Civil rights group fears effect of e-voting company's threats
By Rachel Konrad for the Associated Press.
Cindy Cohn, legal director for the Electronic Frontier Foundation, argued in federal court Monday that North Canton, Ohio-based Diebold Inc. should be barred from sending cease-and-desist letters to activists, who are publishing links to leaked documents about alleged security blunders at one of the nation's biggest e-voting companies.Judge Jeremy Fogel is expected to issue a ruling as early as this week.
Free speech advocates at San Francisco-based EFF compare the case to the groundbreaking Pentagon Papers lawsuit. The secret government study of U.S. involvement in the Vietnam War was leaked to The New York Times, sparking a 1971 Supreme Court battle pitting the government against the media.
"I'm not making a judgment about which is more important, Vietnam policy or the future of voting in a democracy," Cohn said after the hearing in federal court in San Jose. "But this is important to the public debate ... and you can't squelch it."
Computer programmers, ISPs and students at least 20 universities, including the University of California, Berkeley, and the Massachusetts Institute of Technology, received cease-and-desist letters. Many removed links to Diebold documents, but some - including San Francisco-based ISP Online Policy Group - refused, and sued Diebold.
They say the leaked documents raise serious security questions about Diebold, which controls 50,000 touch-screen voting terminals nationwide. They argue they have a right to publish the data under the "fair use" exception of the Digital Millennium Copyright Act.
OPG, which hosts at least 1,000 Web sites of nonprofit groups and individuals on 120 computer servers, also argues that the volunteer organization cannot be responsible for every link of every client.
Here is the full text of the article in case the link goes bad:
http://www.miami.com/mld/miamiherald/business/7286033.htm
Civil rights group fears effect of e-voting company's threats
RACHEL KONRAD
Associated Press
SAN JOSE, Calif. - A civil rights group fears that legal threats from an electronic voting company are having a "chilling effect" among Internet service providers, students and voting rights advocates.
Cindy Cohn, legal director for the Electronic Frontier Foundation, argued in federal court Monday that North Canton, Ohio-based Diebold Inc. should be barred from sending cease-and-desist letters to activists, who are publishing links to leaked documents about alleged security blunders at one of the nation's biggest e-voting companies.
Judge Jeremy Fogel is expected to issue a ruling as early as this week.
Free speech advocates at San Francisco-based EFF compare the case to the groundbreaking Pentagon Papers lawsuit. The secret government study of U.S. involvement in the Vietnam War was leaked to The New York Times, sparking a 1971 Supreme Court battle pitting the government against the media.
"I'm not making a judgment about which is more important, Vietnam policy or the future of voting in a democracy," Cohn said after the hearing in federal court in San Jose. "But this is important to the public debate ... and you can't squelch it."
Computer programmers, ISPs and students at least 20 universities, including the University of California, Berkeley, and the Massachusetts Institute of Technology, received cease-and-desist letters. Many removed links to Diebold documents, but some - including San Francisco-based ISP Online Policy Group - refused, and sued Diebold.
They say the leaked documents raise serious security questions about Diebold, which controls 50,000 touch-screen voting terminals nationwide. They argue they have a right to publish the data under the "fair use" exception of the Digital Millennium Copyright Act.
OPG, which hosts at least 1,000 Web sites of nonprofit groups and individuals on 120 computer servers, also argues that the volunteer organization cannot be responsible for every link of every client.
Robert A. Mittelstaedt, who represents Diebold, said the company didn't intend to stymie free speech or place onerous burdens on ISPs. He emphasized that Diebold objected to the activists and student groups' "wholesale reproduction" of 13,000 pages of internal documents.
Mittelstaedt said the file - still available on dozens of Web sites, including several overseas - gives rivals an inside look at proprietary data. He suggested voting advocates were ideologically opposed to Diebold, which refuses to publish source code.
"The plaintiffs advocate an open-source code system for elections code," Mittelstaedt said. "These materials were intended to be secret and private and proprietary."
Diebold's battle began in March, when a hacker broke into the company's servers using an employee's ID number, and copied company announcements, software bulletins and internal e-mails dating back to January 1999.
The majority of the 1.8-gigabyte file contains banal employee e-mails, software manuals and old voter record files. But several items raise security concerns that Silicon Valley programmers and voting rights advocates have been trying to publicize for more than a year.
In one series of e-mails, a senior engineer dismisses concern from a lower-level programmer who questions why Diebold lacked certification for the operating system in touch-screen voting machines. The Federal Election Commission requires such software to be certified by independent researchers.
In another e-mail, an executive scolded programmers for leaving software files on an Internet site without password protection.
"This potentially gives the software away to whomever wants it," the manager wrote.
In August, the hacker e-mailed data to voting activists, who published information on their Web logs. Wired News published an online story. The documents have been widely circulated.
Ka-Ping Yee, 27, a computer science graduate student at Berkeley who attended the hearing, said the documents make him skeptical about the U.S. elections process.
"These documents get people talking about the legitimacy of voting in America," said Yee, whose personal sites link to the data. "If a company can silence speech about a topic of extremely great importance, it could have a huge effect on all of our futures."
ON THE NET
EFF:
Diebold:
Looks like I'll have to burn her a CD and send it to her. At this point, I don't think she's listening anyway. (James and Marybeth)
Her complete testimony follows this clip from Billboard Magazine...
Courts: A Powerful Boost
By BILL HOLLAND
Billboard Magazine
September 20, 2003
WASHINGTON. D.C.- The nation's top copyright cop has strongly endorsed the record industry's right to file subpoenas and sue those who illegally download songs over the Internet.
During testimony Sept. 8 before the Senate Judiciary Committee. U.S. Register of Copyrights Marybeth Peters provided the clearest federal statement vet in support of industry efforts to combat piracy.
In addition to endorsing those efforts, spearheaded by the Recording Industry Assn. of America (RIAA), she said that if pending court cases go against the industry, Congress would have to remedy the situation.
"Mr. Chairman, make no mistake. The law is unambiguous," she said. "Using peer-to-peer networks to copy or distribute copyrighted works without permission is infringement, and copyright owners have every right to invoke the power of the courts to combat such activity."
As head of the U.S. Copyright Office, Peters is the official interpreter of U.S. intellectual property law.
She told lawmakers that a review would be necessary even if it means revisiting the underlying legal principle regarding copyrighted material put forth in the landmark 1985 Supreme Court case Sony v. Betamax. That decision gave the makers of video recording machines limited liability for any illegal copying on their devices.
Her testimony comes as the U.S. Court of Appeals is about to take up two important court challenges.
In a case being heard in Washington, D.C., Verizon argues that the record industry's use of the information subpoena process authorized in the Digital Millennium Copyright Act (DMCA) is illegal.
The other case before a federal court in Central California involves the RIAA's appeal of a lower court's ruling absolving Grokster, Kazaa and other file services from liability for content traded over their networks.
Peters made clear that in her view, the RIAA, representing copyright owners, is on solid legal ground in both cases.
"The Digital Millennium Copyright Act represents a carefully crafted and balanced bargain, which utilizes the incentives created by pre-existing doctrines to encourage all stakeholders to work cooperatively to realize the potential of the Internet while respecting legal rights," she testified.
"Taken together, the positions of Kazaa and Grokster, along with the arguments now made by Verizon, if they prevail, will leave copyright owners with little or no remedy against the most widespread phenomena of [copyright] infringement in the history of this country" she continued.
"Thus, she said, "it is incumbent upon this committee and this Congress to see that if the judiciary fails to enforce the DMCA and therefore fails to provide the protection to which copyrighted works are entitled, the legislature does."
Peters told Judiciary Committee chairman Sen. Orrin Hatch, R-Utah, that every court that has addressed the issue has agreed that such activity is infringement.
"It can also be a crime, and the perpetrators of such a crime are subject to fines and jail time," she said.
She added that efforts to "rationalize or justify" illegal behavior with allegations of inflated profits or unfair dealings with recording artists are "diversionary tactics" that do not alter the fundamental fact that they are trying to defend illegal activity.
"There are some," she said, "who argue that copyright infringement on peer-to-peer systems is not truly harmful to copyright owners and may even help them generate new interest in their products.
The law leaves that judgment to the copyright owner, and it ought not to be usurped by self-interested third parties who desire to use the copyright owner's work," she said.
Peters characterized Grokster and Kazaa, which the Central District of California ruled are not liable as secondary copyright infringers, as businesses that are "dependent upon massive copyright infringement."
"Any application of the law that allows them to escape liability for lack of knowledge of those same infringements is inherently flawed," she said. Peters added that hanging over all these cases is the Supreme Court's decision on Sony.
"It is perhaps a commentary on that opinion that almost 20 years later, we still have such uncertainty that three courts seem to interpret and apply it in three different ways," she said.
"If the case law evolves as to compel the opposite result of findings of liability for the owners of Kazaa and Grokster, I believe Sony should be revisited either by the Supreme Court or by Congress."
Statement of Marybeth Peters
The Register of Copyrights
before the
Committee on the Judiciary
United States Senate
108th Congress, 1st Session
September 9, 2003
Pornography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks
Mr. Chairman, Senator Leahy, Members of the Committee, good afternoon. It is always a pleasure to appear before this Committee and I thank you for inviting me to present the views of the Copyright Office today at this very timely hearing. As you were among the leaders in drafting and enacting the Digital Millennium Copyright Act (“DMCA”), I know that these issues are important to you, as they are to me.
I. Background
In 1999, a young man named Shawn Fanning developed a use of the Internet that allowed people to identify and copy music files from other people's computers. As you know, this model popularized peer-to-peer technology and a company called Napster tried to turn it into a profit-making business. Napster became phenomenally popular in a remarkably short period of time, boasting millions of registered users the very next year. But it quickly became clear that Napster was being used extensively (by millions of users) for the purpose of copying and distributing an unprecedented number of copyrighted works, primarily sound recordings of musical works.
That was the scene when you held a hearing on July 11, 2000, Mr. Chairman, entitled “Music on the Internet: Is There an Upside to Downloading?” At that hearing, Mr. Hank Barry, then the CEO of Napster, stated “It is my firm belief that the consumers who use Napster are not committing copyright violations.” (1) We did not agree with that assessment, (2) and we were heartened when the Ninth Circuit found that “Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction...and distribution.” (3) Napster was unable to find a way to continue operations and faded away.
The void left by Napster's departure was filled by other businesses utilizing peer-to-peer technology, such as Aimster, Grokster, and Kazaa. While some of these applications can be differentiated from Napster in terms of their internal technical operation, they still follow the same basic peer-to-peer model as Napster and it is apparent that an overwhelming number of their customers are using it for the same purpose as they and others had used Napster - copying and distributing copyrighted works. By now it is well-settled that those users are infringing copyright. Notwithstanding that, there are still some who contend that such uses are not infringing. (4)
Mr. Chairman, make no mistake. The law is unambiguous. Using peer-to-peer networks to copy or distribute copyrighted works without permission is infringement and copyright owners have every right to invoke the power of the courts to combat such activity. Every court that has addressed the issue has agreed that this activity is infringement. (5) It can also be a crime and the perpetrators of such a crime are subject to fines and jail time.
Some have tried to rationalize or justify their illegal behavior by attacking the victim with allegations of inflated profits or unfair dealings with recording artists on the part of the recording industry. These diversionary tactics do not alter the fundamental fact that they are trying to defend illegal activity that takes place on peer-to-peer networks. For those who do not have sympathy for the recording industry, there are other victims as well. Since Napster, subsequent versions of peer-to-peer networks permit infringement of the works of other copyright owners, large and small, from motion picture studios to independent photographers and needlepoint designers. With broadband connections becoming more and more widespread, it is increasingly more common that the larger files containing full-length motion pictures are copied back and forth. (6) This problem is not shrinking; it is not static; it is growing.
There are some who argue that copyright infringement on peer-to-peer systems is not truly harmful to copyright owners and may even help them generate new interest in their products. The law leaves that judgment to the copyright owner and it ought not be usurped by self-interested third parties who desire to use the copyright owner's work.
II. Copyright Liability of Peer-to-Peer Proprietors
Copyright law has long recognized that those who aid and abet copyright infringement are no less culpable than the direct infringers themselves. (7) There are two types of this secondary liability. Contributory infringement occurs when “[o]ne who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” (8) For purposes of this test, knowledge can be either actual or constructive - that is, having reason to know. (9) Vicarious liability occurs when one “has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.” (10)
Both of these concepts were brought to bear in the case against Napster. The Ninth Circuit agreed with the District Court that Napster had actual knowledge of the infringements it was facilitating from, for example, notices from aggrieved copyright owners. (11) There was little question but that Napster provided a material contribution in the form of “the site and facilities” for infringement. (12) Thus, Napster was determined to be a contributory infringer.
The Ninth Circuit also considered whether Napster was vicariously liable. It had no difficulty agreeing with the District Court that the infringing material on its network was a “draw” for customers, thus providing a direct financial benefit from the infringing activity. (13) The Ninth Circuit also agreed with the District Court that Napster had the ability to police its system, and thus that it had the right and ability to supervise its users' conduct. (14) Accordingly, Napster was found to be vicariously liable as well.
Thus it was that many felt reassured that the Ninth Circuit had confirmed that copyright law provides an effective and efficient way in which to address the massive infringements that can and do occur on peer-to-peer networks. Unfortunately, the Napster decision was not the final word on the matter.
Earlier this year, the Central District of California surprised many when it held that Grokster and Kazaa are not liable as secondary copyright infringers. (15) This decision departed from long-established precedent. For example, the court held that in order to establish contributory liability, it must be shown that “a defendant has actual - not merely constructive - knowledge of the infringement at a time during which the defendant materially contributes to that infringement.” (16) Were such a standard to be adopted it would eviscerate the doctrine of contributory infringement as it would be almost impossible to meet. It would encourage the kind of sophistry we have seen from the proprietors of some peer-to-peer applications: a denial of knowledge of infringements by their customers in the face of clear and uncontested evidence that such infringement is occurring on a mind-boggling scale. Mr. Chairman, these are people whose business plan is dependent upon massive copyright infringement and any application of the law that allows them to escape liability for lack of knowledge of those same infringements is inherently flawed.
Not only was the Kazaa decision wrong on the law, it has serious policy consequences as well. The historical doctrines of secondary liability have served copyright owners, courts, and the public well - they provide copyright owners with the ability to obtain relief against the root cause of a series of infringements without costly, inefficient, and burdensome suits against numerous individuals. (17) Without a viable doctrine of contributory liability, this option is severely curtailed and may present the copyright owner with the unenviable choice of either accepting unremedied infringements or filing numerous suits against the individual direct infringers.
