8 May 2000
Source: Frankfurt Garbus, Klein & Selz.
See related reply brief and declarations: http://cryptome.org/mpaa-v-2600-rb.htm
Declarations
Emmanuel Goldstein
Pamela Samuelson
Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582
Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN
UNITED STATES DISTRICT COURT |
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| UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, - against -
ERIC CORLEY a/k/a Defendants _______________________________________ |
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00 Civ. 0277 (LAK)
DECLARATION OF EMMANUEL GOLDSTEIN IN OPPOSITION TO PLAINTIFFS' MOTION TO MODIFY THE PRELIMINARY INJUNCTION AND IN SUPPORT OF DEFENDANTS' CROSS-MOTION TO VACATE THE PRELIMINARY INJUNCTION |
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I, EMMANUEL GOLDSTEIN, declare under penalty of perjury that the foregoing is true and correct:
1. I have been a journalist for approximately 23 years, beginning in high school with two separate newspapers, continuing through college (State University of New York at Stony Brook, where I received a Bachelor of Arts in English) with the Statesman and Stony Brook Press and as a broadcast journalist on WUSB 90.1 FM. Since 1984, I have been the Publisher and Editor of 2600: The Hacker Quarterly and currently also host the weekly radio program "Off the Hook" on WBAI 99.5 FM in New York City.
2. I served as music director for WUSB from 1980-1981 and program director from 1981-1982.
3. In 1984, through WUSB, I organized a convention of alternative presidential candidates in Stony Brook, New York and invited all of the 209 listed candidates for president to speak. More than two dozen accepted my invitation and spoke, and the convention received worldwide attention. The following year I wrote a radio play entitled "Shadow Over Long Island" which dealt with the threat of a nuclear power plant in the area and the effects of an accident. This also received quite a bit of attention.
4. 2600 is a quarterly journal which currently has approximately 4000 subscribers and another 60,000 newsstand readers. Our readers range from teenagers to college professors, corporate executives, universities, and intelligence agencies. Through this magazine, I try to create a forum to foster discussion and education about the workings, and failings, of our modern technical era. This includes such issues as security weaknesses, bad system design, privacy invasion, and corporate abuse of power. Examples of the magazine are attached hereto as Exhibit A.
5. While 2600 was fairly small in the early years, it has grown along with the public's fascination for all things computer related. It has been quoted and featured numerous times in such publications as The Wall Street Journal, The New York Times, and Newsweek, as well as on all of the major broadcast and cable networks. Some of the quotes are: "2600, a quarterly magazine named after the frequency of a dial tone that is the bible of hackerdom" (New York Times, June 14, 1998); "2600 Magazine, considered the hacker's bible" (USA Today, September 14, 1995); "a well-respected online hacker magazine" (The Washington Post, February 18, 2000). Representational clippings are attached hereto as Exhibit B.
6. It is important to understand that the terms "hacker" and "hacking" as used by and about 2600 are not pejorative, but refer to the original sense of the term "hacker" as a person experienced or expert with computers and Internet navigation who is imbued with a spirit of imagination, innovation and exploration. In the traditional sense of the word, for example, "hackers" include professional security experts used by major corporations and governments to test the security of systems.
7. I've also worked on WBAI radio in New York as both a reporter and radio producer since 1988.
8. WBAI has a worldwide reputation as a station where reporters thoroughly research stories and where commercial influence is nonexistent. My program "Off The Hook" examines issues of technology and freedom in depth once a week, and features an opportunity for listeners to call in to share their perspectives, comments and questions on the air.
9. I've participated in numerous panel discussions on computer and Internet-related issues through such organizations as Computers, Freedom, and Privacy, and Open Source Solutions. I have also appeared as an expert guest on issues such as freedom of speech on the computer era on numerous talk shows, including "The Charlie Rose Show," "Nightline," "60 Minutes," "Good Morning America," NPR's "All Things Considered" and "World News Now." I've given lectures at universities such as New York University, Seton Hall, the State University of New York at Old Westbury, and the State University of New York at Stony Brook. I've also testified in front of the Subcommittee on Telecommunications and Finance of the Committee on Energy and Commerce of the House of Representatives on issues of security and computers. A copy of my testimony is attached hereto as Exhibit C.
