and the civil liberties groups and construe the
DMCA narrowly to provide adequate protections for the interests (other
than the copyright industry) represented in the copyright bargain.
Therefore, all classes of works must be exempt from the general
circumvention prohibition when the purpose for the circumvention is to
engage in a lawful fair use of a work. The copyright holder's right of
access must also be limited by a First Access Rule guided by the
wisdom of copyright's traditional First Sale Rule. Copyright's design
in a digital world must continue to balance the competing interests
between authors, publishers, and the pubic fairly and in light of
copyright's stated objectives to promote the progress of arts and
useful sciences.
Respectfully submitted,
Robin D. Gross, Esq.
Staff Attorney, Electronic Frontier Foundation
_________________________________________________________________
Administrivia
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