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[FYI] EFF ssembling Legal Team to Defend Targets
- To: debate@fitug.de
- Subject: [FYI] EFF ssembling Legal Team to Defend Targets
- From: "Axel H Horns" <horns@t-online.de>
- Date: Wed, 29 Dec 1999 11:01:55 +0200
- Comment: This message comes from the debate mailing list.
- Organization: PA Axel H Horns
- Reply-to: horns@t-online.de
- Sender: owner-debate@fitug.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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