10. I organized two computer conferences in New York (1994 and 1997) sponsored by 2600 entitled Hackers On Planet Earth (HOPE) and Beyond HOPE, each of which drew more than 2,000 attendees from around the world. We have also organized and sponsored a third conference entitled H2K (HOPE 2000) on July 14-16 in New York, attendance at which is expected to exceed 4,000. Speakers at these conferences included such respected and established experts like Robert Steele, Bruce Schneier, and Brock Meeks in the world of technology, encryption, detective work, broadcasting, and privacy.
11. I've also written freelance pieces on a variety of matters for magazines and newspapers here and abroad, including for Newsday, The New York Times, and assorted Japanese, Dutch, and German publications.
12. Since 1998, I've been involved in producing and directing a documentary about the world of computer hackers and the case of Kevin Mitnick, who was imprisoned for five years and was recently released. I'm hoping to finish production of this project by summer and the movie is expected to be premiered at the H2K conference.
13. While I don't practice or condone breaking into computer systems, experience has shown us that such acts are an inevitable product of curiosity combined with new technology. Through the magazine and the radio program, I try to instill a sense of responsibility in those who may consider doing such things, so that they carefully think about their actions and don't cause any damage. I also try to instill a sense of reality into the mainstream so that the actions of such people are judged in a more even-handed way and so that people aren't sent to prison for relatively minor offenses.
14. I've never had occasion to use the DeCSS program myself -- I don't even have a DVD player. However, when it was posted to the Internet, I recognized the importance of such a program to a variety of disciplines, including reverse engineering an open-source DVD player, cryptography, and in aid of legal consumer fair use. I was quick to show support for its existence and to condemn the attempts at forcibly quashing such knowledge.
15. We have developed the Internet and the World Wide Web as powerful international technologies by sharing resources and pooling our knowledge to develop better capabilities. This is not served by controlling its use to the point of absurdity where people cannot play DVDs they have purchased unless they use selected players. Very few in a free-thinking society support such efforts to control technology since it goes against the customs we are used to. It's tantamount to not being allowed to read a book unless you have not only bought the book but have paid a fee for the right to read it as well as not being allowed to read the book at all in a manner not approved by the publisher or in a foreign country.
16. I have never sold a pirated copy of a DVD. I would not do it. I don't know anyone who would use DeCSS to do this. For one thing, it's a very inept way of copying a DVD. For another, DVDs have been copyable since their first release, and cheap pirated DVDs made by large-scale professional pirates operating overseas have been available for almost as long as DVDs have been in shops. What DeCSS is good for is to permit someone to view a DVD on their own computer or to watch a DVD that was bought in another country. All DVDs currently sold, including old films, have region codes which prevent them from being played on DVD players purchased in a different region. DeCSS is totally noncommercial and I know of nobody who has used this program for any financial gain, nor have I ever heard of such a case. I had occasion to ask one of the lawyers, Mark Traphagen, who helped write the Digital Millenium Copyright Act if he had ever heard of any such case and he had not. He was on a panel at Linux World in New York in January 2000. Thousands of people attended this conference and this was a pretty popular topic - everyone agreed that this was not a commercial application and that it was not developed for the purposes of fraud in any way.
17. There is, however, a great research value to the existence and distribution of DeCSS. The knowledge gained from this program will allow future programmers to develop better DVD players with more features and a wider audience, and in particular, to enable them to fast-forward through commercials or to the part of the movie they want to see, and to play DVDs from all over the world. It will also help plaintiffs improve their security. This is something we have taken for granted in other technologies, such as CDs and VCRs. Had they been crippled with such access controls, these technologies might never have developed to their full potential.
18. A legally purchased DVD can easily be played on a machine running Microsoft software or on a Macintosh computer. It is currently very difficult to play a DVD on a Linux machine since there is no "approved" player for Linux. Even if this changes and an approved Linux player equipped with proprietary CSS comes into existence, the same problem will continue to exist for other open-source operating systems and for Linux users who will decline to buy a closed-source application. In fact, this kind of thing will actively discourage new operating systems from being developed since they won't have the same capabilities as existing ones.
