Digital Millennium Copyright Act (DMCA) & DeCSS
Peer-to-Peer (P2P) Systems
Domain Name Trademark Disputes
Censorware (Internet content blocking, filtering, ratings & labelling)
Copyright and ISP Liability
Copyright Act (DMCA) & DeCSS
The Digital Millennium Copyright Act ("DMCA") was passed in 1998 over
the objections of many people, including scientists, librarians and cryptographers.
˜1201 of the DMCA bans devices that enable circumvention
of technical protection systems, and also prohibits the circumvention of technological
protection or access control measures.
The DMCA is very bad news because
it destroys the delicate balance between copyright and First Amendment too heavily
toward the copyright holders. This is because circumvention of technical protection
measures is necessary in order to make fair use, do scientific research, and make
many kinds of ordinary, legal uses of DVDs, such as playing them on Linux machines.
(See Staff Attorney Robin Gross's insight into how, overnight, millions of Americans
became criminals under the DMCA.) (See also Professor and EFF Board Member Pam
Samuelson's paper on why the DMCA is flawed.)
More recently the congress led
by Senator Fritz Hollings in the Senate has been trying to strengthen the DMCA
to give even more power to copyright holders and further weaken the public right
to the intellectual commons. This newest attempt is known as the "Security
Systems Standards and Certification Act" (SSSCA). See our alert at: http://www.eff.org/alerts/20010921_eff_sssca_alert.html.
In response to this threat, which has slowed due to some of the major players
complaining, EFF wrote this letter to the Senate Commerce Committee. It is important
to monitor this situation closely, as all the expensive court battles that we
can wage cannot stop the immediate damage of terrible legislation. See also: stoppoliceware.org;
Letter from the ACM (Association for Computing Machinery); this article in CNet
Universal v. Reimerdes (a.k.a.
the NY DVD case)
Eight major motion picture studios brought a suit under the DMCA against defendant,
2600 Magazine to enjoin it from publishing or linking to DeCSS, a computer program
that circumvents the encryption on DVDs, called CSS. DeCSS was developed to help
enable DVDs to be played on computers running the Linux system. It also allows
the constitutionally protected fair use of DVDs, which is otherwise prevented
by the encryption.
The 2nd Circuit Court of Appeals
affirmed, EFF moved for an en banc hearing. in NY. (January 30, 2002)
At issue: Whether fair use, free software, linking and reverse engineering will
survive the digital age.
EFF's role: defending 2600 along with pro bono lead counsel Dean Kathleen Sullivan
of Stanford Law School.
DVD-CCA v. Bunner (the CA DVD
The DVD Copy Control Association (DVD-CCA), a newly formed mouthpiece of the MPAA,
is suing dozens of unnamed individuals who put DeCSS on their Web sites in various
places around the country and around the world. The case alleges that plaintiffs
misappropriated trade secrets when they published DeCSS.
On Thursday August 23, 2001 oral argument was heard in the appeal
to quash the preliminary injunction. Bunner won, the DVDCCA sought Supreme Court
review, EFF opposed.
(updated January 30, 2002)
At issue: Same First Amendment implications as the NY case; also whether the pretense
of "trade secrets" will enable companies to punish those engaged in
lawful reverse engineering.
EFF's role: Pay for and coordinate the defense in this case.
U.S. v. Elcomsoft (formerly U.S. v. Sklyarov)
The case involves Advanced eBook
Processor (AEBPR) software legally developed by Dmitry Sklyarov, in Russia, for his Russian employer Elcomsoft. According to
the company's website, the software permits eBook owners to translate from Adobe's
secure eBook format into the more common Portable Document Format (PDF). The company
maintains that the software only works on legitimately purchased eBooks. Dmitry
Sklyarov was arrested when he came to the United States to give a talk on computer security and the case
has proceeded from there.
Currently the U.S. has dropped charges against Dmitry in return for
testimony which he would have provided for Elcomsoft anyway. Dmitry is presently
back in Russia
At issue: Whether it is legal to build software tools with substantial non-infringing
uses, and whether U.S. law supersedes
that of other sovereign nations.
