Brian opened September 13, 2000, meeting.
Bill made a pitch for LUGOD.
Bob Speth sent me these notes via email.
From: "Bob Speth"
To: awerg@11st.com
Subject: SacLug Meet of 9-13-2000
Date: Fri, 15 Sep 2000 04:17:23 GMT
Andy,
Unexpectedly, I was able to make the meeting last night. I took some notes
as I did not see any body respond to your request for assistance. Prior to
the end of the meeting, I discovered that someone else was taking notes and
they seemed to know what they were doing. Perhaps you found someone or
perhaps they were reporting for SacBee or the like.
Anyway, I attach what I was able to capture. The notes may not flow as the
meeting went as I forget to number my pages. Feel free to use all, part, or
none of what follows.
Bob
Brian opened September 13, 2000, meeting.
Bill made a pitch for LUGOD.
Robin Gross’s Presentation:
Electronic Frontier Foundation: Non-profit; in existence for 10 years.
Purpose for existence: Protect our liberties on the Internet
Major Activities:
1. Blue Ribbon Campaign - represents freedom of speech and global awareness
- First Amendment
2. Litigation - especially that which sets legal precedence.
- Communications Decency Act (CDA).
- Teamed with ACLU and other Civil Rights groups.
- Dan Burnstein case. Is an encryption professor. Government
wanted him to have a munitions license.
- Younger case (April 2000) = computer code is free speech.
- DVD and Johann Johanssen.
Johann Johannsen is a teenager who purchased a DVD player while on vacation,
some where in Europe. When he returned home to Norway, he discovered that it
would not play Norwegian DVDs due to Region Code Restrictions. He realized
that this deficiency could be fixed, given his Linux user experience. He and
a couple of others wrote (Robin later stated that someone in Germany wrote
the code) a solution known as DECSS (the CSS stands for Content Scrambling
System). They posted the solution to a Linux Video (LIVID) list. The Motion
Picture Industry (MPI) went berserk.
MPI filed a suit some time between Christmas and New Year's Day in 1999. In
Santa Clara, DVDCCA (an organization that movie studios use for licensing)
made a California State Trade Secrets Misappropriations claim (any one who
posts DECSS is illegally misappropriating trade secrets).
MPI's position is that who ever did the reverse engineering must have first
clicked on a licensing agreement (the action of clicking binds the user to
the terms of the license). However the MPI cannot find the licensing
agreement that was clicked on nor is it able to identify who did the reverse
engineering. It needs to find some one who clicked on the licensing
agreement and therefore was bound to not reverse engineer the code.
No one is committed to keep trade secrets unless they have agreed to do
such. If they do agree, and do not keep trade secrets then there is a
misappropriation. MPI's theory is that when you install the software you
have to first click on the agreement. Once you have, you have agreed to keep
trade secrets.
Reverse engineering is protected under law.
The Uniform Computer Information Transactions Act (UCITA) is not law in
California but is likely to be introduced. Under UCITA you can click away
all your rights. Primary pusher of UCITA is Microsoft.
Status of California Case:
In January 2000, a California judge issued an injunction against Andrew
Binder and other defendants. Matt Pavolovich (sp?) (associated with LIVID)
filed a suit to have the case against him quashed as he is not a resident of
California. He resides in Texas. A California judge denied Matt's motion
citing two cases but not giving any reasons for the denial other than
California can go after Matt. This is not an interstate commerce issue.
Robin sees it as an attempt to define how much power California has to go
outside the state to pursue Matt (and others) for what it thinks is illegal.
Matt filed an appeal two days ago.
This injunction bans linking to software too. EFF filed to have a hearing
about the suit this Winter. May have to take it to the California Supreme
Court.
A reference was made about John Young, an on-line archivist. See jya.com
and krypton.com.
Robin stated that there was much misinformation presented by the MPI.
Q: Does EFF have to go after the misinformation?
A: That is a strategy decision. EFF does not want to as it wants to focus
on core Freedom of Speech/First Amendment issues. Cannot afford to spend
resources correcting the misinformation. But, it depends.
The biggest case is in New York. The MPI filed a lawsuit against 2600
Magazine and Manuel Goldstein. The theory in the New York case is that DECSS
is an illegal circumvention device of copy protection. The Digital
Millennium Copyright Act (DMCA) may have criminalized reverse engineering
and code modifications to bypass commercials. It may also have made it a
crime to fast-forward through commercials. The New York judge is buying MPI
arguments. He issued an injunction. EFF will appeal.
Anticircumvention:
Anything that is wrapped up in encryption is now off limits due to the
DMCA. Even the making of tools to circumvent the ____________ is illegal.
The definition is defined very broadly so anything could be declared
illegal.
Q: Doesn't the Supreme Court shoot down broad laws?
A: That is what we are hoping for.
The Burnstein case was to have access to very strong encryption. We have
the right to encrypt. Now we need to gain the right to decrypt.
Q: Have any of the Studios or the DVD licensing group claimed any actual
loss?