19. It is important to note that this entire issue is NOT about copying but rather about access. I believe it is entirely legal to use a DVD one has bought in a computer that one has bought. I oppose illegal copying but that has got nothing to do with DeCSS.
20. Our web site is www.2600.com and has existed since 1995. The 2600.com web site receives up to 50,000 unique visits per day (a unique visit is one that comes from a unique person - if the same person visits the site twice, that is only counted once). In 1999, 2600.comexperienced more than 3,000,000 unique visits; this figure is anticipated to increase to more than 5,000,000 for the year 2000. What we do is try to supplement the magazine's content with updated information that our readers would be interested in. This web site is an on-line supplement to the content published in the print magazine, with an emphasis on current news. It does not exist, as said in the injunction, to distribute illegal code. If we were interested in doing this, we could easily do a more efficient job and a less public one. The MPAA has already admitted that they cannot possibly shut down all of the mirror sites. By targeting our site, they illustrate the futility of their effort and show that this is largely a symbolic battle for them.
21. The sites containing DeCSS mirrors to which we currently link are very diverse in nature. Some of the sites have simply put the files up as a form of protest. Others explain exactly why they are doing this as a social commentary. Some are juvenile in nature, using a tone that we would not employ ourselves. Still others are operated by professionals who go into great detail as to what the programs do and how they are used. In addition, there are many mainstream media sites, such as The New York Times, San Jose Mercury News, CNN, Wired, and ZDNet, who have currently or in the past put up links that go directly to a list of mirror sites. While we try to keep 2600.com list up to date, not all the web sites on it actually mirror DeCSS. Finally, it is a trivial matter to simply enter "DeCSS" into any search engine and instantly receive a similar list of sites with the DeCSS program. A list of all websites on the 2600.com mirror list is attached hereto as Exhibit D. A sampling of some of these mirrored websites is attached hereto as Exhibit E.
22. There has been one very alarming consequence of the 2600 mirror list. I have been informed that the MPAA -- the trade organization of which the plaintiffs are members and which is the voice of the movie industry -- has been sending cease and desist letters to some or all of the websites on our mirror list. The letters, some of which are attached hereto as Exhibit F, are misleading and intimidating, since they suggest that the recipient "may" be subject to an injunction even though Plaintiffs know very well that the recipient is not. They are also sent to operators whose website no longer or never posted DeCSS, but was placed on the mirror list either by accident or because we were misled.
23. We became involved in this matter simply by showing support to the original developers of the DeCSS program who were being pressured to take it off the net back in November. As is the case today, there were many other mirror sites. We did not seek out publicity in this case; we merely added our site to the list of others showing support. By naming us in the injunction, the MPAA propelled us into the position we're in today. Had they picked others to do this to, we have no doubt they would be fighting the same battle in court with somebody else instead of us.
Dated: May ___, 2000
Setauket, New York
____________________________
Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582
Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN
UNITED STATES DISTRICT COURT |
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| UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, - against -
ERIC CORLEY a/k/a Defendants _______________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
00 Civ. 0277 (LAK)
DECLARATION OF PAMELA SAMUELSON IN OPPOSITION TO PLAINTIFFS’ MOTION TO MODIFY THE PRELIMINARY INJUNCTION AND IN SUPPORT OF DEFENDANT’S CROSS-MOTION TO VACATE THE PRELIMINARY INJUNCTION |
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I, PAMELA SAMUELSON, under penalty of perjury, declare that the forgoing is true and correct:
1. I am a Professor of Law at Boalt Hall School of Law at the University of California at Berkeley. I have been a law professor since 1981. Prior to my tenured appointment at Berkeley, I was a Professor of Law at the University of Pittsburgh School of Law. Between 1977 and 1981, I practiced law as a litigation associate with the New York firm of Willkie Farr & Gallagher. I also served as the principal investigator for the Software Licensing Project at Carnegie Mellon University funded by a grant from the U.S. Department of Defense.
2. I am a graduate of Yale Law School.
3. In 1997, I was named a Fellow of the John D. & Catherine T. MacArthur Foundation. In 1998, I was recognized by the National Law Journal as being among the 50 most influential female lawyers in the country and among the eight most influential in Northern California. I was recently elected to membership in the American Law Institute and named a Fellow of the Association of Computing Machinery.