EFF's role: EFF is currently acting as amicus in this case. EFF amicus brief (updated
Feb. 20, 2002)
As part of our continuing efforts to spur discussion about the legal issues involved
in peer-to-peer systems, we offer EFF Staff Attorney Robin Gross's insight into
the recent Napster decision, and a white paper summary written by Fred von Lohmann,
formerly a fellow at the Berkeley Center for Law and Technology and now EFF's
Senior IP Counsel, discussing post-Napster legal tips for peer-to-peer developers.
We urge any developers of such systems who have further questions about the legal
and policy issue surrounding P2P to talk to us directly.
MGM v. Grokster This case is about
the freedom of technologists to innovate and the public's right to communicate.
Twenty-eight of the world's largest entertainment companies have sued MusicCity,
the Nashville-based developer of the leading peer-to-peer communications software
Morpheus, in federal court in Los Angeles. Morpheus is a communications tool that allows users
to connect with each other and share information of all kinds. The entertainment
companies claim that MusicCity should be held responsible for the alleged copyright
infringements committed by Morpheus users. On Nov.
18, 2001 there was an additional complaint filed by the National
Music Publishers Association. On Jan 22, 2002, the MusicCity defense team filed a motionfor partial
summary judgement in the case. Relying on the famous Supreme Court case relating
to the Sony Betmax VCR,the motion points out that the Morpheus software iscapable
of substantial non-infringing uses, and thus cannot be banned under copyright
law. The motion will be heard in Los Angeles on March 4, 2002. (In
a related case Paramount filed suit against ReplayTV over whether
allowing the removal of commercials is fair use.)
At issue: Whether the entertainment industry, which previously tried to ban the
VCR, is able to outlaw the technology that is the next killer app. of the Internet.
EFF Role: To act as co-counsel, raise money and publicize the case.
The right to speak and post anonymously online is being threatened by companies
and individuals who have begun using civil subpoenas to demand that the speaker's
Internet service provider reveal his or her identity. Unlike criminal warrants,
civil subpoenas do not require showing of probable cause or any other court review.
The cases we are currently working on involve people who anonymously posted comments
on chatrooms for publicly traded companies and have subsequently been targeted
by employers or other parties who want their identities revealed.
Kesler v. Doe
The EFF filed an amicus brief in the California Court of Appeal in support of
a John Doe, "Mezzzman," who was sued by the president of Metalclad after
posting messages critical of him on a Yahoo message board. Mezzzman brought a
motion under a California law, called the anti-SLAPP law (Strategic Lawsuits Against
Public Participation), designed to allow defendants in cases aimed at silencing
their speech to quickly dispose of the case. The case is anticipated to be the
first to consider the application of the California law to anonymous Internet speech.
AT ISSUE: Whether and how California's law protecting speakers against lawsuits aimed
at silencing them applies to anonymous speakers on the Internet.
EFF Role: Amicus Curiae on its
own behalf. Pro Bono counsel for Mezzzman is Ryan Roth of the lawfirm of Paul,
Hastings, Janofsky & Walker LLP in Los Angeles, CA
Ford v. Great Domains
Using laws intended to prevent "cybersquatting", Ford has sued several
independent Web site operators whose domain names contain, in part, the words
"volvo", "ford" and "jaguar", but whose content
and appearance vastly differ from Ford's corporate sites. In the most egregious
example, Ford is accusing www.jaguarcenter.com-a site about big cats created by
a child- of trademark infringement. See also the Detroit Free Press article about
EFF defendents have challenged
jurisdiction, stating it was unfair to force all of them - several of whom live
abroad - to defend the case in Detroit. The court denied the motion and allowed
limited discovery into the jurisdictional issues.
At issue: Protecting the right to publish on the Internet without fear of being
unfairly sued for trademark infringment; preventing "domain name hijacking",
in which large corporations use their resources to effectively steal desired domain
names from individuals who may not be able to afford to defend themselves. (Updated
September 25, 2001)
EFF's role: Defending several of those charged, along with pro bono assistance
from Eric Grimm and David Lowenschuss in Michigan.
