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Subject: EFFector 15.24: EFF Submits Comments to FCC, Johansen Trial
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EFFector       Vol. 15, No. 24       August 9, 2002      ren@eff.org

A Publication of the Electronic Frontier Foundation	  ISSN 1062-9424


In the 224th Issue of EFFector:

* EFF Submits Letter to FCC Chairman Regarding BPDG Proposal
* Update on Intel Corp. v. Hamidi
* DeCSS Author Johansen's Trial Rescheduled
* Bunnie Presents Paper on XBox Reverse Engineering
* Thanks to DefCon!
* EFF Booth at LinuxWorld
* Deep Links: Baen Books' Releases Reader-Friendly E-Books
* Deep Links: Janis Ian on P2P
* Deep Links: Hometown Paper Discusses Rep. Coble's Support of 
	Berman P2P Hacking Bill
* Administrivia


For more information on EFF activities & alerts: http://www.eff.org/

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--------------------------------------------------------------------

* EFF Submits Letter to FCC Chairman Regarding BPDG Proposal

The Honorable Michael K. Powell Chairman Federal Communications
Commission 445 12th Street, S.W. Suite 8C453 Washington, DC 20554


BY FACSIMILE, ELECTRONIC MAIL, AND POSTAL MAIL

Dear Chairman Powell:

I am writing to you today in regards to the digital television
Broadcast Flag; specifically, I write in response to Sen. Hollings'
and Representatives Dingell and Tauzin's letters of July 19, which
urged you to mandate the Broadcast Flag proposal outlined in the
final report of the Broadcast Protection Discussion Group.

The Electronic Frontier Foundation (EFF) is a donor-supported
non-profit organization that works to uphold civil liberties
interests in technology policy and law. EFF has played a critical
role in safeguarding crucial freedoms related to computers, the
Internet and consumer electronics devices, defeating the restriction
on strong cryptography exports; securing the legal principle that
Internet wiretaps must only proceed in conjunction with a warrant;
and defending academics, researchers and commercial interests
against DMCA-related prosecution.

EFF was an active participant in the Broadcast Protection Discussion
Group. We attended the group's meetings and conference calls and
participated in the group's policy and technical mailing-lists. EFF
also maintains a web-site that was and is the only public source of
information on the Broadcast Flag negotiations and proposal. The
site can be found at http://bpdg.blogs.eff.org. EFF devoted
thousands of staff-hours to publicizing the existence and nature of
the BPDG to the public, to civil liberties and consumer-advocacy
groups, and to entrepreneurial companies and software authors whose
products were threatened by the proceedings.

When you and I met at Esther Dyson's PC Forum last March, we spoke
briefly about the civil liberties interests that would be undermined
by the Broadcast Protection Discussion Group's mandate. The BPDG
proposal will have grave consequences for innovation, free
expression, competition and consumer interests. Worst of all, it
will add unnecessary complexity and expense to the DTV transition,
compromising DTV adoption itself.

As you are aware, technologists have traditionally manufactured
those devices they believed would be successful in the market, often
in spite of the misgivings of rights-holders. From the piano roll to
the PVR, technologists have enjoyed the freedom to ship whatever
products they believe the public will pay for; what's more,
innovation has always thrived best where there were the fewest
regulatory hurdles. NTSC tuners and devices are governed by precious
few regulations, and consequently we see a rich field of products
that interact with them, from the VCR Plus to tuner-cards for PCs to
the PVR. The Broadcast Flag proposal would limit technologists to
shipping those products that met with the approval of MPAA member
companies. No entrepreneur or software author will know, a priori,
whether his innovative DTV product will be legal in the market until
he has gone to the expense of building it and taking it around to
the Hollywood studios for review.

