In the last few days (as we go to press in mid-December), the cause of free speech, which has been dear to the heart of the Linux community -- and without which we might not have either Linux or the Internet -- has taken a couple of heavy hits in the courts. The only ray of hope comes from the FTC.
In both court cases the DMCA -- the Digital Millennium Copyright Act -- prevailed. The DMCA, which was signed into law in October 1998, expands the scope of copyright to criminalize circumvention of copyright schemes, among other things.
In Felten vs. RIAA, Professor Edward Felten (currently on leave from Stanford) and others sued the Recording Industry of America, claiming that the RIAA used threats of lawsuits to prevent him from presenting his work at an academic conference. Felten had planned to show how he and his researchers had disabled digital watermarks, but backed down after a threatening letter from an RIAA lawyer. RIAA officials later said they had not intended to sue. The case was dismissed by U.S. District Court Judge Garrett E. Brown, who found that Felten had no legal complaint.
Context: Dmitry Sklyarov, a Russian academic was imprisoned and is still awaiting trial for DMCA violations he allegedly committed when he gave a presentation at a conference where he detailed weaknesses in Adobe's eBook technology software. At the behest of Adobe, Sklyarov was arrested in his hotel in Las Vegas on July 16 while preparing to return to Russia. He spent three weeks in jail and still awaits trial, even though Adobe has withdrawn its support for the case.
In a statement, Cary Sherman, senior executive vice president with the RIAA, said, "We are happy that the court recognized what we have been saying all along: there is no dispute here. As we have said time and again, Professor Felten is free to publish his findings".
In a press release following the dismissal, Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn said, "Since the government and industry cannot agree on what the DMCA means, it is not surprising that scientists and researchers are confused and decide not to publish research for fear of prosecution under the DMCA... Regardless of specific government or industry threats in the past, scientists should not have to experience the ongoing chilling effects of this vague digital copyright law."
In Universal vs. Reimerdes, the 2nd U.S. Court of Appeals affirmed a district court ruling against the defendants. The plaintiffs included Universal Studios, plus Tri-Star, Disney, 20th Century Fox, Paramount, Columbia Pictures and MGM. The defendants were the Eric Corley and 2600 Magazine, which had published DeCSS, a DVD decrpytion program that has circulated widely on the Net (2600 provided a download), and allows users of Linux computers to watch DVDs. Corley's attorneys argued that DeCSS was protected as free speech. The studios argued that harm to their industry outweighed free speech protections. The court agreed with the plaintiffs. The EFF's Cindy Cohn, who helped represent Corley in the case, said "I think it's a setback for free speech. It appears that the court is upholding censorship of the magazine online."
It is also significant that the DMCA, in the words of Eric S. Raymond of the Open Source Initiative, serves to "protect the cartelization" of playback devices. Jon Johansen and MoRE (Masters of Reverse Engineering) in Norway developed DeCSS basically so DVDs could be played back on Linux devices -- something the movie studios and its partners in the consumer electronics business hadn't bothered to deliver.
On one positive note, the U.S. Federal Trade Commission announced hearings on "Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy." Public hearings will be held on the subject, starting in January (when this issue of Linux Journal should be hitting the streets). You can learn more about it and submit written comments by following directions from the Federal Register at this URL: <http://www.ftc.gov/os/2001/11/ciphearingsfrn.htm>.
- Doc Searls