September 15, 2000

EFF takes its DVD case to Linux users, looking to raise funds

Author: JT Smith

By Nathan L. Walls
Special to NewsForge

After spending more in 2000 on litigation than its entire 1999
operating
budget, the Electronic Frontier Foundation says it needs more funds to
keep the DeCSS fight going.

After defending two cases, Universal City Studies vs. Shawn C.
Reimerdes
[commonly known as the Motion Picture Association of America vs.
2600.com] and DVD Copy Control Association vs. Andrew Bunner, EFF staff
are visiting the Open Source community to raise awareness and funds.
This
week, staff attorney Robin Gross presented EFF's case to approximately
25 attendees of the Sacramento Linux Users Group meeting.

"This battle is the greatest we've been against in 10 years," Gross
told the group.

Gross outlined the status of both cases to the group, answering
several questions,
including why she felt federal judge Lewis A. Kaplan did not recuse
himself from the trial widely known for banning 2600 from linking the
DeCSS source code, which allows users to copy DVDs to play on Linux
machines.

She said EFF's defense was based on the federal Ninth Circuit Court of
Appeals precedent that computer code is speech worthy of First Amendment
protection. In 2600's case, she said the EFF is trying to protect
rights
that people have always enjoyed, but may have been made illegal by the
Digital Millennium Copyright Act passed by the U.S. Congress. Kaplan held that DeCSS was a
violation
of DMCA and as governed by a program's "peculiar characteristics" for
circumventing encryption and access control measures, was not protected
by the First Amendment. Gross said such a ruling was wide reaching.

"It may be illegal to fast forward through commercials [on a DVD]," she
said, depending on the ruling's interpretation.

Gross said a lot of what the EFF is arguing for is "fair use,"
which she explained as, "the breathing room on copyright so it doesn't
conflict with the First Amendment."

She charged the movie industry with trying to assert ownership past the
time of sale, saying the MPAA considers movies to be licensed to home
viewers. But, in order the license to be valid, someone has to agree to
the terms of the license.

"Barring that, it's a straight sale with all the rights of ownership and
viewership," she said.

Postings on the MPAA's Web site say the MPAA is concerned with
protecting copyright and preventing piracy. Fighting DeCSS, the site
says, is simply protecting artists and the motion picture industry as a
whole, from the companies themselves to actors and crew. Secondly, DeCSS
is not protected by the First Amendment since it, "is not intended to
convey opinions. While it uses computer code, its sole function is to
circumvent copyright protection," notes an MPAA faq in the
organization's DVD-DeCSS press room (http://www.mpaa.org/Press/).

The faq says while there may not be any current DeCSS-based
piracy -- a fact Gross says the MPAA was forced to admit in the2600
case
-- the MPAA worries about the future.

"The development and distribution of DeCSS may lead to widespread
digital video piracy. Currently, the impact of hacks such as DeCSS is
limited by the amount of time needed to download a full-length motion
picture over the Internet." Such limitations will change rapidly, the
faq says.

Gross says the 2600 case was a legitimate Linux-based reverse
engineering effort, precisely what the MPAA is trying to
prevent to preserve the movie industry monopoly.

The MPAA argues that while the DMCA does allow for reverse engineering,
DeCSS doesn't not fall under the allowable terms, because there are
several DVD players already on the market. The faq mentions that
commercial Linux-based DVD players are in development from Sigma
Designs and InterVideo Inc. InterVideo's site
(http://www.intervideo.com/jsp/LinDVD.jsp) says the company
demonstrated
a fully functional version of its LinDVD player at Linux World in Taipei
Sept. 7 to 9.

Some members of the audience asked Gross about material that has
appeared in legal briefings related to the two cases and widely
reported as equating the Open Source movement with piracy. Gross
replied
there wasn't much the EFF or the Open Source community could do in
court, except present their own case.

"We could spend all of our time fighting misinformation," she said.
"[But] we have our own agenda we want to present to the court."

Gross charged the group with a higher responsibility than the average
citizen to help EFF's cause, largely because the Linux community
understands the technical arguments being made by the defendants.

"You guys get this stuff," she said.

Gross, in addition to being at a local users group meeting, was also at
August's Linux World Expo. The EFF is bringing on a development
director
who will be fund-raising full-time in two weeks, Gross said. Without
additional funds to pay its own expenses and for outside counsel in the
two cases, the EFF will not be able to afford to take the cases through
the appeals process, she said.

"We've been incredibly lucky with the outgrowth of support we've
received," said Gross.

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