If today's hearing leaves the Committee with the impression that the law is in flux with regard to the liability of proprietors of peer-to-peer technology, that is because it is. On one side is the Napster decision of the Ninth Circuit and the Aimster decision of the Seventh Circuit, both finding liability, albeit through different paths of analysis. On the other side is the Kazaa decision of the Central District of California, finding no liability for Kazaa and Grokster. Hanging over all of these cases is the Supreme Court's decision in Sony. It is perhaps a commentary on that opinion that almost twenty years later, we still have such uncertainty that three courts seem to interpret and apply it in three different ways. I believe that the correct application of the doctrines of secondary liability and the Sony case should produce findings of liability for the proprietors of Kazaa and Grokster as well as Napster and Aimster. If the case law evolves so as to compel the opposite result, I believe that Sony should be revisited either by the Supreme Court or by Congress.
III. Suits Against Individuals
Unless and until the Kazaa decision is overruled, copyright owners are faced with the unenviable choice to which I referred earlier. They can either resign themselves to unremedied infringements on a previously unimaginable scale, or they can file infringement actions against individual peer-to-peer users. The recording industry has chosen the latter route.
While copyright owners have expressed regret that they have felt compelled to take this step, they need offer no apologies. As I have already said, people who use peer-to-peer technology for the unauthorized reproduction or distribution of copyrighted works are breaking the law. Surprisingly, many people do not appear to realize this. I have long advocated more public education about copyright. In a perfect world, this could be done in classrooms and with billboards. But ours is not a perfect world, and public education can also be accomplished through enforcement of copyright.
The threats of litigation and even the publicity about the subpoenas obtained by the RIAA have made clear to everyone that the so-called “file-sharing” of copyrighted works is not an innocent activity without legal consequences. As a result, it is becoming more and more difficult for people engaged in such activity to claim that they did not know what they were doing is against the law. Of course, for some users of peer-to-peer technology, even knowledge that what they are doing is illegal will not be a sufficient disincentive to engage in such conduct. But whether or not these infringers know or care that it is against the law, the knowledge that such conduct may lead to expensive and burdensome litigation and a potentially large judgment should have a healthy deterrent effect. While we would like to think that everyone obeys the law simply because it is the law and out of a sense of obligation, we also know that laws without penalties may be widely ignored. For many people, the best form of education about copyright in the internet world is the threat of litigation. In short, if you break the law, you should be prepared to accept the consequences. Copyright owners have every right to enforce their rights in court, whether they are taking action against providers of peer-to-peer services designed to profit from copyright infringement or against the persons engaging in individual acts of infringement using such services.
IV. Statutory History and Interpretation of Subsection 512(h)
It is common sense that in order to be able to take action against the users of peer-to-peer networks, the copyright owner must know who those users are. (18) Congress foresaw this need and addressed it by including in the DMCA a process by which copyright owners can learn basic identifying information about alleged infringers from their internet service providers (”ISPs”). (19)
The DMCA began as an effort to implement the 1996 WIPO Internet treaties. (20) Neither those treaties nor any other international instrument directly address the potential secondary liability of ISPs. However, as the treaty implementing legislation moved forward in Congress, representatives of ISPs demanded that the legislation also limit their liability under such circumstances. (21) Congress heeded this call and provided the ISPs with a huge benefit - virtually no liability for qualifying ISPs. This was balanced by a carefully developed set of obligations in the DMCA. Among those balancing obligations was the requirement that ISPs “expeditiously” respond to subpoenas to provide identifying information about subscribers accused of copyright infringement so that the controversy could be settled in court.
At the time the DMCA was drafted, at least one representative of ISPs assured this Committee that ISPs desired a solution whereby “service providers and content owners...work as a partnership....” (22) It was asserted by that same representative that “[l]iability for copyright infringement should fall where it belongs, on the Web site operators, on those who create an infringing work or on those who reproduce it or perform it with actual knowledge of the infringement....” (23) The ability of copyright owners to utilize subsection 512(h) is a critical part of that partnership as is copyright owners' ability to impose liability against those who infringe copyright. It is regrettable that at least one major ISP now rejects the compromise and the balance of the DMCA.
Some now claim that the subpoena power of subsection 512(h) is inapplicable to the activity described in subsection 512(a). As the United States District Court for the District of Columbia recently held, the plain language of subsection 512(h) demonstrates that this interpretation is not correct. (24) I agree with the court's analysis.
Subsection 512(h) instructs service providers to expeditiously respond to a subpoena. The definition of “service provider” in section 512(k) always includes service providers which qualify for the safe harbor in section 512(a). The court reasoned that this demonstrates Congress' intent to apply the subpoena power to “all service providers, regardless of the functions a service provider may perform under the four categories set out in subsections (a) through (d).” (25)
It has also been argued that the subpoena power applies only to subsection 512(c) because subsection 512(h)(2)(A) requires a copyright owner to supply “a copy of a notification described in subsection (c)(3)(A)”. However, as the District Court pointed out, subsection 512(h) “is written without limitation or restriction as to its application.” (26) It does not require that a notice be delivered. Had Congress wished to limit the application of the subpoena power, it would have simply said so in the law. It did not. (27)
The statutory text confirms the policy of compromise behind subsection 512 -- that copyright owners and ISPs work together to remedy infringement. Limiting the subsection 512(h) subpoena provisions as some have proposed would remove an important tool that parties need to remedy infringement efficiently in the peer-to-peer context.
When it enacted the DMCA, Congress did not carve out an exception from subsection 512(h) for transitory digital network communications, the activity covered by subsection 512(a). Service providers which engage in that activity received the benefits and burdens of the same bargain that service providers engaged in the other activity covered by section 512 received. In exchange for a powerful limitation on liability, they undertook some obligations, including the obligation to identify alleged infringers when served with a subsection 512(h) subpoena. When you enacted section 512, you made the right choice. There is no reason for the courts or Congress to have second thoughts about that decision.
I understand that the majority if not all of the 512(h) subpoenas that have been sought, have been sought in the United States District Court for the District of Columbia. Apparently this has necessitated the clerk of that court assigning additional staff to handle the workload. I do not take a position as to whether it is appropriate for a copyright owner to go to a single district court for subpoenas to service providers located outside that district. However, I am sympathetic to concerns about efficiency of the courts and fairness to ISPs located elsewhere in the country. There would certainly be advantages to the filing of these subpoena requests in the districts in which the ISPs are located.
V. Constitutional Challenges to Subsection 512(h)
The United States has intervened in the Verizon-RIAA litigation to defend the constitutionality of the DMCA. The Copyright Office has assisted the Justice Department in this effort and we firmly believe that subsection 512(h) is appropriate and constitutional. Although I am not an expert on constitutional law and I am not here to represent the Department of Justice, I will briefly summarize the arguments the United States made in its brief to the District Court.
The claim that subsection 512(h) violates the case and controversy requirement of the Constitution is belied by a review of other federal laws providing similar procedures, at least one of which has a 150 year pedigree. (28) The 512(h) procedure is also similar to discovery in advance of federal litigation pursuant to Federal Rule of Procedure 27, which finds its origins in the Judiciary Act of 1789. (29) Further, the subpoena power provided in subsection 512(h) does relate to cognizable Article III controversies, namely potential copyright infringement action as well as a dispute between the copyright owner and the ISP over access to the subscriber information. (30)
The claim that subsection 512(h) violates the First Amendment does not withstand scrutiny. Subsection 512(h) does not proscribe spoken words or expressive or communicative conduct, (31) nor is there a realistic danger that it will significantly compromise a recognized First Amendment protection. (32) Section 512(h) merely requires a service provider to identify a person who appears to be engaging in copyright infringement, a necessary step before the copyright owner can initiate legal action. That action may range from an email or letter demanding that the alleged infringer cease and desist from the unlawful conduct to the filing of a lawsuit for copyright infringement. Section 512(h) does not offend the First Amendment any more than the filing of a lawsuit for copyright infringement. In fact, it is an essential tool for a copyright owner who intends to file such a lawsuit. Moreover, indeed, section 512 imposes sanctions on those who misuse the subpoena power, which serve to provide a safeguard. (33)
Although not addressed in the Government's briefs in intervention, I think it is important to put into context the privacy claims that some now put forward. Users of peer-to-peer networks are, by definition, opening their computers up to the world. There may be an illusion of anonymity to that activity, but we have come to learn that such connections can also make available the user's social security number, credit card numbers, and other vital information. By contrast, the 512(h) subpoena process typically involves disclosure to the copyright owner of no more than the subscriber's name, email address, phone number, and perhaps street address. This hardly seems like an invasion of privacy.
VI. Conclusion
The DMCA represents a carefully crafted and balanced bargain which utilizes the incentives created by pre-existing doctrines such as secondary liability as well as enlightened self-interest to encourage all stakeholders to work cooperatively to realize the potential of the Internet while respecting legal rights. Some are now selectively challenging key components of that bargain, particularly in the context of peer-to-peer technology. Taken together, the positions of Kazaa and Grokster, along with the arguments now made by Verizon, if they prevail, will leave copyright owners with little or no remedy against the most widespread phenomena of infringement in the history of this country. We know from past experience with Napster and current experience with Kazaa and Grokster that without a judicial remedy, this infringement will not stop, regardless of the availability of lawful alternatives. It is thus incumbent upon this Committee and this Congress to see to it that if the judiciary fails to enforce the DMCA and therefore fails to provide the protection to which copyrighted works are entitled, the legislature does.
1. Submitted Testimony, Hank Barry, p. 7 (emphasis in original).
2. See Brief for the United States as Amicus Curiae at 11, n.1, 18, A&M Records, Inc. v. Napster, 293 F.3d 1004 (9th Cir. 2001)(Nos. 00-16401 & 00-16403).
3. A&M Records v. Napster, 293 F.3d 1004, 1014 (9th Cir. 2001) (hereinafter “Napster”).
4. Los Angeles Times, “Tone Deaf to a Moral Dilemma?” (Sept. 2, 2003).
5. See Napster at 1014; In re: Aimster Copyright Litigation, 334 F.3d 643, 645 (7th Cir. 2003)(hereinafter “Aimster”); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F.Supp. 2d 1029, 1034-35 (C.D. Cal. 2003) (hereinafter “Kazaa”).
6. See Gary Gentile, “Online Movie Service Quickens Downloads,” Associated Press, September 3, 2003.
7. See Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911).
8. Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
9. Id.
10. Id.
11. Napster at 1020-21.
12. Id. at 1022 (quoting Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (hereinafter “Fonovisa”)).
13. Id. at 1023 (quoting Fonovisa at 263-64).
14. Id. at 1023-24.
15. Kazaa, 259 F.Supp. 2d 1029.
16. Id. at 1036.
17. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 437, n. 18 (hereinafter “Sony”) (citing the “dance hall cases”); Fonovisa, 76 F.3d 259 (suit against the operator of a swap meet for infringing activity of third-party vendors).
18. The existence of section 512(h) is plain evidence that Congress did not view any existing procedures by which a suit could be filed against an unknown defendant as acceptable alternatives for copyright owners.
19. See 17 U.S.C. §512(h).
20. See Hearings on S. 1121 Before the Senate Judiciary Committee, 105th Cong. 25 (statement of George Vradenburg, III) (representing “over 1,400 Internet service providers, content creators, telephone companies, among others...).
21. Id.
22. Id.
23. Id.
24. In re: Verizon Internet Services, Inc., Subpoena Enforcement Matter, 240 F.Supp. 2d 24, 30 (D.D.C. 2003).
25. Id. at 31.
26. Id. at 33.
27. Id.
28. Brief for Intervenor United States of America, p. 6, In re: Verizon Internet Services, Inc., Subpoena Enforcement Matter, 257 F.Supp. 2d 244 (D.D.C. 2003) (No. 03-MS-0040 (JDB)).
29. Id. at 10-11.
30. Id. at 9, 13.
31. Id. at 15-16.
32. Id. at 16-18.
33. Id. at 17-18.
The Free Expression Policy Project has just published a fully revised and updated edition of "The Progress of Science and Useful Arts" Why Copyright Today Threatens Intellectual Freedom - a summary of the major controversies over file-sharing, fair use, the ever-receding public domain, the "Digital Millennium Copyright Act," and more.
It's available at:
The Progress of Science and Useful Arts
Why Copyright Today Threatens Intellectual Freedom
In all, fourteen amicus briefs on Eldred's side were submitted, with a total of 141 signers. They included groups ranging from the National Writers Union and the College Art Association to the Association of American Physicians & Surgeons and Computer Professionals for Social Responsibility. Their aim was to bring home to the Supreme Court justices the real cultural costs of ever-longer copyright terms, and consequent freezing of the public domain.The brief from online archiving projects, for example, described how Internet public-domain publishing has revived countless forgotten or hard-to-find works. Archiving projects now "digitize and distribute millions of out-of-copyright books, movies, and music ... materials that commercial publishers, distributors, and rights-holders have effectively abandoned." While media companies that own the copyrights "often let these films decay and books disappear, this material is invaluable to scholars researching our history, artists developing new art forms, and anyone seeking to explore our culture."
To reclaim these works, they must be in the public domain. Finding and paying copyright owners is untenable, given the millions of documents involved. And in any case, the vast majority of works affected by the Sonny Bono law – published more than 70 years ago – "are not available from copyright owners at any price" because the owners cannot be found.
In one of the first major wins against the DMCA since the Elcomsoft Decision, a US Federal Judge has rejected a claim under the DMCA to outlaw a competing garage door opener. Judge Pallmeyer ruled against Chamberlain Group's argument that Skylink's universal garage door opener was an illegal circumvention device, stating that a homeowner has a legitimate expectation that she will be able to open the garage door if her Chamberlain transmitter is missing or malfunctions.
IP Justice has just released an information page regarding the landmark decision (Chamberlain v. Skylink). In the decision, the court denied Chamberlain's motion for summary judgment claiming that the Skylink garage door opener violated the DMCA.
The Court noted amici briefs filed by CCIA and Consumers Union, which pointed out the stifling effect the DMCA has on innovation and competition under Chamberlain's theory. The Court's Order, which denied part of Chamberlain Group's motion for Summary Judgment, is available here. Further case documents are available here.
RIAA Subpoenas and the Final Failure of the DMCA
By Ed Foster, Section The Gripelog
(via techlawadvisor.com)
The original intent of Congress was to prevent ISPs and other Internet services from having to police their users’ content for copyright infringement, and in theory it seemed a reasonable way to protect copyright holders while not unduly burdening fledgling Internet businesses.In practice, of course, it’s turned out to be anything but reasonable. DMCA “takedowns” based on flimsy or totally bogus claims of copyright infringement are a daily occurrence. And not just because of the RIAA, since movie studios, game console manufacturers, pornographers and spammers have also learned what a powerful tool the DMCA can be in the hands of those with a little knowledge of the law and no scruples. Small ISPs and web hosting services often find the need to respond to DMCA takedown orders an enormous burden, particularly if they have any sense of responsibility for their users.