Consumers and industry alike have benefitted greatly from the "Open
Source" or "Free Software" movement, in which technologies are
distributed in a form that encourages end-user modification. From
server-software like the web-wide success-story apache, to operating
systems like GNU/Linux, to consumer applications like the Mozilla
browser, Free Software is a powerful force for innovation, consumer
benefit and commercial activity. The BPDG proposal implicitly bans
Free Software DTV applications -- such as the DScaler de-interlacer
and the GNU Radio software-defined radio program -- as these
applications are built to be modified by end-users, something that
is banned under the BPDG proposal. The tamper-resistance component
of the BPDG's "Robustness Requirements" will create and entire class
of illegal software applications, abridging the traditional First
Amendment freedom enjoyed by software authors who create expressive
speech in code form under one of several Free Software/Open Source
licenses.

The BPDG nominally set out to create an objective standard, a bright
line that technologists could hew to in order to avoid liability
when deploying their products. However, the end product of the BPDG
was a "standard" that contained no objective criteria for legal
technology; rather, the standard required that new technologies be
approved by MPAA member companies. Not uncoincidentally, the only
technologies that were approved by the MPAA -- and hence the only
legal technologies -- were those produced by the 4C and 5C
consortia, a group of technology companies that acted as the MPAA's
allies throughout the BPDG process. This is an harbinger of the sort
of regime that the BPDG standard will usher in: technology companies
will be able to shut their competitors out of the marketplace by
allying themselves with Hollywood, brokering deals to allow certain
technologies and outlaw others.

The marketplace is a proven mechanism for rapidly and efficiently
producing products that increase the value and desirability of new
technologies, such as DTV. A BPDG mandate would subvert the market
for DTV innovation. Competing companies with lower-cost DTV
technology alternatives would be restrained from bringing these to
market if they failed to assuage the MPAA's concerns about
unauthorized redistribution. Furthermore, the universe of
unauthorized-but-lawful uses for DTV programming will be shrunk down
to the much smaller space of explicitly authorized uses. The ability
of the public to make unauthorized-but-lawful uses of television
programming has been an historical force for increasing the value of
broadcast programming, from the VCR to the PVR.

Ironically, the inevitable damage that a Broadcast Flag mandate
would do to innovation, competition and consumer interests can only
slow down DTV adoption, by driving up the cost of DTV devices while
reducing the number of desirable features that an open market would
create. If the public is offered less functionality for more money,
they will not flock to DTV.

The most disheartening thing about the Broadcast Flag is that there
is neither a strong case that the Broadcast Flag is a necessary tool
for protecting copyright, nor that the Broadcast Flag would be
effective in that role. The existing practice of Internet
infringement of broadcast programming -- analog captures from
devices that satisfy the requirements of the BPDG proposal -- would
not be stopped by the presence of a Broadcast Flag.
Higher-resolution DTV signals will likewise present no challenge to
determined infringers, who can capture full-quality analog signal
from DTV devices and then re-digitize them, suffering only a single
generation's worth of loss-of-quality before the programming enters
the Internet.

Meanwhile, the underlying rubric for a Broadcast Flag -- that
infringement will undermine Hollywood's business to the point that
movies will no longer be available to the public, reducing the value
of DTV -- is no more than superstition. No credible study or
analysis, undertaken by a neutral party, has ever been presented to
Congress, the FCC, the CPTWG or the BPDG supporting this notion. The
public is being asked to sacrifice its rights in copyright; industry
is being asked to place its right to innovation in the hands of
entertainers; the US government is being asked to mandate
extraordinary, unprecedented regulation of the $600 billion
technology sector -- all on the uncorroborated opinions of a few
studio executives.

EFF welcomes the FCC's oversight of the Broadcast Flag issue. The
BPDG proceedings took place behind a shroud of secrecy, in a
looking-glass "public process" where only those participants the
organizers wanted to hear from were made privy to its existence,
where the co-chairs invented rules and processes on the fly to suit
the needs of the entertainment interests and the technology
companies that had privately secured a promise of a legal monopoly
for their products, where the press was banned.