A: No. They were forced to concede at the trial that they could not find a
single instance of piracy. In fact, they performed a decryption experiment
for the purpose of the trial. It took 20 hours for an expert and an
assistant to be successful. Most people would not be able to perform the
same feat.
There is a question of precedence. What makes a binding precedence?
Something is only binding if the court issues a ruling that is binding upon
you. The whole country is bound by US Supreme Court ruling. If in the Ninth
Circuit Court (California), you have to follow the Ninth Circuit Court
opinions. For areas outside of the Ninth Circuit Court, the Court's opinion
should be persuasive but it is not binding.
A judge is compelled to rule in a consistent manner.
Q: What is required for a judge to overturn precedence?
A: There are always slightly different facts and slightly different ways of
thinking about the facts. Judges can then issue an opinion. If the Circuit
Court agrees, then the precedence can be overturned.
Q: Is there any hope that can be drawn from the Sony/BetaMax case?
A: Movie studios, in the 1980's, tried to outlaw VCRs. The Supreme Court
said that you cannot outlaw technology just because some part of the
technology is illegal. Also there has to be some public domain use allowed.
The judge claimed that DCMA overruled the Sony/BetaMax decision. There is a
very important question - can Congress take away some individual rights?
Q: How long did the Sony BetaMax case take?
A: About 6 years.
ZING Player Company:
This company forgot to encrypt their code thus making it easy to reverse
engineer. A requirement to maintain trade secrets is that their owner must
take provisions to protect their trade secret.
Q: Is it legal to reverse engineer in those countries that do not protect
licenses?
A: Yes.
Norway is very much in support of their teenager. It is opposed to Corporate
America's attempts to impose a corporate regime in their country.
If somebody does come forward and admits to the act, the case would
eventually fall apart. All that is known about the perpetrator is the handle
of "MAX". No one knows who this MAX is.
Q: Can you circumvent the click through license? To find the encryption key
and reverse engineer?
A: Yes.
The movie studios have been very successful in using the DMCA as they feel
they have the right to dictate how consumers use their products.
The concept of Fair Use is part of Copyright Law. It provides some breathing
room required by the First Amendment. Intellectual Property is proving to be
the biggest threat to the First Amendment.
Judges are afraid of the Internet and are over reacting with the protection
of Intellectual Property.
The trial court in New York (Second Circuit) tends to make rulings favorable
to the publishing industry. The Ninth Circuit Court in California is the
most technologically aware and favorable.
Q: How do you push issues up so you are not fighting a lot of little
battles?
A: Well, you have to pick and choose.
The New York judge dismissed EFF’s witnesses. It looks like he thought what
they had to say were lies. The NY judge is Louis Kaplan. He previously
worked in NY law firms and advise Time-Warner on their DVD strategy. His
sitting on the bench for this case is a violation of Judicial Ethics Code =
Conflict of Interest!
EFF filed a motion which the judge dismissed. EFF appealed to the Second
Circuit Court. If the Second Circuit Court agrees that the judge should not
have heard the case, it will have to be reheard. And there is need for a
fair judge.
EFF wants to get to the Supreme Court in order to set a wide precedent. EFF
thinks that the Supreme Court is favorable to EFF’s point of view. It is not
uncommon to obtain the current type of ruling at the District Court level.
A strange ally is Orrin Hatch. Hatch recently was at odds with his long-time
associate, Hillary Rosen. Hatch seems to feel that the MPI has gone too far.
Has always been a staunch supporter of copyrights.
MEMBERSHIP PITCH:
This battle is the greatest project/battle ever undertaken by EFF. Since
this group understands the technical issues, this group should be members.
Memberships begin at $65 for the basic level; $25 for students. Besides
cash, check, credit card will also take gold and PayPal. I hope that you
will all join and contribute to the cause.
Q: Any penalty to enter in evidence anything untrue?
A: No.
Q: Can you create an incident to base a case upon?
A: Yes. We were planning on doing just that when the MPI filed. We
had arranged for an encryption professor to be the plaintiff. He
was to post code on his website to be used as classroom material.
But the MPI beat EFF to the punch. So we picked up the defense of
2600 Magazine.
Q: If EFF fails, will they be arrested for DECSS T-shirts?
A: That is possible. Steve _______ was a named defendant for selling
T-shirts. Yet the Washington Post printed pictures of the
T-shirts. Hence it is possible that they can be added.
A professor at Carnegie Mellon has a website of ways to defeat encryption.
Computer code is a precise method of communication. Younger (Fourth Circuit
Court in Chicago) and Burnstein (Ninth Circuit Court) decisions are not
binding precedents in NY.
To be a licenser there has to be knowledge and consent to the license
agreement. Barring that it is a straight sale with all rights of ownership.
Under the MPI theory, users can only play DVD on the machines they control.
DECSS was a legitimate Linux reverse engineering effort. The CSS license
limits all kinds of functionality. The MPI will not put the functions into
the machine that users want. DECSS was a attempt to break the MPI’s
monopoly.
Q: Can you contrast this with Adobes’ Type 1 Fonts? Their fonts were
encrypted and Adobe issued a challenge for breaking the
encryption. Some one did come out with a decrypter.
A: (lost).