All the RIAA has done with its out-of-control legal attack is to take the DMCA takedown process to its logical but absurd conclusion. Now even the biggest broadband suppliers like SBC and Verizon are saying they can’t be saddled with the substantial costs involved in responding to all the subpoenas they’re receiving from RIAA. And, as a recent lawsuit filed by SBC-subsidiary PacBell against the RIAA and several adult entertainment operations makes clear, it's not just the recording industry that can use these subpoena tactics to the detriment of ISPs and their users. After all, copyright holders come in all manner of life forms, including some very low ones.
Here is the full text of the article in case the link goes bad:
http://www.gripe2ed.com/scoop/story/2003/8/17/193749/599
RIAA Subpoenas and the Final Failure of the DMCA
By Ed Foster, Section The Gripelog
Posted on Sun Aug 17th, 2003 at 07:37:49 PM PDT
I think one point about the RIAA’s (Recording Industry Association of America) attempt to sue everyone in sight needs to be emphasized. In filing thousands of subpoenas trying to force ISPs to identify customers who may have pirated music, the RIAA has demonstrated beyond one thing: the DMCA (Digital Millennium Copyright Act) has absolutely and completely failed in its purpose.
While it’s generally recognized that the DMCA is badly flawed, most of the negative commentary has focused on the law’s ban on circumventing copyright protection systems and the resulting abuses of fair use principles. But there was a second major section (Section. 512) that the DMCA added to the Copyright Act called “Limitations on liability relating to material online.” DMCA defenders have often cited that section as being the section of the law that works, an assertion that has now been proven false by the RIAA.
Section 512 basically says that online service providers will not be held liable for copyright infringement by their users as long as they respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing …” when notified a copyright holder. The original intent of Congress was to prevent ISPs and other Internet services from having to police their users’ content for copyright infringement, and in theory it seemed a reasonable way to protect copyright holders while not unduly burdening fledgling Internet businesses.
In practice, of course, it’s turned out to be anything but reasonable. DMCA “takedowns” based on flimsy or totally bogus claims of copyright infringement are a daily occurrence. And not just because of the RIAA, since movie studios, game console manufacturers, pornographers and spammers have also learned what a powerful tool the DMCA can be in the hands of those with a little knowledge of the law and no scruples. Small ISPs and web hosting services often find the need to respond to DMCA takedown orders an enormous burden, particularly if they have any sense of responsibility for their users.
All the RIAA has done with its out-of-control legal attack is to take the DMCA takedown process to its logical but absurd conclusion. Now even the biggest broadband suppliers like SBC and Verizon are saying they can’t be saddled with the substantial costs involved in responding to all the subpoenas they’re receiving from RIAA. And, as a recent lawsuit filed by SBC-subsidiary PacBell against the RIAA and several adult entertainment operations makes clear, it's not just the recording industry that can use these subpoena tactics to the detriment of ISPs and their users. After all, copyright holders come in all manner of life forms, including some very low ones.
Ultimately, we will probably owe the RIAA a debt of thanks for what it’s done here. DMCA or no DMCA, it’s clear the RIAA legal strategy will itself ultimately fail to thwart peer-to-peer technology. But in forcing ISPs to take sides against them -- not to mention millions of Americans who must worry if they or their children are one of the subpoena targets -- the RIAA is actually helping highlight the DMCA’s failure. Even Congress must soon come to understand had badly its purposes have been perverted by the Digital Millennium Copyright Act and those who make use of it.
Here's an O'Reilly weblog I wrote a while back with some background on this situation.
New DVD 'ripper' pre-empts DMCA ruling
By Munir Kotadia for ZD Net.
DVD software developer Studio 321 is preparing to launch six new applications, including an enhanced version of DVD copying software that is the subject of a US court case brought under the controversial Digital Millennium Copyright Act (DMCA).Studio 321 is awaiting a ruling over its DVD X Copy software, which includes a facility that allows users to rip backups of movie DVDs. If the ruling goes against Studio 321, the company says this new version of the copying software will ship without the "ripper" module, which decrypts movie DVDs and allows them to be copied...
Studio 321 landed in court after taking the unusual pre-emptive step of asking a court to declare DVD Copy Plus legal. Company executives decided to file the brief last April, after reading newspaper reports in which movie-studio representatives said they planned to sue DVD-copying software makers and which mentioned 321.
The case holds important consequences not only for software developers and for the motion picture industry, but also for consumers, who face increasingly complex rules governing the uses of entertainment products.
Semaan is adamant that his company's software does not advocate piracy, saying that it helps users to protect their property. He argues that if it is legal to make back-up copies of tapes and CDs, then it should not be any different to copy DVDs. "The DMCA says that it is supposedly illegal to circumvent encryption, and while DVDs come encrypted, those other forms of media do not," said Semaan...
In May, the judge in charge of this case said she would come back with a ruling "shortly", but two months later, there is still no word. However, no news is good news for Semaan: "For us, the longer she takes the better."
Here is the full text of the article in case the link goes bad:
New DVD 'ripper' pre-empts DMCA ruling 10:17 Wednesday 9th July 2003 Munir Kotadia
http://news.zdnet.co.uk/story/0,,t269-s2137242,00.html
DVD software developer Studio 321 is preparing to launch six new applications, including an enhanced version of DVD copying software that is the subject of a US court case brought under the controversial Digital Millennium Copyright Act (DMCA).
Studio 321 is awaiting a ruling over its DVD X Copy software, which includes a facility that allows users to rip backups of movie DVDs. If the ruling goes against Studio 321, the company says this new version of the copying software will ship without the "ripper" module, which decrypts movie DVDs and allows them to be copied.
Other products in the new line-up include a DVD editing and authoring application that allows conversions to and from standard DV video, MPEG-2 and MPEG-1 formats. The company is also creating an add-in that converts Microsoft PowerPoint, as well as a CD/CDRW/DVD utility that enables data to be recovered from damaged or defective discs.
The expansion of the product range is effectively an insurance policy in case the ruling goes against the company; if the ruling does go against Studio 321, the company's main business will sustain "a hit" because it will have to make fundamental changes to its DVD X Copy and DVD Copy Plus software, said chief executive Rob Semaan.
Studio 321 landed in court after taking the unusual pre-emptive step of asking a court to declare DVD Copy Plus legal. Company executives decided to file the brief last April, after reading newspaper reports in which movie-studio representatives said they planned to sue DVD-copying software makers and which mentioned 321.
The case holds important consequences not only for software developers and for the motion picture industry, but also for consumers, who face increasingly complex rules governing the uses of entertainment products.
Semaan is adamant that his company's software does not advocate piracy, saying that it helps users to protect their property. He argues that if it is legal to make back-up copies of tapes and CDs, then it should not be any different to copy DVDs. "The DMCA says that it is supposedly illegal to circumvent encryption, and while DVDs come encrypted, those other forms of media do not," said Semaan.
Semaan explained that Studio 321's DVD X Copy software contains four anti-piracy measures that are explicitly designed to stop people using it for producing pirate movies.
Before the copy process begins, users are asked if the source DVD is a rental or borrowed copy. If the user answers yes, the software will shut down. Although this is easily bypassed -- by lying -- the second anti-piracy measure ensures that all copies produced with the software contain a disclaimer -- similar to the FBI warning at the beginning of DVDs -- that inform the viewer that they are watching a back-up copy. The disclaimer lasts for eight seconds and cannot be fast forwarded or deleted, according to Semaan.
Another deterrent is that DVD X Copy will not allow a copy to be made from a copy. Only original DVDs can be copied. But Semaan believes the most interesting deterrent is the unique 'watermark' that is embedded into each copied disk. The watermark, or fingerprint, is created from encrypting user information such as IP address and email address (both are required to activate the software and acquire the fingerprint), which means that all copied disks can be traced back to their original owner.
In general, said Semaan, he approves of the DMCA, but he has a problem with the way the law is being interpreted by the Hollywood movie makers. "We understand the need for the DMCA and we want to prevent online privacy as well. But [the Hollywood studios] have a complete stranglehold -- Congress never intended this for the law," said Semaan, who has a law degree.
If Studio 321 is forced to change its software, its users would have to download a third-party 'ripper' module from the Internet and run it before using his software to make a copy: "Customers would need to find one of the dozen or so rippers off the Internet. It would add an additional step, and would affect sales," he admitted.
In May, the judge in charge of this case said she would come back with a ruling "shortly", but two months later, there is still no word. However, no news is good news for Semaan: "For us, the longer she takes the better."
Okay so Wired News has a great story about how Orinn Hatch says one thing and does another with regard to respecting copyright laws. Perhaps now he will just admit that he didn't understand how easy it is to "violate copyright" (gasp!) unknowlingly.
Meanwhile, a link to the the real feed of the Senate Judiciary Committee Hearing on P2P and Filesharing Networks where he made his original inflammatory remarks finds its way to my mailbox. (Clip starts a little bit after 1 hour 28 minutes on the real feed when Hatch gives a little speech at the end.)
And voila, MP3s and uncompressed AIFF files of the most damning part of his little speech are born.
The "original" version was pretty quiet -- so I increased the gain and made the "louder" versions of the MP3 and AIFF files. But for you purists who would rather increase the gain on your own, I left the original in the directory.
There's also another guy talking in the beginning of the "original"-- which is edited out of the "louder" versions.
Enjoy!
Here is the full text of the article in case the link goes bad:
http://wired.com/news/politics/0,1283,59305,00.html
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Orrin Hatch: Software Pirate?
By Leander Kahney | Also by this reporter Page 1 of 1
11:56 AM Jun. 19, 2003 PT
Sen. Orrin Hatch (R-Utah) suggested Tuesday that people who download copyright materials from the Internet should have their computers automatically destroyed.
But Hatch himself is using unlicensed software on his official website, which presumably would qualify his computer to be smoked by the system he proposes.
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* Orrin Hatch: Software Pirate?
The senator's site makes extensive use of a JavaScript menu system developed by Milonic Solutions, a software company based in the United Kingdom. The copyright-protected code has not been licensed for use on Hatch's website.
"It's an unlicensed copy," said Andy Woolley, who runs Milonic. "It's very unfortunate for him because of those comments he made."
Hatch on Tuesday surprised a Senate hearing on copyright issues with the suggestion that technology should be developed to remotely destroy the computers of people who illegally download music from the Net.
Hatch said damaging someone's computer "may be the only way you can teach somebody about copyrights," the Associated Press reported. He then suggested the technology would twice warn a computer user about illegal online behavior, "then destroy their computer."
Any such technology would be in violation of federal antihacking laws. The senator, who chairs the Senate Judiciary Committee, suggested Congress would have to make copyright holders exempt from current laws for them to legally destroy people's computers.
On Wednesday, Hatch clarified his comments, but stuck by the original idea. "I do not favor extreme remedies -- unless no moderate remedies can be found," he said in a statement. "I asked the interested industries to help us find those moderate remedies."
Just as well. Because if Hatch's terminator system embraced software as well as music, his servers would be targeted for destruction.
Milonic Solutions' JavaScript code used on Hatch's website costs $900 for a site-wide license. It is free for personal or nonprofit use, which the senator likely qualifies for.
However, the software's license stipulates that the user must register the software to receive a licensing code, and provide a link in the source code to Milonic's website.
On Wednesday, the senator's site met none of Milonic's licensing terms. The site's source code (which can be seen by selecting Source under the View menu in Internet Explorer) had neither a link to Milonic's site nor a registration code.
However, by Thursday afternoon Hatch's site had been updated to contain some of the requisite copyright information. An old version of the page can be seen by viewing Google's cache of the site.
"They're using our code," Woolley said Wednesday. "We've had no contact with them. They are in breach of our licensing terms."
When contacted Thursday, Woolley said the company that maintains the senator's site had e-mailed Milonic to begin the registration process. Woolley said the code added to Hatch's site after the issue came to light met some -- but not all -- of Milonic's licensing requirements.
Before the site was updated, the source code on Hatch's site contained the line: "* i am the license for the menu (duh) *"
Woolley said he had no idea where the line came from -- it has nothing to do with him, and he hadn't seen it on other websites that use his menu system.
"It looks like it's trying to cover something up, as though they got a license," he said.
A spokesman in Hatch's office on Wednesday responded, "That's ironic" before declining to put Wired News in contact with the site's webmaster. He deferred comment on the senator's statement to the Senate Judiciary Committee, which did not return calls.
The apparent violation was discovered by Laurence Simon, an unemployed system administrator from Houston, who was poking around Hatch's site after becoming outraged by his comments.
Milonic's Woolley said the senator's unlicensed use of his software was just "the tip of the iceberg." He said he knows of at least two other senators using unlicensed copies of his software, and many big companies.
Continental Airlines, for example, one of the largest airlines in the United States, uses Woolley's system throughout its Continental.com website. Woolley said the airline has not paid for the software. Worse, the copyright notices in the source code have been removed.
"That really pisses me off," he said.
A spokesman for Continental said the airline would look into the matter.
Woolley makes his living from his software. Like a lot of independent programmers, he struggles to get people to conform to his licensing terms, let alone pay for his software.
"We don't want blood," he said. "We just want payment for the hard work we do. We work very, very hard. If they're not prepared to pay, they're software pirates."
End of story
I love the way the RIAA has already blamed a temp for the incident.
The temp, of course, was just following instructions. The RIAA was just using the same inaccurate methods it always uses to make its usual faulty assumptions about the presence of "pirated" MP3s.
This article includes the actual letters that the RIAA sent out.
Complaint From Recording Industry Almost Closes Down a Penn State Astronomy Server
By Scott Carlson for The Chronicle of Higher Education.
A case of mistaken identity by a temporary recording-industry employee looking for illegal file trading came close to shutting down an academic server at the astronomy department at Pennsylvania State University during final exams last week.On Thursday, the Recording Industry Association of America sent a Digital Millennium Copyright Act complaint to Penn State's network-security office saying that a server on the university's main campus, at University Park, was offering a song by Usher, a popular R&B artist.
The network-security office responded by sending a polite yet adamant message to Matthew P. Soccio, the manager of the astronomy department's server: Remove the song from the server or we will shut it down within 24 hours.
Mr. Soccio spent hours scouring the machine for Usher's MP3 files and found a couple of an unlikely offenders: One was a directory of files owned by Peter D. Usher, a professor emeritus of astronomy. The other was an MP3 of a goofy a cappella song about a satellite that detects gamma-ray bursts.
Mr. Soccio brought the non-results back to the network-security office and begged not to be shut down. "They were kind enough to leave us up," he says, adding that the server is used to transfer academic work. "It's the middle of finals week, so that would have killed us."
Penn State's network-security officials did not respond to calls from The Chronicle.
The recording-industry association, which regularly scours the Internet for evidence that copyrighted songs are being shared illegally, acknowledges that there was indeed a mix-up. In an e-mail statement, the association's officials said that temporary employees usually verify each complaint before it is sent out, and that an employee had made a mistake in this case. The recording industry is reviewing all of the complaints verified by that employee. The association apologized for the blunder.