The FCC has an admirable tradition of seeking and weighing public
opinion in its proceedings. As the FCC considers the Broadcast Flag,
EFF hopes that it will start anew, setting aside the findings of the
BPDG in light of the concerns raised by Microsoft, Philips, Sharp,
Thomson, and Zenith, as well as non-profit organizations including
EFF, Consumers Union, Consumer Federation of America, the Free
Software Foundation, Public Knowledge, digitalconsumer.org, the
Center for Democracy in Technology, and the Computer and
Communications Industry Association.

Thank you for attention in this matter. Please let me know if we can
be of any further assistance to you.

Sincerely yours,

Cory Doctorow for the Electronic Frontier Foundation



Links: 

EFF's BPDG Blog: 
http://bpdg.blogs.eff.org 

An overview of our concerns with the broadcast flag:
http://bpdg.blogs.eff.org/archives/one-page.pdf 

Letter from Sen. Hollings: 
http://bpdg.blogs.eff.org/archives/000155.html 

Letter from Rep. Tauzin: 
http://bpdg.blogs.eff.org/archives/000156.html


--------------------------------------------------------------------

* Update on Intel Corp. v. Hamidi

Intel Corp. v. Hamidi is now on appeal to the California Supreme
Court. EFF filed an amicus brief in support of Ken Hamidi on Aug. 6,
2002. The facts are simple: Over about two years, Hamidi on six
occasions sent e-mail critical of Intel's employment practices to
between 8,000 and 35,000 Intel employees. Intel demanded that Hamidi
stop, but he refused. Intel obtained an injunction barring Hamidi
from e-mailing Intel employees at their Intel e-mail addresses,
based on the common-law tort of "trespass to chattels." ("Chattel"
is a legal term that refers to personal property, as opposed to
property in land.)

EFF's amicus brief argues three main points.

(1) Intel did not qualify for relief under "trespass to chattels"
because Intel's e-mail servers were not themselves harmed by
Hamidi's e-mails. If Intel was harmed, it was because the content of
Hamidi's e-mails affected Intel employees, not because sending the
e-mails affected the functioning of Intel's servers.

(2) By focusing on unwanted "contact" with the chattel and ignoring
the harm requirement, the court of appeal turned "trespass to
chattels" into a doctrine that threatens common Internet activity
like search engines and linking. For example, if a website posted a
"no trespassing" sign, any "contact" by a search engine could be
considered a trespass even if it caused no harm.

(3) The court of appeal wrongly held that the injunction did not
infringe Hamidi's freedom of speech. The First Amendment limits
private parties' legal remedies in many areas of law, such as libel,
out of concern that private parties will use the law to suppress
criticism. The same principle should apply here, where Intel's
claims of harm stem from the meaning of Hamidi's speech.


Links: 

The Intel v. Hamidi Archive:

http://www.eff.org/Cases/Intel_v_Hamidi/

- end -

--------------------------------------------------------------------

* DeCSS Author Johansen's Trial Rescheduled

The trial of Norwegian teen Jon Johansen, who created the
controversial DeCSS software, has been pushed back again. It is now
scheduled to be heard on December 9, 2002, in Oslo, Norway. In the
fall of 1999, Johansen and his team reverse-engineered the content
scrambling system (CSS) software used to encrypt DVDs in an effort
to build a DVD player for the Linux operating system. In January of
2002, the Norwegian Economic Crime Unit (OKOKRIM) charged Johansen
with a violation of Norwegian Criminal Code Section 145.2, which
outlaws breaking into a third-party's property in order to steal
data that one is not entitled to. This prosecution marks the first
time the law will be used to prosecute a person for accessing his
own property (his own DVD). Johansen faces two years in prison if
convicted. The prosecution is based on a formal complaint filed by
the Motion Picture Association.

