EFFector       Vol. 14, No. 35       Nov. 7, 2001      editors@eff.org     
                                                                               
 A Publication of the Electronic Frontier Foundation     ISSN 1062-9424     
                                                                               
In the 195th Issue of EFFector (now with over 29,600 subscribers!):

  * 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


In a tremendous victory for freedom of speech on the Internet, a
California appellate court today unanimously overturned a trial court's
injunction banning dozens of individuals from publishing on their
websites DeCSS computer code that unscrambles DVDs. Unscrambled DVDs may
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
publishers of the software to remove it from the web on a preliminary
request by the major movie studios' DVD licensing organization, DVDCCA.
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
in 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
paves the way for preserving liberty online by balancing legitimate
restrictions with First Amendment guarantees," stated Robin Gross, an
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
request for a preliminary injunction on January 21, 2000, and ordered
defendants to remove DeCSS from their personal websites. The case is
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,
Professor Eben Moglen of Columbia University Law School, and Electronic
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
provisions. Dean Kathleen Sullivan of Stanford Law School argued that
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
1990, EFF actively encourages and challenges industry and government to
support 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:
  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
information, 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

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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
public's right to communicate," said EFF Senior Intellectual Property
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.

29 of the world's largest entertainment companies have sued MusicCity,
the Nashville-based developer of the leading peer-to-peer file-sharing
product Morpheus, in federal court in Los Angeles. Morpheus is a
file-sharing tool that allows users to connect with each other and share
information of all kinds. The entertainment companies claim that
MusicCity should be held responsible for the alleged copyright
infringements 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.

In the early 1980s, the motion picture industry tried to outlaw VCRs by
claiming that Sony should be held liable for the infringing activities
of Betamax users. The U.S. Supreme Court rejected this effort to stifle
innovation, holding that so long as the technology is "capable of
substantial noninfringing uses," vendors can build and sell it without
fear of copyright litigation from entertainment companies. The lawsuit
against MusicCity will likely be the pivotal test for the Betamax rule
in 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,"
said Andrew Bridges, attorney with the Silicon Valley law firm of
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
profit from the new videotape recorder technology."

Peer-to-peer file-sharing technology platforms like Morpheus are not
only capable of noninfringing uses, but are being used for noninfringing
purposes today.

The case, captioned Metro-Goldwyn Mayer v. Grokster, No. 01-CV-8541 SVW,
is 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
distribute peer-to-peer file-sharing software built on the same
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
1990, EFF actively encourages and challenges industry and government to
support 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:
  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
product/service endorsements.]


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

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CALL FOR ACTION - SAFEGUARD COMMUNICATIONS PRIVACY

Privacy Groups Seek Additional Organizational Signatories

  * 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

12 November 2001

Prime Minister Guy Verhofstadt
President, EU Council of Ministers
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
President Bush that the proposed EU directive on the protection of
privacy in the electronic communications sector (COM(2000)385) be
altered to allow for data retention regarding the communications of
Europeans and consequently of Americans. While we support the
President's efforts to take appropriate steps to reduce the risk of
terrorism and to work with government leaders to protect public safety,
we do not believe that this proposal is appropriate or necessary.

First of all, under United States law there is no similar obligation for
data retention by telecommunications companies. US federal law
recognizes a need to preserve data once a particular investigation is
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
Parliament have opposed efforts to create new data retention
obligations. In the letter of 7 June 2001 to Mr. G ran Persson,
President of the Council of the European Union, the Chairman of the
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."

In a July 2001 report by the European Parliament Committee on Citizens'
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
in 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
reason as to why such information was needed, and that information
should not be stored longer than was necessary for the transmission of
data and for traffic management purposes.

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
risk, if this proposal goes forward, that US law enforcement agencies
will seek data held in Europe that it could not obtain at home, either
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
destroyed upon the completion of its intended use creates new privacy
and security risks for citizens. Vast databases of personal data now
include sensitive medical information as well as data revealing
political opinions, religious and philosophical beliefs. These new
retention requirements will create new risks to personal privacy,
political freedom, and public safety.

Further, the privacy commissioners have recognized that one of the best
privacy safeguards is to minimize the collection of personal data where
possible. They have consistently affirmed that confidentiality of
communications is one of "the most important elements of the protection
of the fundamental right to privacy and data protection as well as of
secrecy of communications", and that "any exception to this right and
obligation should be limited to what is strictly necessary in a
democratic society and clearly defined by law." A blanket retention of
all traffic data for hypothetical criminal investigations and for a long
period of time would not respect these basic conditions.

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

Finally, we believe it is inconsistent with well established
international 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
private information for surveillance purposes. Confidentiality of
communication is a central tenet of modern democratic society. Proposals
to reduce the privacy of citizens will undermine the strength of the
democratic state.

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

Proposal for a European Parliament and Council directive concerning the
processing of personal data and the protection of privacy in the
electronic communications sector (COM(2000) 385 - C5-0439/2000 -
2000/0189(COD))
  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
Persson, Acting President of the Council of the European Union, June 7,
2001 Available at:
  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
privacy in the electronic communications sector of 12 July 2000 COM
(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
in 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

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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

Please note that those under 13 years of age and anyone employed by EFF
are not eligible to participate. EFF thanks DMH for coding the contest
Perl scripts. The contest will run for one week or until the next
EFFector announcing the contest winners, whichever comes first.

It's a great way to learn about the work EFF does and a chance to win an
EFF collector's item at the same time.

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EFF SEEKS SYSTEMS DONATIONS

EFF is looking for PC systems donations with the following minimum
requirements. Please don't offer junk computers because we already have
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

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ADMINISTRIVIA

EFFector is published by:

The Electronic Frontier Foundation
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+1 415 436 9333 (voice)
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  http://www.eff.org/

Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
  editors@eff.org

To Join EFF online, or make an additional donation, go to:
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________________________________________________________________________