Mr. Soccio, however, is still a bit irked. He spent the weekend reading up on the Digital Millennium Copyright Act, and compared the recording-industry's complaint letter with the letter of the law. "I have a problem with that complaint on a couple of different levels," he says. "The DMCA is pretty clear about needing complainants to specify the files in question and the copyright in question, and that complaint does neither of those. That letter just points to the top level of my server and says I should look for 'artists like Usher.' I don't know what that means." Until Thursday, Mr. Soccio had never heard of the R&B star.
The experience has turned Mr. Soccio into an activist. He plans to send letters to Congressional representatives, and is circulating the texts in his department, seeking signatures from professors and other employees. The letters will ask Congress to strengthen fair-use laws and protections for institutions under the DMCA, he says.
Here is the full text of the article in case the link goes bad:
http://chronicle.com/daily/2003/05/2003051302t.htm
Complaint From Recording Industry Almost Closes Down a Penn State Astronomy Server
By SCOTT CARLSON
A case of mistaken identity by a temporary recording-industry employee looking for illegal file trading came close to shutting down an academic server at the astronomy department at Pennsylvania State University during final exams last week.
On Thursday, the Recording Industry Association of America sent a Digital Millennium Copyright Act complaint to Penn State's network-security office saying that a server on the university's main campus, at University Park, was offering a song by Usher, a popular R&B artist.
The network-security office responded by sending a polite yet adamant message to Matthew P. Soccio, the manager of the astronomy department's server: Remove the song from the server or we will shut it down within 24 hours.
Mr. Soccio spent hours scouring the machine for Usher's MP3 files and found a couple of an unlikely offenders: One was a directory of files owned by Peter D. Usher, a professor emeritus of astronomy. The other was an MP3 of a goofy a cappella song about a satellite that detects gamma-ray bursts.
Mr. Soccio brought the non-results back to the network-security office and begged not to be shut down. "They were kind enough to leave us up," he says, adding that the server is used to transfer academic work. "It's the middle of finals week, so that would have killed us."
Penn State's network-security officials did not respond to calls from The Chronicle.
The recording-industry association, which regularly scours the Internet for evidence that copyrighted songs are being shared illegally, acknowledges that there was indeed a mix-up. In an e-mail statement, the association's officials said that temporary employees usually verify each complaint before it is sent out, and that an employee had made a mistake in this case. The recording industry is reviewing all of the complaints verified by that employee. The association apologized for the blunder.
Mr. Soccio, however, is still a bit irked. He spent the weekend reading up on the Digital Millennium Copyright Act, and compared the recording-industry's complaint letter with the letter of the law. "I have a problem with that complaint on a couple of different levels," he says. "The DMCA is pretty clear about needing complainants to specify the files in question and the copyright in question, and that complaint does neither of those. That letter just points to the top level of my server and says I should look for 'artists like Usher.' I don't know what that means." Until Thursday, Mr. Soccio had never heard of the R&B star.
The experience has turned Mr. Soccio into an activist. He plans to send letters to Congressional representatives, and is circulating the texts in his department, seeking signatures from professors and other employees. The letters will ask Congress to strengthen fair-use laws and protections for institutions under the DMCA, he says.
Meanwhile, along with its apologies, the recording-industry association is sending an Usher CD and Usher T-shirt to Professor Usher.
The e-mail message to Penn State from the Recording Industry Association of America's Anti-Piracy Unit:
To: "Security"
From: RIAA Anti-Piracy
Subject: Unauthorized Music Site - Case ID 710857
Date: Thu, 08 May 2003 12:32:46 -0400
VIA EMAIL
May 08, 2003
Security
The Pennsylvania State University
University Park, PA
16802
US
Re: [IP address removed]
Dear Sirs:
I am contacting you on behalf of the Recording Industry Association of America, Inc. (RIAA) and its member record companies. The RIAA is a trade association whose member companies create, manufacture and distribute approximately ninety (90) percent of all legitimate sound recordings sold in the United States. Under penalty of perjury, we submit that the RIAA is authorized to act on behalf of its member companies in matters involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.
We believe your service is hosting the above-referenced site on its system. This site, which we accessed on 29 Apr 2003 22:07:31 EDT (GMT -0400), offers approximately 1 sound files for download. Many of these files contain recordings owned by our member companies, including songs by such artists as Usher. We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law. We assert that the information in this notification is accurate, based upon the data available to us.
We are asking for your immediate assistance in stopping this unauthorized activity. Specifically, we request that you remove the site, delete the infringing sound files or that you disable access to this site or the infringing files being offered via your system. In addition, please inform the site operator of the illegality of his or her conduct and confirm with the RIAA, in writing, that this activity has ceased.
You should understand that this letter constitutes notice to you that this site operator may be liable for the infringing activity occurring on your service. In addition, under the Digital Millennium Copyright Act, if you ignore this notice, you and/or your company may also be liable for any resulting infringement. This letter does not constitute a waiver of any right to recover damages incurred by virtue of any such unauthorized activities, and such rights as well as claims for other relief are expressly retained.
Thank you in advance for your prompt assistance in this matter. If you have any questions, please feel free to contact me via e-mail at antipiracy2@riaa.com, via telephone at (202) 775-0101, or via mail at RIAA, 1330 Connecticut Avenue, N.W., Suite 300, Washington, D.C., 20036. Please reference Case ID 710857 in any response or communication regarding this infringement.
Sincerely,
Anti-Piracy Unit
RIAA
Penn State's e-mail message to Matt Soccio:
Good Afternoon,
Our office received the following RIAA copyright complaint regarding the anonymous FTP server at [IP address removed] . The nature of the complaint is that the server is hosting a copyright-protected song by the artist Usher. Could you please locate and remove the Usher song as soon as possible (we need to take action expeditiously, or the University itself could become liable for hosting infringing material). If you are not able to do so in the next 24 hours, we will need to disable access to the machine hosting the infringing song.
If you are able to determine the origin of the song, we ask that you please provide us with the identity of the user.
Thank you,
Laurie Walters
PSU Security Operations and Services
"...I don't think the legislators who support these bills really understand the harm they would do. In my experience, if you can explain to them what the problem is, they will want to do the right thing. (They may not kill a bad bill entirely, but they will at least try to amend it to fix problems.) The hard part is to get their attention, and then to explain the problem in a manner that non-geeks can understand.The underlying problem, I think, is that geeks think about technology in a different way than non-geeks do. The differences have sunk deeply into the basic worldviews of the two communities, so that their consequences seem to be a matter of common sense to each group. This is why it often looks to each group as if members of the other group are idiots.
Here's an example. Geeks think of networks as being like the Internet: composed of semi-independent interoperating parts, and built in layers. Non-geeks tend to think of networks as being like the old-time telephone monopoly: centrally organized and managed, non-layered, and provided by a single company. It's not that they don't know that the world has changed -- if you ask them what the Internet is like, they'll say that it's decentralized and layered. But the *implications* of those changes haven't sunk deeply into their brains, so they tend not to see problems that are obvious to geeks."
Here is a partial text of the article at:
http://interviews.slashdot.org/article.pl?sid=03/04/17/1222220&mode=thread&tid=153&tid=123
-------------------------------------
1) From your discussions with them...
by burgburgburg
...do you perceive that legislators are aware of the extraordinarily
broad negative implications of these new telecommunications laws that
are being proposed/enacted?
Also, if you are aware of it, have the hardware/software manufacturers
who will be affected joined together to fight these laws, or has it
flown under their radar?
Prof. Felten:
Let me take the second part of the question first. Yes, various
manufacturers have opposed the bills. The Consumer Electronics
Association, for example, has opposed them. The MPAA has now changed the
bills in an attempt to make some of the big manufacturers happier.
As to the first part of the question:
No, I don't think the legislators who support these bills really
understand the harm they would do. In my experience, if you can explain
to them what the problem is, they will want to do the right thing. (They
may not kill a bad bill entirely, but they will at least try to amend it
to fix problems.) The hard part is to get their attention, and then to
explain the problem in a manner that non-geeks can understand.
The underlying problem, I think, is that geeks think about technology in
a different way than non-geeks do. The differences have sunk deeply into
the basic worldviews of the two communities, so that their consequences
seem to be a matter of common sense to each group. This is why it often
looks to each group as if members of the other group are idiots.
Here's an example. Geeks think of networks as being like the Internet:
composed of semi-independent interoperating parts, and built in layers.
Non-geeks tend to think of networks as being like the old-time telephone
monopoly: centrally organized and managed, non-layered, and provided by
a single company. It's not that they don't know that the world has
changed -- if you ask them what the Internet is like, they'll say that
it's decentralized and layered. But the *implications* of those changes
haven't sunk deeply into their brains, so they tend not to see problems
that are obvious to geeks.
Geeks will look at proposed network regulation and immediately ask "How
will this affect interoperability?" or "Is this consistent with the
end-to-end principle?" but non-geeks will look at the same proposal and
think of different questions. They know what interoperability is, but
it's just not at the front of their minds.
2) What sort of positive legislation?
by Viperion
Dr. Felten, do you have a suggestion as to what sort of legislation
could be introduced that would soothe the minds of reactionary lawmakers
while preserving the rights that we currently enjoy?
Prof. Felten:
Intellectual property policy is in a crisis right now, caused by
widespread infringement and the excesses of the legal backlash against
it. The biggest problem is hasty legislation that makes the crisis worse
by overregulating legitimate behavior without preventing infringement.
Obviously, it would be a positive step to repeal some of the bad laws
that are already on the books. Part of the problem is a mindset that no
matter what the problem is, the solution must be legislative.
But you asked about positive legislative steps, which is a harder
question. The holy grail here is a non-harmful proposal that reassures
legislators about the continued viability of the music and movie
industries.
If you want positive legislation in this area, the best hope is a
compulsory license, which would charge all users of the Net a small,
mandatory fee. In exchange for this, it would become totally legal to
distribute and use any audio and video content on the Net. The revenue
from the fees would be split up among the creators according to a
formula, based on how many times each work was downloaded or played. If
you do the math, the fees can be pretty small while still replacing the
revenue the music and movie industries would otherwise lose.
This is a controversial proposal. It does have drawbacks, and I'm not
quite endorsing it at this point. But if you want to cut the Gordian
knot and end the piracy wars, a compulsory license is one way to do so.
3) Network Identity
by Rick.C
One of the rumored new restrictions is that you may not mask the
identity of a network connection. In your opinion, does this refer to
the identity of each machine or the identity of the subscriber (who
might be responsible for several machines behind a firewall, e.g.)?
In other words, are we talking about "people" or "boxes"?
Prof. Felten:
Some proposed bills would make it a crime to "conceal the place of
origin or destination of a communication" from "any communication
provider." I'm not sure whether "place" means a geographic location
(such as my house) or a network address (such as my IP address) or an
identifier (such as a DNS address or email address, either of which
might correspond to a person). As far as I know, supporters of these
bills haven't said clearly which meaning they intend.
Under any of these three readings, such a ban would cause huge problems.
Lots of ordinary security and privacy measures, such as firewalls, VPNs,
encrypted tunnels, and various proxies conceal the origin or destination
of messages, either to protect privacy or as a side-effect of what they
do.
4) Prohibition of what got us here?
by Xesdeeni
Do I completely misunderstand the scope of the DMCA, or would it have
actually prohibited the actions of clone manufacturers, starting with
Compaq, when they reverse-engineered the IBM PC BIOS in 1984?
It seems this simple fact alone would highlight the ludicrous nature of
a law which would prohibit precisely the actions that provided the
current state of the industry.
Prof. Felten:
The effect of the DMCA on reverse engineering is complicated. The DMCA
does not flatly ban reverse engineering, but if you have to circumvent a
technical protection measure in order to do your reverse engineering,
then the DMCA will be an issue. The DMCA does have a limited safe harbor
for reverse engineering, but it has been widely criticized as too
narrow.
I hate to dodge your question, but I'm not really qualified to say
whether what the clone makers did would be legal under 2003 law.
5) Signal to Noise
by sterno
One of the problems I see with efforts to try to get the DMCA and
similar legislation revoked and prevented in the future, is a matter of
signal to noise. Most voters don't care about the DMCA or even know
about it, and those who do usually have to worry about more important
priorities like the state of the economy or the war in Iraq. So, my
question is, how can we possibly make the DMCA and its kin important
issues to our legislators? Sure, I can write them, but if they are given
the choice of voting for the DMCA and getting some campaign money, or
voting against and pleasing a handful of constituents, which will they
choose?
It's unlikely that the handful of consitutents is going to vote against
the candidate purely because of their DMCA stance. Personally, I'm very
against the DMCA but when the election time comes around, I'm not voting
for the anti-DMCA candidate, I'm voting for the guy who's going to fix
the economy and patch our international relationships. So how can
somebody like myself really get their voice heard by the right people
when the threat of "voting for the other candidate" isn't credible?
Prof. Felten:
In the short run, I think it's more productive to convince legislators
than to threaten them. As you say, there won't be many single-issue DMCA
voters.
But even if technological freedom issues like the DMCA aren't the only
factor in a voting decision, they still might tip the balance for some
voters in some races. Even that is enough to make a difference.
Legislators do seem to care what their constituents think, and they do
seem to have a fear of doing something that looks stupid afterward.
In the long run, I hope the public comes to see how technological
improvement flows from the freedom of technologists to learn and create.
If average voters view censorship of technologists in the same way they
view other forms of censorship, we'll be in much better shape.
6) DMCA and EUCD
by Brian Blessed
In your opinion, do residents of Europe and other US-friendly
(business-wise) areas have a hope of avoiding being adversely affected
by the DMCA (or superDMCA) or its foreign implementations (e.g. EUCD)
and is technological civil disobedience the best form of activism to
follow?
Prof. Felten:
There is still hope in Europe, but they seem to be heading for the same
kind of regulatory regime we see here in the U.S. Parts of the U.S.
government have been working hard for years to export the U.S. version
of intellectual property law to the rest of the world. All indications
are that Europe will follow us down this path.
7) Our position in the world
by TooTechy
Do you see this new legislation altering our ability to work remotely?
Will these restrictions place undue hardship on US workers when compared
with facilities in other countries? Is it likely that other countries
will evolve faster technologically as a result of these draconian
measures?
Prof. Felten:
The new regulations on technology will impose a drag on our
technological capabilities, and hence on our productivity. If other
countries are foolish enough to impose the same regulations on their
citizens (and it seems that many will be), then we'll come out even from
a competitive standpoint. More importantly, we'll all be worse off than
we could have been had we all followed better policies.
8) Strategy
by Meat Blaster
Our current methods of informing the public and the government about the
evils of the DMCA seem to be reactive and passive -- defending a
lawsuit, writing public responses to the librarian of Congress
periodically about the DMCA, setting up resources where the public if
they were so inclined could stop by and learn about the problem.
Do you feel that it would be a good time for a shift in strategy towards
more active measures such as forming a group to lobby representatives
directly, issuing mailings about the DMCA particularly to those whose
representatives support legislation like the DMCA/UCITA/SSSCA, or
beginning a television ad campaign? Such an endeavor is bound to cost a
bit, but I can't help but feel that particularly with 2004 coming up
having a bit of organized PR on our side of the debate would be quite
helpful.