FleetBoston Financial Corp
Ashcroft v. ACLU a.k.a. ACLU v. Reno II (the Child Online Protection Act [COPA]
COPA makes it a federal crime to "knowingly" communicate online material
considered "harmful to minors" (not based on where you live, but in
the most conservative jurisdictions anywhere in the country). Its enforcement
has been halted pending the outcome of this court case, which will resolve its
constitutionality. On Feb. 13, 2001 the government filed its petition of certiorari in
this case, asking the Supreme Court to review the case and to overturn the preliminary
injunction against COPA. The ACLU, EFF and other parties are filing an opposition
response April 16, 2001.
We are hopeful that the Supreme Court will deny review because this case is virtually
indistinguishable from Reno v. ACLU, in which the Supreme Court struck
down the CDA. Should this happen, the preliminary injunction against enforcement
of COPA will become final. If the Supreme Court does review the case, however,
then both sides will have a chance to participate in oral argument before the
Supreme Court. The case, which was titled ACLU v. Reno II in the trial court,
is now titled Ashcroft v. ACLU at the Supreme Court level (because of the recent
change in DoJ administration). (updated April, 2001)
At issue: Our online First Amendment rights are threatened by this legislation
in much the same way they were with its predecessor, the defeated Communications
Decency Act (CDA).
EFF's role: The EFF and the ACLU have established a joint litigation strategy
to combat COPA.
(Internet content blocking, filtering, ratings & labelling)
American Library Association
v. United States
Congress recently passed the Children's Internet Protection Act (ChIPA or CIPA),
a controversial censorware law that will force public and private libraries (and
schools) that receive any of several federal funding sources to install Internet
blocking software, or else be denied a variety of vital federal funding. EFF is
working with the ACLU to fight this mandatory censorware law. For more information
on why this law is flawed, see EFF's ChIPA analysis. To find out what you can
do to help stop censorware, join EFF' Blue Ribbon Campaign for Free Speech. Discovery
starts soon, and the government has filed a motion to dismiss. The trial is slated
to start in Feb, 2002. (Updated July
At issue: Mandatory blocking software denies individuals access to constitutionally
EFF's role: The EFF, the ACLU and other have established a joint litigation strategy
to fight this law.
Judnick v. Doubleclick
Last year a case was filed against Doubleclick, an online banner ad company, alleging
EFF is acting in an advisory role in the Doubleclick case to help draft meaningful
remedies that better protect online privacy. For more information on the case,
see the Rothken Law Firm Web site. (Updated September
At issue: That online privacy is protected.
EFF's role: EFF acts in an advisory role.
Konop v. Hawaiian Airlines
In this case a Hawaiian Airlines executive impersonated an airline pilot in order
to gain access to a private, password-protected Web site established by Hawaiian
Airlines pilot Robert Konop as a confidential forum for criticizing labor-management
issues. Once there, the Hawaiian executive acquired the contents of Konop's communications
with registered users of his Web site. TheNinth Circuit decision held, among other
things, that Hawaiian "intercepted" Konop's communications under Title
I of the Electronic Communications Privacy Act ("ECPA"). EFF supports
the decision, which rejected the erroneous interpretation of "interception"
in Steve Jackson Games Co. v. U.S. Secret Service.
At issue: In order to protect 4th Amendment rights, acquisition of private Web
site communications should be treated as an "interception" under ECPA.
EFF's role: EFF filed an amicus brief on behalf of Web site operator Konop.
One of the favorite tactics of well financed entities when facing embarassing
information is to seek to silence the adversary through expensive lawsuits. (Recent
and ISP Liability
Als Scan v. RemarQ
This case deals with a copyright owner seeking to compel an online service provider
to remove/disable access to two entire news groups merely by alleging that they
contained unspecified articles that infringe copyrighted works. EFF submitted
an amicus brief asking for a rehearing which was denied. This case is over (updated
July 6, 2001)
At issue: Service-provider responsibility for user copyright infringements poses
a threat to free speech on the Internet.
EFF's role: EFF submitted an amicus brief on behalf of RemarQ.