February 13, 2002

EFF lawyer: Recent rulings mean Open Source developers need to be careful

Author: JT Smith

- By Grant Gross -

It's been a challenging past few weeks for Open Source/Free Software-related issues in the courts. Two cases with implications for Free Software developers and fans have hit roadblocks, and the creator of DeCSS, which allows Linux users to decode and play DVDs, was charged with a crime in Norway.

In mid-January, DeCSS programmer Jon Johansen was charged with violating a Norwegian law originally designed to keep people from accessing others' phone and bank records.

Later in January, Eric Corley of 2600.com filed an appeal in a ruling that prohibited his site from posting that same DeCSS code. The lower court ruled that posting the code didn't qualify as free speech.

And just last week, Princeton Professor Edward Felten and his team of researchers decided to drop their case against the music industry and the U.S. government over threats music industry officials made as Felten's team planned to present its research on an anti-copying technology. Felten had challenged the music industry's attempts, with threat of prosecution under the U.S. Digital Millennium Copyright Act, to block the team's research from being presented. What's ironic is the music industry had challenged the scientific and programming communities to break the Security Digital Music Initiative's anti-copying technology, but objected to the results being published.

A common thread in each of these cases is the involvement of the Electronic Frontier Foundation. The EFF has a 12-year track record of defending civil liberties related to the Internet and other technology, and the San Francisco organization has often stepped in to help on issues related to Open Source, taking on heavyweights like the U.S. music and movie industries. We asked Robin Gross, the EFF's intellectual property lawyer, to talk about the impact on Free Software of the Felten case, the DeCSS cases, and the U.S. government's prosecution of Russian programmer Dmitry Skylarov and now his employer under the DMCA.

NewsForge: What implications does the dropped Felten lawsuit have on scientists and programmers, especially Open Source/Free Software developers, who sometimes
attempt to reverse engineer programs in the name of research, work or simple curiosity?

Robin Gross: There is much uncertainty for these scientists and programmers. Under the language of the DMCA's anti-circumvention provisions, anyone who makes or provides technology, including software or information, that could help
someone bypass digital locks that control access to copyrighted works would
violate the law. While the DMCA purports to have exemptions to the general
ban on circumvention, they do not reach what most scientists actually do and
don't allow them to publish their results in any event. So there is a lot
of risk that programmers and researchers will be prosecuted.

NewsForge: What legal advice would you give to an Open Source/Free Software developer who's attempting to reverse engineer a program, say a popular word
processor, in order to make it more compatible with Linux or one of the BSDs?

Robin Gross: They could be opening themselves up to lawsuits if they bypass controls that regulate access to works or if they write a program that can access or
copy works. They should consult an attorney before doing the work if they
want to be sure.

NewsForge: The EFF recently filed a brief in the Dmitry Sklyarov/Russian eBook case asking the court to declare the DMCA unconstitutional. During the Felten presentation last August I asked EFF legal director Cindy Cohn something like, "Why not throw the whole thing out?" and she said something to the effect of, "We're not there yet." Is the EFF now advocating that the whole DMCA be scrapped, or just its anti-circumvention provisions? If it's the whole thing, why the change in focus?

Robin Gross: EFF believes the DMCA's anti-circumvention provisions must be declared unconstitutional or else substantially reformed.

NewsForge: 2600 magazine filed for a rehearing in its case in January, and Eric Corley recently promised to keep fighting. What's the status of the case right now?

Robin Gross: We are waiting for a decision from the 2nd Circuit Court of Appeals -- no word yet.

NewsForge: Are there broader implications for news Web sites or personal Web sites that have linked to DeCSS or other potentially prohibited code? Do you think the
motion picture industry would ever come after anyone besides 2660.com?

Robin Gross: Under the court's decision in the 2600 Magazine case, anyone who links to DeCSS intending to distribute it can be banned by the statute. Any link
can be construed as intent to disseminate the code -- since that's what a
link really is -- information that tells you where you can find a particular
piece of information. Other journalists who want to provide links to the
software in question, can be found to violate this law. Its breadth is
extremely expansive.

NewsForge: What legal advice would you give to a Web site that has linked to the DeCSS code? (I know of no such sites, of course.)

Robin Gross: Watch out for the threat letter from the MPAA!

NewsForge: What's the status of the Jon Johansen case? How is the EFF involved in
that case?

Robin Gross: Jon's trial has been set for June 3rd and is expected to last six days before a three-judge panel of the Oslo City Court. EFF does not represent Jon, but we
have been advising his attorneys and have started a fund to help him pay
for his legal defense.

NewsForge: Why do you think did the Norwegian government is only now prosecuting Johansen for creating DeCSS in 1999?

Robin Gross: It could be because we had a victory in the California DeCSS case in November that ruled folks had a First Amendment right to publish information that they obtain in the public domain and simply want to republish on their site. Perhaps this is the MPAA's response -- to apply more pressure on Norway to criminally charge him.

NewsForge: Another subject shift: What's going on with UCITA? Is it dead, other than in
the states that already passed it (I happen to live in one of those), or is it likely to keep on coming back?

Robin Gross: UCITA has been passed in only two states -- Virginia and Maryland. Three other states have passed anti-UCITA legislation, so it's a race throughout the country.

NewsForge: What's the EFF's stance/involvement on UCITA?

Robin Gross: EFF opposes UCITA because while it claims to merely apply traditional contract law in a digital environment, it *actually* dramatically expands
the copyright industry's ability to control how information can be used. In addition to being allowed to disclaim warranties and prevent the public from being able to criticize or reverse engineer works.

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