Prof. Felten:
I agree that positive action is important. I view this as a two-track
process.
The first track is the one you suggest, of building up lobbying muscle
to challenge harmful regulations. This is challenging, given who is on
the other side, and given the tendency of our opponents to buy off
important players with special-purpose exceptions to their legal
regulations. (For example, the DMCA has special carve-outs for ISPs and
device makers.) We're really just starting in this area, but we need to
remember how much progress has been made since the passage of the DMCA,
which met very little organized resistance at the time.
The second track is to get better at explaining ourselves and at
persuading people that they should support our positions. Especially, we
need to do a better job of finding folks out there who are our natural
allies, and convincing them to join us on these issues, even if we
disagree about some other issues.
An example: auto parts manufacturers are worried by recent DMCA
developments, such as the case where Lexmark has successfully (so far)
used the DMCA against a maker of replacement parts for Lexmark printers.
Auto parts manufacturers are worried that the DMCA mindset, which treats
unauthorized analysis and interoperation as improper, will leak into
their world.
9) Roadblocks to IP protections?
by Xesdeeni
Doesn't the DMCA prohibit a company from investigating a violation of
their IP if the violation exists on the other side of encryption?
For example, if company M utilized a software algorithm (putting aside
the argument about software patents for the moment) inside an encrypted
data stream (audio file, video file, etc.) that was actually patented by
company A, wouldn't it be a violation of the DMCA for company A to
investigate this violation of their patent rights? And wouldn't any
evidence they uncovered in violation of the DMCA be inadmissible if they
tried to enforce their patent rights against company M?
Prof. Felten:
This sounds like a likely DMCA violation, but you'll have to consult
your lawyer to be sure.
This is just one instance of a more general problem. Laws like the DMCA
that limit the flow of information will inevitably make it harder to
find out about certain types of misbehavior. Sometimes the misbehavior
will be patent infringement. Sometimes it will be a manufacturer
misleading their customers about the quality of their product.
We value free speech because vigorous public discussion benefits
everybody, though many of those benefits are subtle and indirect. So
far, the legal system has not fully realized that speech about
technology needs to be valued as highly as speech about other topics. I
think the law will eventually catch on, as it becomes clearer to the
average person that their experience of the world, and their interaction
with the world, is mediated by technology.
10) Tell me...
by Dicky
For the love of God, man, why???
Or to put it slightly less sillily, what was (and is!) your motivation
for getting involved in this side of the Computer Science world, say, as
opposed to the nice safe, clean theoretical stuff?
Prof. Felten:
I'm not entirely sure myself. Here's the best answer I can manage:
In deciding what to work on, I really just follow my own quirky sense of
what is interesting and important. If others find the things I do
interesting and important, that's a lucky accident.
But that can't really be the answer to your question, because many of my
colleagues follow the same rule, and they end up working on different
sorts of things than I do. So I must have a different sense of taste
than they do, but I'm not sure why.
The answer doesn't lie in my personal life. When I leave work, I am not
at all a rebel or nonconformist. I have a stable, boring, happy suburban
life, which I wouldn't change for anything.
I should also point out that I do some work that fits into the
traditional academic computer science framework. But you won't read
about that on Slashdot.
He shouldn't have received any jail time for this. Drat.
I hope he appeals...
THE LONG ARM OF THE LAW REACHES OUT TO XBOX MOD CHIPS
A hefty fine and harsh jail sentence for Xbox mod chip retailer
David Rocci sold the Enigma mod chips for the Xbox on his site, IsoNews.com, and was found in breach of the US Digital Millennium Copyright Act whose draconian rules seized the site, his equipment and set the wheels of unjustice rolling. He pleaded guilty to selling illegal copyright circumvention devices under the Act.While we don't condone the ability to pirate software, this is surely an outrageous and disproportionate punishment for someone who merely facilitated people to tinker with their own Xbox. It is their Xbox once they bought it isn't it? How many people have a CD-RW in their PC - surely the multinational companies making and distributing these must be party to copying, but I doubt they're quaking in their boots. It's like going to a garage and converting your car to run on LPG, is that wrong?
The whole thing stinks. A mod chip's a mod chip and simply because it can be used for illegal purposes this makes it illegal, and this ruling is from a country that prides itself on its inalienable 'right to bear arms'; weapons which can be used for illegal purposes.
Here is the full text of the article in case the link goes bad:
http://www.computerandvideogames.com/r/?page=http://www.computerandvideogames.com/news/news_story.php(que)id=89683
Click here for more info
Wednesday 9th April 2003
THE LONG ARM OF THE LAW REACHES OUT TO XBOX MOD CHIPS
A hefty fine and harsh jail sentence for Xbox mod chip retailer
16:55 The long-awaited sentence for David Rocci, who sold Xbox mod chips on his website www.IsoNews.com has come through a month later than expected. And he has been clobbered! A $28,500 fine and five months imprisonment, followed by five months of home detention and three years of probation!
David Rocci sold the Enigma mod chips for the Xbox on his site, IsoNews.com, and was found in breach of the US Digital Millennium Copyright Act whose draconian rules seized the site, his equipment and set the wheels of unjustice rolling. He pleaded guilty to selling illegal copyright circumvention devices under the Act.
While we don't condone the ability to pirate software, this is surely an outrageous and disproportionate punishment for someone who merely facilitated people to tinker with their own Xbox. It is their Xbox once they bought it isn't it? How many people have a CD-RW in their PC - surely the multinational companies making and distributing these must be party to copying, but I doubt they're quaking in their boots. It's like going to a garage and converting your car to run on LPG, is that wrong?
The whole thing stinks. A mod chip's a mod chip and simply because it can be used for illegal purposes this makes it illegal, and this ruling is from a country that prides itself on its inalienable 'right to bear arms'; weapons which can be used for illegal purposes.
If I met someone in a dark alley with either a gun or a mod chip, I know who I'd rather bump into - legal or not.
On the bright side, US District Judge James C. Cacheris could have given Mr Rocci the maximum sentence of five years in prison and a $500,000 fine - but we think they did a good enough job of making an example of him!
The sad thing about this case and the Department of Justice running roughshod over anyone involved in Xbox mod chips is that mod chip communities, websites and projects could suddenly disappear. No more nudie DOAXBV skins? Now that would be a tragedy...
Let us know what you think of the ruling on the link below.
Nick Walkland
This just in from the EFFector:
For this release:
http://www.eff.org/IP/DMCA/20030220_1201_pr.php
Copyright Office website, including posted comments:
http://www.copyright.gov/1201/
EFF comments to Librarian of Congress and U.S. Copyright
Office
EFF volunteers special thank-you page:
http://www.eff.org/IP/DMCA/20030220_1201_thanks.php
* Public Asks Copyright Office to Allow Common CD/DVD UsesElectronic Frontier Foundation Encourages Public
CommentsSan Francisco - The Electronic Frontier Foundation (EFF) today announced that it helped 245 consumers submit comments to the Librarian of Congress and the U.S. Copyright Office requesting protection for certain ordinary uses of CDs and DVDs.
The consumer comments supported the EFF's December 18 request that the
Librarian of Congress and the U.S. Copyright Office grant four exemptions to the Digital Millennium Copyright Act (DMCA) in order to permit bypassing of certain technological protection measures for copyrighted works.Currently, the DMCA prevents users from making the following four uses
of some digital media:(1) Listening to copy-protected music CDs on certain stereos and personal computers
(2) Viewing foreign movies on DVDs on US players due to region-coding restrictions
(3) Skipping through commercials on some movie DVDs
(4) Viewing and making fair uses of movies that are in the public domain and released on encrypted DVDs
The commenters described their difficulties with the DMCA's ban on bypassing technological locks on copy-protected music CDs and movies released on DVD:
* 55 comments described problems people had experienced with copy-protected CDs, ranging from inability to play music that they had purchased to complete computer operating system crashes requiring major computer repair.
* 130 comments focused on problems playing foreign movies on region-coded DVDs. One person originally from Denmark expressed sadness and frustration at not being able to play movies his mother gave him. Others discussed special interest works, such as anime, and foreign movies that are only available outside of the United States, but unplayable on U.S. DVD players.
* Many parents wrote comments describing their concerns about unskippable commercials and promotional material in a number of Disney movies released on DVD.
* Several people also expressed frustration about the limited use that could be made of particular public domain movies, such as Charlie Chaplin's Movie Marathon, which was released on a CSS-encrypted DVD.
"The large number of comments reflects consumers' growing concerns about the DMCA and the very real impact that the law has on their lives," said EFF Staff Attorney Gwen Hinze.
"These EFF-inspired comments alone count for more than the total number of comments the Copyright Office received during the previous rule making in 2000," added EFF Activist Ren Bucholz. "We're hopeful that the Copyright Office will listen to the growing public voice demanding reasonable uses of their own CDs and DVDs."
For this release:
http://www.eff.org/IP/DMCA/20030220_1201_pr.phpCopyright Office website, including posted comments:
http://www.copyright.gov/1201/EFF comments to Librarian of Congress and U.S. Copyright
Office:
http://www.eff.org/IP/DMCA/20021218_eff_dmca_reply_comments.htmlEFF volunteers special thank-you page:
http://www.eff.org/IP/DMCA/20030220_1201_thanks.php
DMCA Takedown Notice, Scientology, and PacBell
It turns out I was given a DMCA Takedown Notice from the Church of Scientology for the Xenu.net web archive (notice that this is now a 404) I setup in December 2002...When I originally contacted SBC I was told that they couldn't reconnect my service until the "policy block" is removed. I was then given a number for policy and told to leave a message and that I would be called back within 24 hours...
Calling the number yielded a cryptic computer generated voice (which I couldn't understand) and I was then dumped right into voicemail.
I later found out that this number had been disconnected. After talking to a number of supervisors I was able to have one admit that they were redirecting customers to a disconnected phone number! Other support department supervisors said they could not help me without approval from Policy and they were not willing to believe that the number was disconnected...
I finally received a call from a *memo* sent to the Policy department. It turns out I was given a DMCA Takedown Notice. This is about 80 hours after I first noticed my problem on Monday morning...
It turns out that Scientology (I assume using Google) found me through my blog where I linked to the wayback archive running on PeerFear .
Right now the content has been moved to a temp directory and is no longer hosted on the site. I am considering my options for restoring service including moving the content to a hosting provider in a country with less draconian Copyright laws.
Here is the full text of the article in case the link goes bad:
http://www.peerfear.org/rss/permalink/2003/02/04/1044497702-DMCA_Takedown_Notice_Scientology_and_PacBell.shtml
DMCA Takedown Notice, Scientology, and PacBell
Posted on 2003-02-04 15:22:05-08
Overview
Monday February 3rd I awoke to notice that my Internet connection from PacBell/SBC had been cut (pings to the default router would fail). For someone who essentially lives on the Internet this was *devastating*. (more on this later)
Of course these things happen from time to time so I assumed it was something to do with a cut fiber connection or technical interruption.
It turns out I was given a DMCA Takedown Notice from the Church of Scientology for the Xenu.net web archive (notice that this is now a 404) I setup in December 2002.
SBC provided me with 48 hours notice but only from an email account that wasn't used. They did not try to contact me by phone or by mail. One would think that written notification would be provided but it turns out that the DMCA doesn't require this. I should note here that I pay for a *business* account and I purchase their premimum DSL package ($180 a month) and I expect they would provide better service.
To make matters worse, SBC has no policy for resolving these types of issues and I have had to spend countless hours yelling at SBC technical support representatives to have my service restored. Guilty until proven innocent.
If anyone is interested I have a copy of the DMCA Takedown here .
Background
I originally became interested in setting up a distributed Xenu wayback mirror when the Internet Archive had to pull Xenu out of their Wayback Machine due to their Scientology takedown notice.
Here is my original post on the subject with a detailed link with my explanation of the situation.
It turns out that Scientology (I assume using Google) found me through my blog where I linked to the wayback archive running on PeerFear .
Right now the content has been moved to a temp directory and is no longer hosted on the site. I am considering my options for restoring service including moving the content to a hosting provider in a country with less draconian Copyright laws.
Dealing with SBC/PacBell
SBC has handled this in a completely unacceptable manner. No warning notice was provided. They did send an email to _REMOVED_@pacbell.net however this is an account that is not used (honestly how many people use their DSL provided email anyway). In fact I honestly had no idea that it existed until their Policy department informed of this. They have my cell phone, my land line, and my physical address in San Francisco yet they choose to use *none* of these to warn me prior to disconnecting my service.
Up until this point I have been a loyal SBC customer for greater than 2 years. I purchase their business grade account at $180 a month for 5 IPs, 384 up, and 6Mb down with an Acceptable Use Policy that allows for running servers (web, email, etc).
When I originally contacted SBC I was told that they couldn't reconnect my service until the "policy block" is removed. I was then given a number for policy and told to leave a message and that I would be called back within 24 hours.
Right here is where things started to go wrong! 24 hours! I am a business customer and I have no reason why I should have been disconnected (at this point I didn't know about the DMCA problem).
Calling the number yielded a cryptic computer generated voice (which I couldn't understand) and I was then dumped right into voicemail.
I later found out that this number had been disconnected. After talking to a number of supervisors I was able to have one admit that they were redirecting customers to a disconnected phone number! Other support department supervisors said they could not help me without approval from Policy and they were not willing to believe that the number was disconnected.
I was then told by Technical Service Representatives that they are not allowed to directly call the Policy department. This is after about 36 hours ... One would think that SBC would have some type of escalation procedure but there does not seem to be one in place.
Phone calls to countless supervisors and still no one could solve my problem.
I finally received a call from a *memo* sent to the Policy department. It turns out I was given a DMCA Takedown Notice. This is about 80 hours after I first noticed my problem on Monday morning.
I was then told by the Policy department supervisor that all my blocks had been removed. The only problem is I still have no Internet access. Another 6 hours on the phone with SBC and it turns out that they only removed 3/4th of my blocks. One more remained! The person in Policy decided she would go home for the evening instead of verifying I was restored service even *after* telling here I have been disconnected for 80 hours!
DMCA Takedown Notice
This entire mess was caused by a few images in a Xenu.net archive on my website. The CoS had no reason to come after me as all they would have to do is go after the upstream provider! Go after Xenu! They are the original infringers!
Of course Xenu.net is in another country which seems to explain why they came after me. I assume that they have tried this before but that there is no DMCA in the Netherlands to apply to Xenu.net.
Did SBC try to verify that these were copyrighted works? I still have to find out. I honestly highly doubt that they *are* copyrighted works. I imagine SBC just caved and didn't even try to defend the rights of their customer (me).
Fallout and Lessons Learned
This has been very hard for me to deal with. Three days off the Internet is probably the longest time I have been disconnected in years. Even when I go on vacation I make sure that I have 802.11b (even if the AP is just connected to a modem) and that I only have to go a few hours without jacking in.