The trial had originally been scheduled to take place in June of 
2002 but was rescheduled when the court could not find any qualified 
judges to hear Johansen's case.  Now the case is scheduled to be 
heard by a three-judge panel. Help Jon in his battle against 
Hollywood movie studios, donate to his legal defense fund at: 

http://www.eff.org/support/jonfund.html

Links: 

The DeCSS/Johansen Archive:
http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/

Digital Rights Management Archive: 
http://www.eff.org/IP/DRM/

- end -

--------------------------------------------------------------------

* Bunnie Presents Paper on XBox Reverse Engineering

Paper Explains Flaw in Videogame Security System

Researcher Escapes Chilling Effect of Digital Copyright Law

Electronic Frontier Foundation Media Advisory

For Immediate Release: Thursday, August 9, 2002

San Francisco - The Electronic Frontier Foundation (EFF) is pleased
to announce that former MIT doctoral student Andrew "Bunnie" Huang
will present a paper explaining a security flaw in the Microsoft
Xbox (TM) videogame system.

Huang will present his paper, "Keeping Secrets in Hardware: the
Microsoft X-BOX Case Study," at 5:25 p.m. PDT on August 13, 2002, at
the 2002 Workshop on Cryptographic Hardware and Embedded Systems
(CHES 2002) in Redwood City, California (Aug. 13-15, 2002).

The Xbox security system is intended to allow people to play only
videogames authorized by Microsoft. Huang's paper "shows how a
person could defeat that system with a small hardware investment,"
said MIT Professor Hal Abelson, one of Huang's advisors. "More
importantly, the paper relates the security vulnerability to a
general design flaw shared by other high-profile security systems
such as the government's Clipper Chip and the movie industry's
Contents Scrambling System (CSS) for DVD players."

Huang contacted EFF in March after his advisors told him that his
preliminary findings raised potentially significant legal questions.
With the help of Boston College law professor Joe Liu, EFF worked
with Huang, Abelson, and MIT administrators to analyze the legal
issues and draft letters notifying Microsoft of Huang's research
findings and intended publication, one of the steps encouraged by
Digital Millennium Copyright Act (DMCA).

Microsoft told Huang and Abelson that while it might prefer that the
paper not be published, it would be inappropriate to ask MIT to
withhold the paper.

"Microsoft deserves praise for making no attempt to control
publication," said Abelson. "Their response shows that they value
academic freedom, and that they appreciate the critical role of
unfettered research and publication in advancing technology."

Other companies have reacted otherwise, using the DMCA to threaten
researchers. The Recording Industry Association of America last year
warned Princeton Professor Edward Felten after his research team
exposed weaknesses in digital music security technologies. Last
month, Hewlett Packard (HP) threatened research collective SnoSoft
over exposing a security vulnerability in HP's Tru64 Unix operating
system. Soon after, HP clarified that it would not use the DMCA to
stifle research or impede the flow of information that would improve
computer security.

Huang said that while he is glad he can openly present his paper,
"The DMCA clearly had a chilling effect on my work. I was afraid to
submit my research for peer review until after the EFF's efforts to
clear potential legal restraints."

"Researchers should be analyzing security, not worrying about
getting sued," said EFF Senior Staff Attorney Lee Tien.

Links:

For this release:
http://www.eff.org/IP/DMCA/20020808_eff_bunnie_pr.html

For Huang's paper:
ftp://publications.ai.mit.edu/ai-publications/2002/AIM-2002-008.pdf

For the CHES program: http://islab.oregonstate.edu/ches/program.html

EFF "Unintended Consequences: Three Years Under the DMCA" report:
http://www.eff.org/IP/DMCA/20020503_dmca_consequences.pdf

RIAA sues Professor Edward Felten over SDMI:
http://www.eff.org/Legal/Cases/Felten_v_RIAA/

An article about Hewlett-Packard's threatening SnoSoft:
http://www.wired.com/news/technology/0,1282,54297,00.html

- end -

--------------------------------------------------------------------

* EFF Thanks Defcon

EFF thanks The Dark Tangent and other organizers of the DEF CON X
convention for their generous donation of exhibition space at DEF
CON (http://www.defcon.org/). DEF CON is an "underground" computer
security conference held each summer in Las Vegas.

