[FYI] EFF ssembling Legal Team to Defend Targets

["Axel H Horns" <horns@t-online.de>]

http://www.eff.org/effector/HTML/effect12.04.html#dvd

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Trade Group Files Suit Against All Identifiable Posters of or Linkers 
to Linux DVD Hack

EFF Assembling Legal Team to Defend Targets

The movie industry, through its recently activiated Digital Video 
Disc Content Control Association (DVD CCA), a trade organization 
controlling DVD patents, has filed a lawsuit in California against 
dozens of people around the world. who have published information, or 
links to information, about the DVD Content Scrambling System (CSS), 
on the Internet. As many as 500 defendants could eventually be named. 
The DVD CCA claims that the defendants are violating the 
association's trade secrets and other intellectual property rights by 
posting the source code of (or simply having links to other sites 
with the source code of) a legally reverse-engineered means of 
decoding DVD discs. An important hearing in the case has been 
scheduled for tomorrow, Wed., Dec. 29, 1999.  

Tomorrow's hearing is on whether the judge should issue a temporary 
restraining order against the defendants, who have been publishing 
information about the DVD content scrambling system in various 
locations in the US and worldwide. Any such order, if issued, would 
only apply for a few weeks, while the parties argued in court about 
whether a permanent injunction should restrict these defendants from 
publishing this information for the duration of the court case.  

It is EFF's opinion that this lawsuit is an attempt to architect law 
to favor a particular business model at the expense of free 
expression. It is an affront to the First Amendment (and UN human 
rights accords) because the information the programmers posted is 
legal. EFF also objects to the DVD CCA's attempt to blur the 
distinction between posting material on one's own Web site and merely 
linking to it (i.e., providing directions to it) elsewhere.  

These defendant individuals have been publishing legitimate, 
protected speech, including software, textual descriptions, and 
discussions of the DVD CSS. This speech is in no way copied or 
acquired from the DVD CCA's trade-secret documents. Copyrights do not 
give anyone any rights in "ideas", only in the exact form in which 
they are expressed. Trade-secret law only controls people who agreed 
to keep it secret and have been told the secret; other people remain 
free to independently discover the secret. The ideas being discussed 
and implemented were apparently extracted by having an engineer study 
a DVD product ("reverse engineering it"), which is a legal activity 
that is not restricted by any laws in most jurisdictions.  

The DVD CCA is trying to shut these speakers down by starting with 
the false assumption that reverse engineering is illegal. It is not. 
If, for example, the DVD reverse engineering had been done in Santa 
Clara, it would be legal under the 9th Circuit Court case Sega v. 
Accolade. See also the 1998 US Digital Millennium Copyright Act, 
which provides specifically in section 1201(f) that reverse 
engineering of an copy-protection encryption system is legal for 
"interoperability", which is why it was done in this case.  

The case itself is organized as a "theft of trade secrets" case; it 
doesn't use the Digital Millennium Copyright Act and doesn't appear 
to rely otherwise on copyright law. The root of the case is their 
allegation that the original reverse-engineering of the DVD CSS 
system was "improper" (paragraph 18), "unauthorized" (para. 20), 
"wrongfully appropriating proprietary trade secrets" (para. 21), 
"unauthorized use of proprietary CSS information, which was illegally 
"hacked" (para. 22). However, they provide no proof of these 
allegations, and they are unlikely to be true. If the original 
reverse-engineering was legal, which we believe is true, then the 
subsequent republication of the information is also legal, and the 
case is merely a tool to harass people exercising their legal rights. 

EFF's interest in the case is to protect reverse engineering as part 
of First Amendment protected speech. EFF legal counsel Robin Gross, 
and pro-bono counsel Allonn Levy of Huber, Samuelson will be at Santa 
Clara Superior Court tomorrow morning to represent at least two 
defendants, Chris DiBona and Andrew Bunner. EFF co-founder John 
Gilmore will also attend at the hearing tomorrow. EFF will at minimum 
provide "stop-gap" defense to avoid a temporary restraining order 
against the defendants. Following the hearing, EFF will assess the 
situation and the level of our involvement.  

EFF is committed to ensuring that individuals rights are protected, 
and free speech is a fundamental right. It would be a poor public 
policy to allow intellectual property owners to expand their property 
at the expense of free speech -- particularly when the speech in 
question elucidates how companies constrain the distribution of other 
free expression.  

The technology at issue here is the DVD Content Scrambling System 
(CSS), a technical effort to prevent people who have legally 
purchased a DVD from making completely legal copies of it for their 
own use. It is legal ("fair use") for people to make personal copies 
of copyrighted material available to them. (See, e.g., the Supreme 
Court's 1984 decision in the "Betamax" case, Sony Corp. v. Universal 
City Studios. In that case a movie studio was trying to have all 
VCR's banned from the United States because of the potential to 
"pirate" valuable movies -- just as in the current case they are 
attempting to have all reverse-engineered decoders of DVDs banned. 
The Supreme Court ruled that if VCR's have even a single non-
infringing use, they cannot be banned. It is clear that the reverse-
engineered DVD CSS has a non-infringing use, the viewing of DVDs on 
the Linux operating system.) The underlying technology is for 
censorship, for control over who can communicate what to whom. The 
DVD CSS prevents people from making illegal copies -- and also 
prevents them from making LEGAL copies, by preventing them from 
making ALL copies. The publishers are trying to take away, by 
technical means, the rights guaranteed to citizens under the 
copyright laws of many jurisdictions, including the US.  

The decoder source code at the center of the case, called "DeCSS", 
was created (by third parties, not the defendants) to enable Linux 
computers to utilize DVD drives and content, since the industry 
itself failed to produce the necessary drivers for this operating 
system. DVD CCA alleges rather unbelievably that the source code's 
real purpose is to enable illegal duplication of DVD discs. The 
industry association also misleadingly suggests that the DVD medium 
is simply a vehicle for commercial content delivery, when in fact it 
is a read-write medium intended to be used as computer storage by 
computer-using consumers, just like hard drives or writable CDs.  

We believe that the industry is mounting this legal attack merely as 
a charade to discourage the widespread adoption of the legally 
reverse-engineered information into popular open source software 
programs. They knew that their "encryption system" was weak and that 
it would not withstand scrutiny, so they kept it secret as long as 
possible. Now that it's out in the open, they are wielding legal 
clubs against anyone who attempts to write about it or use it, to 
delay the inevitable. If they wanted to keep their information 
secret, they shouldn't have made millions of copies of it and sold 
them all over the world. Instead their tactics have been to follow 
the inevitable disclosure by swift oppression, using large bankrolls 
to send lawyers against little people. But the little people are part 
of the Linux community and the Internet community, which have made 
billions of dollars recently, and are not kindly disposed toward 
oppression.  

[...]

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