This hits me at an especially sensitive time as I am busy working on NewsMonster and getting it ready for a big release. For a while there I was making *great* progress! I might have been able to release it by now (I am still just a few days away) but being off the Internet for this long has caused me to loose a lot of work.
One major lesson here is that the DMCA is a double edged sword. If your ISP doesn't know how to deal with it you are going to be seriously hurt (even if you are innocent or willing to accommodate). If I was running PeerFear on an enlightened provider they probably would have just called my cell and I would have deleted a few files. Life would have been fine and I would have released NewsMonster by now.
I am strongly considering moving away from SBC. Their handling of this matter has been terrible and I can't afford to have this happen again.
I don't know where I am going to go from here with regards to my Xenu wayback archive. It quickly becomes obvious that you can't screw with the CoS. I might try to resolve this by putting the wayback archive online and if the CoS has a problem with coyprighted material they can keep giving SBC DMCA takedown notices until every image in the archive is blocked out.
I guess this would be an acceptable compromise if only 10% of the content is removed. I am also going to require that they backup their copyright claims for these images. I am going to look their email and if the claims are false I might consider putting them back up or taking more drastic (and legal) measures.
Print Article
Next: PeerFear offline since monday
Copyright 2001-2004 Kevin A. Burton ( burton@openprivacy.org )
http://www.peerfear.org/download/scientology-takedown.html
This is the DMCA Takedown Notice I received on February 4, 2003. The URLs contained may 404 as I have since removed the archive and am trying to find a solution to my new hosting problems. - Kevin A. Burton
Subject: RE: Notice of Copyright Infringement
Dear Mr. Epstein:
Our office represents Church of Scientology International ("CSI") and Religious
Technology Center ("RTC"), non-profit religious corporations located in Los
Angeles, California, with respect to intellectual property matters. Our office
also represents the L. Ron Hubbard Library, the owner of the copyrights to
certain photographs and works of Mr. L. Ron Hubbard, the founder of the
Scientology religion, and we represent Bridge Publications, Inc. ("BPI"),
exclusive licensee of the copyrights to the published works of the Scientology
religion, which includes numerous books and tapes and tape transcripts. In
addition, we represent Church of Scientology Flag Service Organization ("FSO"),
which owns the rights in various magazines and photographs.
You are hereby on notice that one of your customers has placed literally
hundreds of pages of copyrighted works and trademarks that belong to our
clients, on your web site without our clients' authorization. Thus, this
subscriber's actions in this regard not only violate United States copyright
law, but SBC Internet Services' own Terms of Service expressly prohibit such
conduct. Accordingly, we request that these infringements be removed
immediately.
Because of the sheer volume of the infringements that are on your customer's web
page, we have broken them down into categories and numbered them as follows:
I. Identification And Location of Infringing Works (Photographs) Nos. 1 - 24
Description
URL
1. Untitled photograph of group by a helm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/propaganda/12.jpg
2. Untitled photograph of a large group by a helm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/propaganda/7a-1200.jpg
3. Photograph entitled "Captain David Miscavige"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/steering.jpg
4. Untitled photograph of a man in uniform
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/6a.jpg
5. Untitled photograph of a woman in uniform
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/6b.jpg
6. Untitled photograph of a man in uniform
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/6c.jpg
7. Untitled photograph of a ring
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/6d.jpg
8. Untitled photograph of a group of people by a table with one person leaning
forward
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/3.jpg
9. Untitled photograph of a man
receiving a medal
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/2b.jpg
10. Untitled photograph of a man with a medal
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/2a.jpg
11. Person in uniform on a podium lecturing with his hand out
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/propaganda/4.jpg
12. Untitled photograph displaying "International Headquarters"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/propaganda/2.jpg
13. Photograph of a crew with cameras
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/a2.gif
14. Photograph of a group of uniformed people
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/b4.jpg
15. Photograph of a man's face entitled Alain Kartuzinsky
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/b4-b.jpg
16. Photograph of a man in uniform
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/b3.jpg
17. Photograph of a man's face entitled Richard Reiss
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/b3-b.jpg
18. Photograph of a group ofuniformed people with three females in the front row
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/b2.jpg
19. Small photograph of a group of uniformed people
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/events/lisa_mcpherson/clan1.jpg
20. Photograph of a group of uniformed people
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/b1.jpg
21. Photograph of a person at a podium under a seal
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/propaganda/6.jpg
22. Photograph of a person in uniform
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/propaganda/8.jpg
23. Photograph of three unformed people at a table
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/propaganda/10.jpg
24. Untitled photograph of woman handing over an award to another woman
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/photoalbum/5b.jpg
25. Photograph of a man in white with dark glasses, displaying "Hubbard &
Clearwater - the early years"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/h_c.gif
II. Identification of Copyrights of The Photographs In 1 - 25 Above
The infringements set forth in Nos. 1 through 25 above are taken from various
publications, the copyrights of which belong to our clients. Below is a detailed
description of the publication in which each of the photographs is contained in
the same order as listed above.
Publication
Description Issue Date
Page
1.
Highwinds:
Magazine of the Sea Organization 19 199611
2.
Highwinds:
Magazine of the Sea Organization 19 199611
3.
Highwinds:
Magazine of the Sea Organization 19 199611
4.
Highwinds:
Magazine of the Sea Organization 19 199652
5.
Highwinds:
Magazine of the Sea Organization 19 199652
6.
Highwinds:
Magazine of the Sea Organization 19 199652
7.
Highwinds:
Magazine of the Sea Organization 19 199652
8.
Highwinds:
Magazine of the Sea Organization 19 199636
9. Impact: Magazine of the International
Association
of
Scientologists 39 1991 24
10. Impact: Magazine of the International
Association
of
Scientologists 39 1991 24
11. Impact: Magazine of the International
Association
of Scientologists 19 1988 42
12. KSW News
24 1988 2
13. L. Ron
Hubbard -
A Profile 1995 116
14.
Source: Magazine of the Flag Land Base 94 1994 18
15.
Source: Magazine of the Flag Land Base 94 1994 18
16.
Source: Magazine of the Flag Land Base 95 1995 16
17.
Source: Magazine of the Flag Land Base 95 1995 16
18.
Source: Magazine of the Flag Land Base 95 1995 2
19.
Source:
Magazine of the Flag Land Base 100 199641
20.
Source:
Magazine of the Flag Land Base 100 199641
21. Impact: Magazine of the International
Association
of
Scientologists 50 1993 33
22. KSW News
48 1996 2
23. KSW News
24 1988 3
24. Impact: Magazine of the International
Association
of
Scientologists 9 1986 32
25. L. Ron
Hubbard -
A Profile 1995 116
III. Identification of Infringing Works
(Documents)
Nos. 26 - 39
Description
URL
26. "Non-SO Members in SO Orgs"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/seaorg3.gif
27. "Commordore's Messengers"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/cmo.gif
28. "The Sea Organization"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/seaorg1.gif &
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/seaorg2.gif
29. "Routine 3 Heaven"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/HCOB/FU-HCOB-630511.html
30. "Security Check Children"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/HCOB/FU-HCOB-610921.html
31. "HCO WW Security Forms"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/HCOB/FU-HCOB-610928.html
32. "Dead Agenting"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/enemy_names/dead_agenting.html
33. "Targets, Defense"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/enemy_names/targets.html
34. "Sec Check Whole Track"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/HCOB/FU-HCOB-610619.html
35. "The Scientology Emotional Tone Scale"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/tonelevel.html
36. "Routine 3N - Line Plots"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/HCOB/FU-HCOB-630714.html
37. "Computer Series 6 - INCOMM"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/incomm1.gif
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/incomm2.gif
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/incomm3.gif
38. Materials Grade Chart
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/grade_chart.html
39. "Enemy Names"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/disk/enemy/index.htm
IV. Identification of Copyrights of The Text Documents
Nos. 26 - 39
Description
Registration Nbr
26. Flag Order 2772 "Non-SO Members in
SO Orgs"
TXu 374-312
27. Flag Order 3729 "Commodore's
Messengers"
TXu 374-312
28. Flag Order 137 "The Sea Organization"
TXu 840-811
29. HCO Bulletin of May 11, 1963
"Routine 3 - Heaven"
A 640105
RE 561-335
30. HCO Bulletin of 21 September 1961
"Security Check Children"
TX 1-143-720
RE 438-055
31. HCO Bulletin of 28 September 1961
"HCO WW Security Forms"
A 785007
TX 2-478-862
32. HCO Policy Letter of 28 October 1968
"Press Releases"
HCO Policy Letter of 21 Nov. 1972
"How to Handle Black Propaganda"
HCO Policy Letter of 25 February 1966
"Attacks on Scientology"
TX 2-251-232; TX 2-478-866, A
592-037; TX 2-646-306
33. HCO Policy Letter of 16 February 1969
"Targets, Defense"
TXu 598-760
34. HCO Bulletin of 19 June 1961 "Sec
Check Whole Track"
TX 1-159-379
35. HCO Bulletin of 25 September
1971RB "Tone Scale in Full"
TX 2-617-669
36. HCO Bulletin of 14 July 1963
"Routine 3N - Line Plots"
TX 1-276-429
RE 561-211
37. HCO Policy Letter of 23 November
1985 "INCOMM"
TX 2-325-017
38. CSI is the owner of the copyright to the publication: "The
Bridge
of
Knowledge," published in 1993, which contains the work "The
Dianetics
and
Scientology Materials Grade Chart."
39. BPI is the owner of the copyright to the work HCO Policy
Letter of
16
February 1969 "Enemy Names."
V. Identification of Infringing Works (Documents)
Nos. 40 - 56
Description
URL
40. "21 May 78 Telex to CO FSO"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/11.gif
41. "9 September 76"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/6b.gif
42. "29 September 78 Telex to CO FSO"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/11b.gif
43. "CO CMO, INFO, Confidential"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/12.gif
44. "R Advices for Division 2"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/2.gif
44. "1 January 76"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/3.gif
45. "3 January 76"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/3b.gif
46. "10 January 76"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/4.gif
47. "30 January 76"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/5.gif
48. "6 September 76"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/6.gif
49. "5 January 77 Despatch to Treas Sec"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/7.gif
50. "14 March 77 Telex to A/CO FSO"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/7b.gif
51. "15 March 77 Telex to FCCI PO"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/8.gif
52. "16 March 77 Telex to ASRs and
Letter Reges"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/8a.gif
53. "21 March 77 Telex to ASRs and
Letter Reges"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/8b.gif
54. "23 May 77 Telex to CO FSO"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/8c.gif
55. "26 February 78 Telex to CO FSO"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/10.gif
56. "17 March 78 Telex to CO FSO"
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/hubbandcw/10b.gif
VI. Identification of Copyrights of The Text Documents
Nos. 40 - 56
Nos. 40 through 56 are unpublished copyrighted works telexes that were sent by
L. Ron Hubbard from 1976 through 1979 the copyrights of which belong to the
L. Ron Hubbard Library.
VII. Identification of Unpublished Confidential Works
RTC is also the owner of the confidential Advanced Technology of the Scientology
religion and the holder of exclusive rights under the copyrights applicable to
the Advanced Technology materials. The Advanced Technology materials are
confidential, unpublished, copyrighted works. RTC's works include, among others,
the individual works comprising a level known as "OT III" and another such level
known as "NOTs". These works are registered with the United States Copyright
Office under registration numbers: TXu 290-496 and TXu 257 326 and 257 527.
One of the OT III works has been placed on the web site
"www.peerfear.org/wayback/2002/12/17/www.xenu.net" in different formats and
languages on many separate locations, along with a substantial portion of one of
the NOTs works. These have been placed on SBC's web site without the
authorization of our client under the following URLs:
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/OTIII-sc
hola
r/ot3-
data-1.gif
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/bork.htm
l
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
leaf.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
-Letter.pdf
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
-A4.pdf
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
sw.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
sw.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
nl.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
nl.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
fr.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
fr.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
fi.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
fi.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
no.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
no.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
sp.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
sp.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
it.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
it.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
ge.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
ge.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
af.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
af.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
po.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
ru-w.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
ru-k.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
heb.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
heb.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
esp.htm
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
gr.doc
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/leaflet/
xenu
ro.htm
Our clients have obtained numerous permanent injunctions concerning
Internet
infringements of this and similar works. For instance, in RTC v.
Lerma,
Case No. Civil
Action No. 95-1107-A, the court ruled in favor of RTC, permanently
enjoining
the defendant
infringer from posting, on the Internet, the same OT III work that is
the
subject of this notice
here. In May 1998, a jury in the United States District Court in San
Jose,
California assessed
damages in the amount of $75,000 against a Mr. Henson for copyright
infringement, for
posting one of RTC's Advanced Technology works on the Internet. Mr.
Henson
was also
permanently enjoined by the court against further infringements.
VIII. Unauthorized Use Of Federally Registered Trademarks
RTC is also the owner of the trademarks and service marks of the
Scientology
religion. RTC's federally registered trademarks have also been placed
on
the
"www.peerfear.org/wayback/2002/12/17/www.xenu.net" web site, without
RTC's
authorization as follows:
1. L. Ron Hubbard Signature which is registered with the United States Patent
and Trademark Office under registration number 1,821,751
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/ot/ot.gif
2. Scientology Cross which is registered with the United States Patent and
Trademark Office under registration numbers 1,012,452; 1,302,525 and 1,325,117.
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/techniques/cross.jpg
3. Sea Org symbol which is registered with the United States Patent and
Trademark Office under registration numbers 1,334,758; 1,326,867; 0,877,948;
1,317,343; as well as the Sea Horse symbol which is a trademark owned by RTC.
http://www.peerfear.org/wayback/2002/12/17/www.xenu.net/archive/greece/Contract.gif
Your subscriber's unauthorized use of RTC's trademarks creates a likelihood of
confusion as to source or sponsorship of this web page in violation of United
States state and federal law, including the Lanham Act, 15 U.S.C. section 1015
et seq., in addition to violating international intellectual property laws.
These federally registered trademarks, are unique, distinctive and famous. Your
subscriber's use of these marks dilutes and tarnishes the distinctiveness of the
marks by improper negative associations inconsistent with the positive and
spiritual accomplishments and humanitarian efforts of the Scientology religion
in violation of the federal trademark antidilution statute, 15 U.S.C. 1125(c)
and California's antidilution statute. See, Archdiocese of St. Louis v. Internet
Entertainment Group, Inc., 34 F. Supp.2d 1145 (E.D. Mo. 1999); Mattel,
Inc. v. Internet Dimensions, Inc., 55 U.S.P.Q.2d 1620 (S.D.N.Y.2000); Deere &
Co. v. MTD Products, Inc., 41 F.3d 39, 43 (2nd Cir. 1994).
Additionally, these same infringements have been removed immediately upon notice
by a number of internet service providers, including UUNet, Alta Vista and Sage
Networks.