Links: 

Defcon Website: 
http://www.defcon.com/

- end -

--------------------------------------------------------------------

* EFF Booth at LinuxWorld

Come visit EFF at booth #488 at Linuxworld next week. We'll be
passing out information, good cheer, and a slew of new stickers.

When: August 13 - 15
	10a - 5p

Where: Booth #5
	Moscone Center 
	747 Howard Street
	San Francisco, CA 94103

Links: 

LinuxWorld Conference Website: 
http://www.linuxworldexpo.com/

Floor Map and EFF Booth:
http://www.linuxworldexpo.com/linuxworldexpo/v31/floorplan/floorplan
.cvn?b=97& exbID=50

- end -

--------------------------------------------------------------------

Deep Links 

Deep Links is a new department in the EFFector featuring noteworthy 
news-items, victories and threats from around the Internet.


* Baen Books expands fair-use-friendly e-book program

Baen Books will bind a CD-ROM into the October 2002 hardcover
edition of *War of Honor,* the latest volume in David Weber's epic
Honor Harrington space-opera. The CD will contain at least 22
complete novels, all in open formats like html and RTF, with the
fair-use-friendly admonishment "This disk and its contents may be
copied and shared but NOT sold." Included on the disk are the entire
Honor Harrington series to date, as well as other titles from the
Baen line, including Keith Laumer's *Retief!* and Larry Niven and
Jerry Pournelle's *Fallen Angels*.

Baen has been a banner-carrier for fair-use in electronic
publishing, shipping text and html files that can be played on a
multitude of devices. Other publishers have chosen to publish their
material in copy-controlled formats that make it impossible to
legally loan or resell the titles you purchase, are locked to a
specific device, can't play on every operating system, and
occasionally lock out assistive technology like the screen-readers
employed by the blind.

Dmitry Skylarov, a Russian scientist, was arrested in July 2001, for
demonstrating how end-users could defeat the copy-prevention
employed by Adobe's e-book technology. Adobe asked the FBI to arrest
Skylarov for violating the Digital Millennium Copyright Act (DMCA),
which makes it a crime to describe techniques for circumventing
copy-prevention technology. Though Skylarov was later released, his
employer, ElcomSoft, is still facing charges in the USA, and the
Russian government has issued an advisory warning Russian scientists
to steer clear of American technical conferences until the DMCA is
repealed.

Here is Baen's statement on the CD release:

You are about to start playing with a CD-ROM that has fairly
extraordinary content. As of this writing it includes twenty-two
UNENCRYPTED novels in several formats, the ten Honor Harrington
Novels, 3 Honor Harrington Anthologies and 9 novels by friends of
Honor, and by the time of distribution it may well contain more.
(More than twenty novels for free, and with no stupid codes to work
around. Think of that.) The reason for the plethora of formats is to
try to please the people who want to read the novels on their Palm
Pilots or other text-specialized palm-sized devices.

Links:

Baen Books's page for *War of Honor*:
http://www.baen.com/orientation.htm

Slashdot discussion of *War of Honor* release:
http://slashdot.org/article.pl?sid=02/08/03/2314232&mode=flat&tid=
149

EFF documents on Dmitry Skylarov and ElcomSoft:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/

EFF documents on the Digital Millennium Copyright Act (DMCA):
http://www.eff.org/IP/DMCA/

- end -

* Singer/Songwriter Janis Ian on P2P Lucid article on the benefits of
peer-to-peer networks form an artists' perspective.
http://www.janisian.com/article-internet_debacle.html

- end -

* Hometown Paper Discusses Rep. Coble's Support of Berman P2P Hacking
Bill Column on how a good Representative can make a bad call.
http://www.news-record.com/news/columnists/staff/cone04.htm

- end -


--------------------------------------------------------------------

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