Bunner DVD case goes to the Supreme Court

EFFector        Vol. 16, No. 14        May 21, 2003        ren@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424
In the 253rd Issue of EFFector:

    * Supreme Court to Hear California DVD Case
    * TIA Report Shines No New Light
    * EFF Accepting Used Car Donations
    * Deep Links (6): Oops! We Engineered Your Rights Away
    * Staff Calendar
    * Administrivia

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

To join EFF or make an additional donation:
  http://www.eff.org/support/

EFF is a member-supported nonprofit. Please sign up as a member today!

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* Supreme Court to Hear California DVD Case

The California Supreme Court has scheduled a hearing May 29, 2003, on
a key legal challenge to the publication of DeCSS, the software that
decrypts DVDs.  In this case, called DVD-CCA v. Bunner, California
resident Andrew Bunner was one of thousands of republishers of DeCSS
throughout the U.S. and the world.  The Court will review an appellate
court decision that held that a preliminary lower court order
preventing Bunner from publishing the software violated his First
Amendment rights.

DVD-CCA, the organization that licenses DVD technology for Hollywood
movie studios, originally filed the lawsuit in December 1999 and
obtained the preliminary anti-publication order shortly thereafter.
DVD-CCA named hundreds of people in the lawsuit, including those who
printed DeCSS on T-shirts.  DVD-CCA contends that republication of
DeCSS improperly discloses its trade secrets despite the fact that the
program was widely available. It is uncommon for trade secret owners
to attempt to restrict publication by members of the public with whom
they share no contractual relationship or who had no involvement in
the initial disclosure of a trade secret. Bunner had republished DeCSS
on his website after reading about it on Slashdot and deciding it was
newsworthy.

"Trade secret protection stops once information is no longer a
secret," said EFF Legal Director Cindy Cohn. "DeCSS is obviously not a
secret -- it's available on thousands of websites worldwide. Even if
some of the information in DeCSS was once a secret, and even that is
not clear, DeCSS is now publicly available.  If DVD-CCA had wanted
additional protections, it should have used other legal techniques
such as patent or copyright rather than trade secret law."

"We're confident the Supreme Court will recognize, as the Court of
Appeal did, that this is a classic First Amendment case. The trial
court's order was a prior restraint on Mr. Bunner's speech.  The
constitutional test for restrictions on the publication of
'confidential' information that apply in numerous other contexts must
also apply here," said David Greene, Executive Director for the First
Amendment Project and main author of the groups' legal brief.

Another branch of the case, DVD-CCA v. Pavlovich, ended this spring
when DVD-CCA decided not to appeal a California Supreme Court decision
that it was improper to force Matthew Pavlovich, another alleged
republisher of DeCSS, to come to California to defend the trade secret
claim.

In other DeCSS-related litigation, the original publisher of the
program, Norwegian teenager Jon Johansen, was acquitted of all
criminal charges.  The Norwegian government has appealed that decision
and the case is currently scheduled for re-trial in December, 2003.

Links:
EFF' s DVD-CCA v. Bunner case archive:
http://www.eff.org/IP/Video/DVDCCA_case/

The 6th Appellate Court's decision overturning the injunction:
http://www.eff.org/sc/20011101_bunner_appellate_decision.html

Pavlovich case archive:
http://www.eff.org/IP/Video/DVDCCA_case/#pavlovich

Jon Johansen case materials:
http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/

EFF Board member and Boalt Hall School of Law Professor Pam
Samuelson's brand new paper on trade secrets and the First Amendment:
http://www.sims.berkeley.edu/~pam/papers/TS%201st%20A%203d%20dr.pdf

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* TIA Report Shines No New Light

The Bush Administration released its long-awaited report to Congress
on the "Total Information Awareness" program (now renamed "Terrorism
Information Awareness") on May 20, 2003.

"The report is disappointing -- after more than a hundred pages, you
don't know anything more about whether TIA will work or whether your
civil liberties will be safe against it," said EFF Senior Staff
Attorney Lee Tien.  "It's also disingenuous for a report about new
technologies for monitoring people to keep saying, 'don't worry, we'll
follow existing privacy law.' Privacy law is already behind the
technology curve, and the Bush Administration fully understands that
TIA will only make the problem worse."

This advisory:
http://www.eff.org/Privacy/TIA/20030520_pr.php

TIA report available at:
http://www.eff.org/Privacy/TIA/20030520_tia_report.php

EFF TIA archive:
http://www.eff.org/Privacy/TIA/

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* EFF Accepting Used Car Donations

Donating a vehicle to charity can earn you a healthy itemized tax
deduction. Now EFF is able to accept used car donations all around the
country!

EFF has partnered with Vehicle Donation to Any Charity, which gives us
the ability to process vehicle donations with minimal expense to us
and very little hassle for the donor.

If you want to get rid of an old vehicle and help EFF, just visit
https://secure.eff.org, follow the appropriate link, and walk through
the donation process.  Thanks for your support!

Links:
Donate to EFF:
https://secure.eff.org

Vehicle Donation to Any Charity:
http://www.v-dac.com

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* Deep Links
Deep Links features noteworthy news items, victories, and threats from
around the Internet.

~ Oops! We Engineered Your Rights Away
The lessons of Intuit and digital rights management:
http://www.business2.com/articles/web/0,,49577,00.html

~ Chinese Website Operator Jailed
Huang Qi has been sentenced to five years in prison for allowing
articles on the 1989 Tiananmen Square killings to be posted on his site:
http://news.bbc.co.uk/1/hi/world/asia-pacific/3039041.stm

~ Beep Beep: RIAA Radar
When used in conjunction with Amazon.com's detailed album view, this
bookmarklet can check if an album was produced by an RIAA member company:
http://www.magnetbox.com/riaa/

~ Puretunes is Spanish for P2P
A Spanish music downloading service claims to have a legal loophole
and is partnering with Grokster:
http://news.com.com/2100-1027-1007920.html

~ Three Congressmen Form "Anti-Piracy" Caucus
They're supporting stronger IP laws and, if their histories tell us
anything, hacking the computers of P2P users:
http://news.com.com/2100-1028_3-1007908.html

~ Tennessee Digital Freedom Fights the S-DMCA
TNDF is a model resource for state activism on the S-DMCA:
http://www.tndf.net/

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* Staff Calendar
For a complete listing of EFF speaking engagements (with locations and
times), please visit:
http://www.eff.org/calendar/

~ Saturday, May 24: Assorted EFF staff at the "Be Here Now
Fundraiser," an event that benefits EFF and others:
http://www.beherenowsf.org/

~ Sunday, May 25: Cory Doctorow on "The Computer Report" radio show. 
WOTW 900 AM, Greater Nashua, NH.

~ Tuesday, May 27: Wendy Seltzer will be at U.C. Irvine for a
roundtable discussion on the DMCA.

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* Administrivia

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Editor:
Ren Bucholz, Activist
  ren@eff.org

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