IX. Conclusion
Based upon the foregoing we request that these infringements be removed
immediately.
We appreciate your prompt attention to this matter.
I have a good faith belief, and in fact know for certain, that the posting of
these works by your subscriber on his web page was not authorized by my clients,
any agent of my clients, or the law.
I declare under penalty of perjury that this information is accurate and that I
am authorized to act on behalf of RTC, BPI, the L. Ron Hubbard Library, FSO and
CSI in this matter.
Sincerely,
Ava Paquette
Moxon & Kobrin
3055 Wilshire Boulevard
Suite 900
Los Angeles, California 90010
Tel: (213) 487-4468
Fax: (213) 487-5385
I've made the Pavlovich Decision available in HTML too (that's true to the PDF document page-number-wise - for easy printing, citing, etc.).
Let me know if you need me to embed a link for you for a specific purpose. (That's the point of having these documents available online -- So we can all reference them and cite specific portions directly.)
Supreme Court Intervenes in DVD Dispute
Supreme Court Urged to Settle DVD Copying Dispute; Could Be Landmark for Online Content
The Supreme Court has temporarily intervened in a fight over DVD copying, and the justices could eventually use the case to decide how easy it will be for people to post software on the Internet that helps others copy movies.More broadly, the case against a webmaster whose site offered a program to break DVD security codes could resolve how people can be sued for what they put online...
The California Supreme Court ruled in November that the former webmaster, Matthew Pavlovich, cannot be sued for trade secret infringement in California. Justices said he could be sued in his home state of Texas, or in Indiana, where he was a college student when codes that allowed people to copy DVDs were posted on his Web site in 1999.
Here is the full text of the article in case the link goes bad:
http://abcnews.go.com/wire/Politics/ap20021230_1575.html
WASHINGTON Dec. 30 —
The Supreme Court has temporarily intervened in a fight over DVD copying, and the justices could eventually use the case to decide how easy it will be for people to post software on the Internet that helps others copy movies.
More broadly, the case against a webmaster whose site offered a program to break DVD security codes could resolve how people can be sued for what they put online.
Justice Sandra Day O'Connor granted a stay last week to a group that licenses DVD encryption software to the motion picture industry, giving the court time to collect more arguments. She requested filings by later this week. The group has spent three years trying to stop illegal copying.
The case puts the court in the middle of a cyberspace legal boundary fight: Where can lawsuits involving the World Wide Web be filed?
Consumers' rights are pitted against industry copyright protection, with billions of dollars at stake, said Tim Bajarin, president of Creative Strategies Inc., a Silicon Valley consulting firm.
"All of us have felt this was going to be forced up the legal chain," he said.
The DVD industry wants the Supreme Court to use its case against a former webmaster to clarify where lawsuits can be filed.
New York technology analyst Richard Doherty said companies have delayed many new products, services and forms of entertainment because of the DVD industry's problems.
"The future of digital delivery has been on hold ever since this case first came," said Doherty, head of The Envisioneering Group. "They need to know it's going to be protected, it's not going to be ripped off seven seconds after being put on the Internet."
The issue of Internet jurisdiction has come up in Australia, where that country's highest court ruled recently that a businessman could sue for defamation over an article published in the United States and posted on the Internet.
The California Supreme Court ruled in November that the former webmaster, Matthew Pavlovich, cannot be sued for trade secret infringement in California. Justices said he could be sued in his home state of Texas, or in Indiana, where he was a college student when codes that allowed people to copy DVDs were posted on his Web site in 1999.
The program was written by a teenager in Norway and is just one of many easily available programs that can break DVD security codes.
The ruling by a divided California court makes it harder for the industry to pursue people who use the Internet to share copyrighted material.
Pavlovich's attorney, Allonn Levy, said Monday that a group should not be allowed to "drag a student who's involved with a Web site into a forum that's halfway across the country." He said the case affects all people who use the Internet and businesses with sites on the Internet.
The California-based DVD Copy Control Association argued that California was the proper venue because of the movie industry's presence in that state. Lawyers for the association told the Supreme Court that the stay was needed to keep Pavlovich from reposting the decryption program on the Internet.
I'll be reporting from the ElcomSoft Trial going on this week in San Jose, California.
Here are a pair of stories I wrote about Dmitry Sklyarov and ElcomSoft last year if you're interested in refreshing your memory about the situation:
Dmitry Sets The Record Straight
Here are a pack of stories by Joanna Glasner for Wired News about what's been going on with the trial so far. The prosecution made its case last week. The defense presents its case starting tomorrow afternoon. I'll be posting updates every evening starting tomorrow night.
Opening Salvos in ElcomSoft Trial
Adobe: ElcomSoft Outside U.S. Law
Testimony on Tape in E-Book Trial
MATTHEW PAVLOVICH, v. DVD COPY CONTROL ASSOCIATION, INC
Consider this blog entry a little greeting card to whoever it is that made this donation...
An anonymous donor has given a million dollars to Duke University that will be used to finance a new center for research on curtailing copyright extensions.
See the Register's:
Anonymous $1m grant to test copyright laws
Here's the entire article in case the link goes bad:
http://www.theregus.com/content/6/26213.html
Anonymous $1m grant to test copyright laws
By John Leyden
Posted: 09/05/2002 at 10:07 EST
An anonymous gift of $1 million to Duke University in the US will be used to finance a new centre conductin research into curtailing recent extensions of copyright law.
James Boyle, a Duke law professor, said the centre is likely to take a close and critical look at laws like America's highly-controversial Digital Millennium Copyright Act (DMCA).
"This is an attempt to figure out the balance between intellectual property and the public domain," Boyle told CNET's Declan McCullagh . "If you want to have a rich culture and an innovative society, you have to leave a large amount of material freely available for all to use."
Boyle is not in favour of abolishing copyright, merely addressing the balance between the rights of copyright holders and the general public, which has got out of kilter, he suggests.
Congress has been too willing to swallow the views of the entertainment industry when considering copyright laws, rather than consider other perspectives on the issue, according to Boyle.
Duke intends to help fill this knowledge deficit, something that can't come a moment too soon after Congressman Howard Berman's soft-headed suggestion that copyright holders should be allowed to hack into and disrupt P2P networks with impunity.
In related news, Adobe - which initiated the first DMCA prosecution against ElcomSoft and Dmitry Sklyarov - has found itself scurrying off to the courts in hopes that it of confirming it hasn't run foul of the DMCA itself.
Claims of violations against the DMCA by Adobe came up during contractual disputes with font suppliers Agfa Monotype and ITC (International Typeface Corporation), whose technology is embedded in Acrobat.
From the "anything for attention" department, Declan decides to take on reality by making the argument that the DMCA's Chilling Effect on scientific research doesn't really exist.
Meanwhile, back on planet earth, Ed Felten, a scientist who has been personally put on ice more than once clarifies the issue -- along with two other chilled out scientists: Edward D. Lazowska
(University of Washington; Co-chair, Computing Research Association
Government Affairs Committee) and Barbara Simons
(Co-chair, ACM US Public Policy Committee).
Boy that's a relief! And all this time I thought there was a problem with the DMCA! Thanks, Declan, for putting everything into perspective!
Here's the full text of Ed Felten's response in case the link goes bad (full text of declan's story follows below) :
http://www.freedom-to-tinker.com/archives/000020.html#000020
August 19, 2002
Response to Declan's DMCA Piece
Declan McCullagh misses the boat at least twice in his August 19th
column concerning the potential impact on computer science research of
the Digital Millennium Copyright Act ["Debunking DMCA myths," c|net
News.Com, http://news.com.com/2010-12-950229.html].
First, the DMCA has two arms: one that prohibits devices that circumvent
copy protection, and one that prohibits acts of circumvention. The
research conducted by Professor Felten and his colleagues took place
prior to the time when the "acts of circumvention" provisions became
effective in October 2000. Thus, these provisions did not apply to that
research. However, there is little doubt in the legal community that
this research, and similar research, would be illegal under the "acts of
circumvention" provisions. Declan fails to recognize this arm of the
DMCA in his column.
Second, the chilling effect of the DMCA cannot be described by the
probability of conviction alone. One must also consider the magnitude
of the exposure if convicted. Because the "acts of circumvention"
provisions of the DMCA were not in effect at the time of the Felten
research, the probability of an adverse judgment was indeed small.
However, a group of highly respected legal consultants told Felten's
employer that the cost of an adverse judgment could be truly enormous.
The combination of these two factors had a very substantial chilling
effect. (It is also the case that two individuals were likely to lose
their jobs if the paper was published. This illustrates the human
dimension of the chilling effect.)
Other issues, on which we shall not elaborate, include the
anti-dissemination provisions of the DMCA, and the civil (in addition to
criminal) provisions.
It is disruptive to the progress of research when scientists must first
consult with attorneys to determine if previously legitimate research
might be in violation of the DMCA. We are happy to agree with Declan
that "The DMCA is ... an egregious law ... and should be unceremoniously
tossed out by the courts."
Edward W. Felten
Princeton University
Edward D. Lazowska
University of Washington; Co-chair, Computing Research Association
Government Affairs Committee
Barbara Simons
Co-chair, ACM US Public Policy Committee
Here's the text of Declan's original piece (that the above is a commentary on):
http://news.com.com/2010-12-950229.html
Debunking DMCA myths
By Declan McCullagh
August 19, 2002, 4:00 AM PT
WASHINGTON--Should researchers really be so worried about the much-reviled Digital Millennium Copyright Act?
If you believe the buzz, you'll conclude that programmers, academics and engineers should be scared witless about being sued under the DMCA. In effect for nearly two years, the law sets protections for the codes that are wrapped around certain copyrighted content such as DVDs and electronic books.
An attorney for the Computing Research Association, representing the computer science departments of some 200 universities, claims that "professors are afraid to study information systems or to publish their research." One researcher in the Netherlands announced that, because of the DMCA, he would not reveal his analysis of Intel's digital video system. Edward Felten, a computer scientist at Princeton University, and his colleagues postponed a presentation of their co-authored paper for four months after receiving DMCA threats.
Because some of his co-authors' employers nixed the presentation, Felten's delay is understandable. However, the fears of legal action may not all be justified.
Don't get me wrong. The DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies. It is probably unconstitutional. It creates unnecessary federal crimes, cedes too much authority to copyright holders, and should be unceremoniously tossed out by the courts. (As a bonus, perhaps we could horsewhip its many fans in Congress.)
If activists hope to assail a law like the DMCA, they'll be taken more seriously if they know what they're talking about.
Even so, not all execrable laws are equally loathsome. A careful look at the DMCA shows that, far from prohibiting all security research, the law does not regulate as many activities as people seem to believe. And if activists hope to assail a law like the DMCA, they'll be taken more seriously if they know what they're talking about.
"The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero," says Orin Kerr, a law professor at George Washington University and a former prosecutor for the Justice Department. In fact, Kerr says, it makes sense to take opponents' claims about the scope of the copyright law with a grain of salt.
"Opponents of the DMCA want to dramatize its effects, so they want people to believe that the law is incredibly broad," Kerr says. "If the public believes that the DMCA is stopping Professor Felten and other researchers from conducting legitimate research, then that is a major victory for opponents of the law."
The fine print
Start with the text of the DMCA itself. It says, "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device (or) component" that is primarily designed to bypass copy-protection technology. Note it does not explicitly prohibit research or published work, and in fact the DMCA explicitly includes limited exemptions for encryption research and reverse-engineering.
Actual violations of the DMCA can be punished with a civil suit for damages or, if done for commercial gain, prosecuted as criminal acts. The Justice Department indicted Dmitry Sklyarov because his employer, ElcomSoft, sold an e-book decoder that he helped to create, triggering the DMCA's criminal penalties.
By contrast, in a legal opinion, the Justice Department stressed that the paper co-authored by Felten provided zero grounds for criminal prosecution. The government even lauded the work as "designed and published to further scientific research."
On the other hand, it's conceivable that the DMCA permits a civil suit against an academic report that includes source code or object code. A company seeking to sue a researcher could argue that the DMCA covers such an act, as eight movie studios did when successfully suing the magazine 2600 for distributing a DVD-descrambling utility.
But R. Polk Wagner, who teaches intellectual property law at the University of Pennsylvania, thinks that a lawsuit sparked by a paper or presentation would be "a really long stretch."
"I don't think there was ever a realistic chance that Felten would have been liable, and I think all parties knew it from the beginning," Wagner says.
In a report accompanying the DMCA, Congress stressed that research could not be targeted: "The committee believes it is very important to emphasize that (this section) is aimed fundamentally at outlawing so-called 'black boxes' that are expressly intended to facilitate circumvention of technological protection measures for purposes of gaining access to a work."
Code-free zones
If published research does not include working code--which is a vital part of research--the odds of a successful lawsuit rapidly approach zero.
If published research does not include working code, the odds of a successful lawsuit rapidly approach zero.
Peter Jaszi, a law professor at American University, is an ardent DMCA foe who worked to defeat the bill when Congress was considering it. While there are no guarantees, Jaszi says, "it's a bigger reach to say that describing the process by which some kind of hack might be accomplished without providing any kind of code is covered."
So if English-language descriptions of security flaws are permissible, what explains the near-constant state of jitters among security researchers nowadays? (It can't just be Hewlett-Packard's quickly abandoned DMCA threats against security researchers.)
One explanation is an unreasonable fear of the law. Citing DMCA fears, TiVo asked people to stop posting information about how to copy video off the device onto another machine--even though its legal liability is nonexistent. Dug Song, a security expert at network-protection company Arbor Networks, even took his personal Web site offline. For a while, the Institute of Electrical and Electronics Engineers required authors writing for its science journals to certify that their papers were DMCA violation-free--until cooler minds prevailed and IEEE recanted.
Exaggerated threats
Another explanation is overly aggressive advocacy by groups like the Electronic Frontier Foundation, which represented Felten. "They succeeded in creating a kind of chilling effect in the scientific community because of the kind of fear-mongering they were engaged in," says Allan Adler, vice president at the Association of American Publishers (AAP).
Adler says that because the AAP represents corporations and universities that publish books of computer code, the organization has every reason to worry about restrictions on distributing technical information. Among the AAP's members are MIT Press, Princeton University Press and Stanford University Press. McGraw-Hill, which publishes books such as "C: The Complete Reference," filled with programming examples, is another.
But, Adler says, the AAP isn't concerned about the DMCA. "Such a reading of the statute (to include restrictions on research) is a clear stretch given its constitutional implications and the absence of any supporting legislative history. Moreover, it is a stretch that would not have been lightly countenanced by ardent First Amendment advocates in the publishing industry."
The Register's Thomas Greene put it more bluntly. A recent DMCA alert, Greene said, was a "nonissue which EFF inflated into gargantuan proportions."
For its part, the EFF points to the potential chilling effect of even unfounded DMCA threats, saying that "nastygrams" can halt a lot of legal acts--and most people are not willing to risk being right at the cost of civil fines that swallow their kids' college funds.
"Not every grad student or even professor is going to have easy access to free counsel who can provide a counterweight to the university lawyers," says Lee Tien, an EFF staff attorney. "Even if the paper were published, was it somehow bowdlerized? This is corrosive to scientific discourse."
Any type of publishing carries risks, including possible suits for libel, copyright infringement or invasion of privacy. Security research is no different. Before self-censoring, a researcher should make a sober evaluation of which allegations are likely to stick and show courage by not bowing to spurious threats. Back in 1977, cryptographers Ron Rivest, Adi Shamir and Len Adleman, and lawyers at MIT showed commendable mettle when standing up to threats from the National Security Agency related to their encryption research.
Luckily for them, the threat from the government soon faded. But because the DMCA has not yet been wielded in a court battle against a researcher, anxieties remain.
University of Pennsylvania professor Wagner says that's likely to remain the case for a while: "Copyright owners will kill two birds with one stone by expressing support for good-faith, serious research. It's good PR, and maintains the helpful--to them--vagueness of the current state of the law. I see an uneasy truce in our future."
Ed Felten has started a new Freedom-to-Tinker Blog to raise awareness about the DMCA's negative impact on education and innovation.
O'Reilly Network: Free Culture: Lawrence Lessig Keynote from OSCON 2002
Lawrence Lessig's keynote from OSCON 2002 is now available online (its an audio file over a powerpoint presentation in Flash format): http://randomfoo.net/oscon/2002/lessig/.
I just wrote an O'Reilly Network Weblog about Lawrence Lessig's Keynote from Wednesday:
Lessig Asks OSCON 2002 Audience: "What have you done?".
I just found out about GeekPAC today, a Political Action Committee started by Doc Searls and Jeff Gerhardt.
I realize that an article or two already came out about this some time ago, but it's still news to me and pretty damn exciting!
I've been waiting for something exactly like this to form since the O'Reilly P2P Conference in Washington DC last year, when I was having lunch with a friend of mine and he asked me if I was "working the halls" while I was in DC.
I, of course, had no idea what he was talking about at the time, but it brought up an interesting question: if I was to get some "face time" with a politician that was ready to actually listen to what I had to say, who do I represent exactly? It's a question that I've had written on my white board in my kitchen for the last seven months in bold red letters: Who do I represent?
What about Napster's 70 million users? Who's representing them? What if only ten percent of the Napster users wrote one letter to their congressman? What if? What if? What if?
No more time for "what ifs" people: it's time to get together and fight!
Richard Stallman's keynote today made me think about how not sharing source code (speech) is like not sharing any other kind of knowledge, and another way for "the man" (embellishment my own) to fragment the masses in order to stop them from collaborating so they won't have a chance to pose any real threat to the larger monopolistic power structure (that has more time and money and resources than they do individually).
I don't know why I never thought about it before -- but wow, he's totally right. "They" have managed to do it to us again -- convincing the public (the "average programmer at-large") that it is somehow in their best interests to withhold knowledge from others and not benefit on what others have learned based on the fallacy that doing so will somehow lead to greater weath for them as an individual in the long run. (Although, in reality, of course, it only leads to the greater wealth of the monopolies already in power.)
To further convince us that we are powerless individuals without any political power, when the only reason we don't have any political power is because our knowledge is not being shared is just the icing on the cake! Whether that knowledge is about software or medicine or machinery or whatever - we as individuals can't amass it ourselves - we have to share. If that sharing is made illegal, guess what: we lose. Game Over.
One of our most important rights is our Right to Peaceably Assemble. It sure seems to me that restricting our right to publish certain kinds of information (like that prohibited by the DMCA) is much like not allowing a group to assemble and communicate with each other. It certainly isn't very democratic. It certainly isn't a characteristic of any sort of "free society".
So with all this in mind: It's time to start assembling -- both online and off. There are more of us than there are of them. Why are we letting them push us around? Their arguments don't even make sense, but they're simple enough for non-technical politicians to wrap their around when they're accepting the check that comes with them. We need better, more simple arguments, the voting power to back them up and the political contributions to get their attention in the first place (here's where GeekPAC comes in).
Lawrence Lessig used a quote from Congressman JC Watts, Jr. in his Keynote today: "If you're explaining, you're losing." The situation is complicated, but we have to find a way to explain it succinctly (in 15 minutes or less would be a reasonable first goal perhaps? -- then we can try for 5 minutes -- then (gasp) we can take a shot at something even more concise (that's right kids, can you say "advertising slogan"?).
Speaking of catchy advertising slogans, I thought of a bumper sticker today:
"I'm a Geek and I vote."
Anyhoo, maybe with an organization like GeekPAC we can get started on creating a simple, straight-forward message that both coders, corporations and the average consumer can understand and support quickly.
What a truly inspiring day today (yesterday at this point). I better crash so I'll have energy to finish blogging it in the am.
A really cool weblog added me to its blog roll recently. It made me feel good to be noticed by my allies-at-large:
Copyfight: Intellectual Property Law, Politics and Technology on the Net.
From The Shifted Librarian and 24-hour Drive Thru Weblog
Here's the actual email posting from Vladamir Katalov
(http://online.securityfocus.com/archive/1/281973).
I've created another copy of the email on my own website for safe keeping.
The EFF has published a great paper that summarizes the Unintended Consequences of the DMCA (Digital Millennium Copyright Act).
It is available as a PDF file or as a Googled HTML document.
Since they were enacted in 1998, the “anti-circumvention” provisions of the Digital Millennium Copyright Act (“DMCA”), codified in section 1201 of the Copyright Act, have not been used as Congress envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protections added to copyrighted works, and to ban “black box” devices intended for that purpose.
In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright piracy.
Since they were enacted in 1998, the “anti-circumvention” provisions of the Digital Millennium Copyright Act (“DMCA”), codified in section 1201 of the Copyright Act, have not been used as Congress envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protections added to copyrighted works, and to ban “black box” devices intended for that purpose.
In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright piracy. As a result, the DMCA has developed into a serious threat to three important public policy priorities:
Section 1201 Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten’s team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.
Section 1201 Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, section 1201 grants to copyright owners the power to unilaterally eliminate the public’s fair use rights. Already, the music industry has begun deploying “copy-protected CDs” that promise to curtail consumers’ ability to make legitimate, personal copies of music they have purchased.
Section 1201 Impedes Competition and Innovation.
Rather than focusing on pirates, many copyright owners have chosen to use the DMCA to hinder their legitimate competitors. For example, Sony has invoked section 1201 to protect their monopoly on Playstation video game consoles, as well as their “regionalization” system limiting users in one country from playing games legitimately purchased in another.
This document collects a number of reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors. It will be updated from time to time as additional cases come to light.
Here's a copy of the complaint against Audiogalaxy (PDF file)
(http://www.riaa.com/pdf/Audiogalaxy_Filed_Complaint.pdf).
Damn.
Audiogalaxy in RIAA crosshairs, by John Borland for CNET.
I just wrote up an O'Reilly Network Weblog that includes a bunch of quotes from the PDF version of the 321 Studios brief:
Fair Use vs. DMCA: 321 Studios Takes the First Swing.
Upstart isn't taking any chances with the DMCA. It filed a complaint asking the court to OK its product ahead of time.
See the CNET article by Lisa Bowman:
Upstart seeks court OK for DVD
In a pre-emptive strike to stave off the wrath of the movie industry, a small software company is asking a federal judge for permission to sell and market its product for copying DVDs.
In a complaint filed Monday in federal court in San Francisco, 321 Studios asked the court to declare that its DVD Copy Plus program does not violate the Digital Millennium Copyright Act.
It made me proud to write for the IEEE's Internet Computing Magazine when I read this arstechnica piece:
IEEE just says NO to the DMCA.
Here's the New Scientist article that explains more of the details:
Controversial copyright clause abandoned.
The excerpt below is from the New Scientist article:
The Institute of Electrical and Electronics Engineers (IEEE), which publishes 30 per cent of all computer science journals worldwide, is to stop requiring authors to comply with a controversial US digital copyright law.
The IEEE produced a new set of conditions for publication at the beginning of 2002. These required that authors' work must not contravene the Digital Millenium Copyright Act (DMCA).
Many academics believe the DMCA discourages scientists from publishing valuable research through fear of legal action. The DMCA prohibits "any technology, product, service, device, component or part" that circumvents digital copy protection systems. This includes the software encryption designed to stop people making copies of music or video files, for example. Scientists say the Act means that just producing research on a copy protection system could land them in legal trouble.
An Arizona-based company has settled with the RIAA over files that were arguably being traded in a perfectly legal manner over a private network.
Corporate scaredy-cats! Phoo-ey!
Here's the arstechnica coverage of it and a Reuters article:
Recording industry collects $1 million fine.
Great comic from Rubin Bolling's Tom the Dancing Bug.
Here's a nice piece by Brenda Sandburg for Law.com that helped me to better understand the relationship between all the latest developments in Copyright Law (such as the DMCA), Copyright Regulations (such as all of the recent compulsory licensing proceedings), the Eldred vs. Ashcroft case that will soon go before the Supreme Court, and the recent investigations by the FTC and DOJ's into whether our country's IP policies conflict with our Antitrust laws.
Check out:
Under the Microscope.
(Thanks, Jon.)
The DMCA can't touch scientific research, for now. Thanks to the hard work of the Electronic Frontier Foundation.
Check out Scientist Ends Crusade Against Copyright Law, by David McGuire for NewsBytes.
A Princeton University professor today announced that he would end his legal challenge of a controversial U.S. copyright law that he says was invoked to prevent him from publishing research that exposed holes in recording industry-backed anti-piracy technology.
Princeton professor Edward Felten and his team of scientists said they would not appeal a New Jersey federal court's decision to dismiss their case against the Recording Industry Association of America (RIAA). Felten announced the decision through the San Francisco-based Electronic Frontier Foundation (EFF), which has been representing his scientific team.
Although the RIAA admits that it sent a letter to Felten last year warning him that he could face prosecution under the Digital Millennium Copyright Act (DMCA) should he publish his research, the industry group later retracted the threat, calling the letter a "mistake."
That retraction, coupled with assurances from the U.S. government that the DMCA does not apply to scientific research, prompted the New Jersey court to dismiss the case last November.
"I think the scientists decided that they would take the RIAA at its word," EFF Legal Director Cindy Cohn said of the Felten team's decision not to appeal the case. "They were quite anxious to get on with their work."
Dmitry Sklyarov is off the hook, "until the conclusion of the case against Elcomsoft or for one year, whichever is longer."
See the Press Release from the U.S. Attorney's Office:
US Attorney (N. Dist. CA) Press Release --
On Dropping of Charges Against Dmitry Sklyarov (Dec. 13, 2001).
The United States Attorney's Office for the Northern District of California announced that Dmitry Sklyarov entered into an agreement this morning with the United States and admitted his conduct in a hearing before U.S. District Judge Whyte in San Jose Federal Court.
Under the agreement, Mr. Sklyarov agreed to cooperate with the United States in its ongoing prosecution of Mr. Sklyarov's former employer, Elcomsoft Co., Ltd. Mr. Skylarov will be required to appear at trial and testify truthfully, and he will be deposed in the matter. For its part, the United States agreed to defer prosecution of Mr. Sklyarov until the conclusion of the case against Elcomsoft or for one year, whichever is longer. Mr. Sklyarov will be permitted to return to Russia in the meantime, but will be subject to the Court's supervision, including regularly reporting by telephone to the Pretrial Services Department. Mr. Sklyarov will be prohibited from violating any laws during the year, including copyright laws. The United States agreed that, if Mr. Sklyarov successfully completes the obligations in the agreement, it will dismiss the charges pending against him at the end of the year or when the case against Elcomsoft is complete.
Part of the deal is that he has to testify in the civil case against his employer, but according to the EFF Press Release, he will most likely also testify on his employer's behalf.
See the EFF Media Release:
Sklyarov Freed (Dec. 13, 2001):
U.S. Federal Court Judge Ronald Whyte today signed a court agreement permitting Russian programmer Dmitry Sklyarov to return to his native land after a five-month enforced stay in the U.S. The agreement should eventually clear him of all charges brought against him for distributing software that permits electronic book owners to convert the Adobe e-book format so they can make use of e-books without access restrictions.
As part of the agreement, Sklyarov will testify for the government in the case that remains against Elcomsoft, Sklyarov's employer. He will likely testify on behalf of Elcomsoft as well.
"Dmitry programmed a format converter which has many legitimate uses, including enabling the blind to hear e-books," explained EFF Intellectual Property Attorney Robin Gross. "The idea that he faced prison for this is outrageous."
"There was a tremendous outpouring of grassroots support for Dmitry and against the current U.S. copyright law, and EFF is proud to have been part of such a successful effort," stated EFF Executive Director Shari Steele. "I'm disappointed, however, that the government has decided to string this along instead of admitting its mistake in bringing these charges against Dmitry in the first place."
Looks like college radio stations may be the next in line to be Digital Millennium Copyright Act victims.
See the Salon article, Why college radio fears the DMCA, by By Mark L. Shahinian.
Under the terms of the 1998 Digital Millennium Copyright Act (DMCA), radio stations around the country are supposed to pay thousands of dollars in annual fees to broadcast streaming audio over the Web. Managers of college and community stations say while their commercial counterparts may be able to pay the fees, their stations don't have the cash and will shut down their webcasts.
The 1998 law came up on Capitol Hill Thursday, as members of the House Subcommittee on Courts, the Internet and Intellectual Property held an oversight hearing on how temporary copies stored on computers should be counted when calculating copyright fees.
The hearing, said congressional staffers, was an early skirmish in a battle to defang the DMCA and transfer power from record companies back to broadcasters.
Webcasting was once touted as an example of the Internet's leveling power -- it allows small local stations to reach Internet users all over the world. And college stations, which run tight budgets and eclectic playlists, fit the webcast bill perfectly. But record companies don't like webcasting, with its potential for copying and distributing unlimited digital copies of songs.
Under long-standing U.S. copyright law, broadcasters pay a coalition of songwriters' groups to air music over the Internet and the airwaves. But until the DMCA, performers and record companies did not have the rights to royalties when stations played their music. As part of the 1998 law, Congress allowed performers and record companies to start collecting fees on songs sent over the web, said Joel Willer, a mass communications professor at the University of Louisiana at Monroe. There are still no performer fees for regular airwave broadcasts.
But until now, the law has yet to be fully enforced. If it is, college radio on the Web will be in trouble.
Mindjack has just published a great article by Bryan Alexander about the Digital Millenium Copyright Act and the complex issues surrounding Intellectual Property and fair use in this day and age: The Digital Millenium Copyright Act: Licensing the Commons.
New Report from the U.S. Copyright Office on the Digital Millennium Copyright Act.
I'm still reading it myself (all 200+ pages of it). If you don't have time to read it all...just stay tuned -- I'll be posting an O'Reilly weblog by tomorrow morning on the subject.