4. As a law professor, I have undertaken extensive analyses of the impact of digital media on traditional concepts of copyright law. I have published more than thirty law review articles on this and related subjects, including publications in the California Law Review, Columbia Law Review, Michigan Law Review, and Stanford Law Review, as well as being co-author of a recently published book on "Software and Internet Law" (Aspen Publishing 2000). In addition, I have published approximately sixty other articles on digital intellectual property issues in a range of other publications, including the Washington Post and two computing professional journals, Communications of the ACM and IEEE Software. Among my recent publications in this area is a detailed analysis of the Digital Millennium Copyright Act’s anti-circumvention
provisions: "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised" in the Berkeley Technology Law Journal (1999). A copy of that article is annexed hereto.
5. My analysis of the Digital Millennium Copyright Act (DMCA) reveals that the plaintiffs’ and this Court’s previous view of the DMCA is incorrect. I will draw upon established principles of copyright law as well as the legislative history of the DMCA to show why this is so.
6. The DMCA was enacted by Congress to implement the World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty) signed in Geneva by the administration in December of 1996. In particular, the DMCA implemented a provision of the WIPO Copyright Treaty that called for the adoption of "adequate protection" and "effective remedies" against circumvention of technical protection measures used to protect copyrighted works in digital form against piracy.
7. Although both the WIPO Copyright Treaty and the DMCA seek to regulate the circumvention of technical protection measures per se, they do so only as an adjunct means of regulating copyright infringement, which is made easier by digitization of copyrighted works. The DMCA should, therefore, be understood as a copyright infringement statute, which has some special features that respond to the challenges of digital works. Its provisions must therefore be interpreted in harmony with the other provisions of the Copyright Act of which it is an integral part. The integral nature of the anti-circumvention regulations with copyright is also apparent from the name of the statute ("Digital Millennium Copyright Act") and from the treaty it implements (the "WIPO Copyright Treaty")
8. The complex dynamics of the DMCA drafting process produced anti-circumvention provisions that have been recognized by many commentators as ambiguous, contradictory, needlessly complex, and/or incomplete in significant respects. The National Academy of Sciences, for example, recently published a report entitled "The Digital Dilemma: Intellectual Property in the Information Age" which offers a number of criticisms of the DMCA’s anti-circumvention regulations. Excerpts of that report are annexed hereto.
The central reason for the complexity of the DMCA’s anti-circumvention regulations is that the Clinton Administration initially proposed legislation that contained sweeping prohibitions against circumvention and circumvention tool-making activities. The Senate Judiciary Committee, the House Commerce Committee, representatives of library and educational institutions, Silicon Valley businesses, and other stakeholders in the digital economy, as well as various public interest groups and copyright scholars recognized that the proposed prohibitions were too broad, would upset established copyright principles, and would adversely impact the interests of both the high-technology sector and the public. The input of these groups resulted in the introduction of several specific exemptions and other qualifications to this otherwise overbroad law. Unfortunately, this patch-making process did not allow for a comprehensive or elegant articulation of the interplay between the anti-circumvention regulations and the copyright infringement laws that they were designed to support. The court is directed in this regard to both the legislative history of the DMCA and my BTLJ article annexed hereto.
9. Given this background, it is not surprising that this court was confused about the proper interpretation of the interplay between the anti-device provisions in section 1201(a)(2) and various exceptions and limitations in the DMCA.
10. For instance, this court has interpreted the interoperability exception of the DMCA, section 1201(f), as though the DMCA only allows achieving interoperability of computer programs with other programs. With all due respect, this provision should not be read so narrowly. Computer scientists know that the distinction between programs and data is highly artificial. Moreover, the interoperability of computer programs with various types of data is equally critical to the development of new technologies and the lawful use and enjoyment of copyrighted works - issues at which the provision is aimed. Consider, for example, that Microsoft Word includes a file format conversion program enabling its users to read documents sent to them in Word Perfect format; this program must interoperate with data to achieve this function. Consider also that Microsoft recently had a dispute with AOL about its desire to achieve interoperability with AOL instant messaging data, and when AOL tried to technically protect its instant messaging service, Microsoft cited the need to achieve interoperability as a reason for bypassing this protection. The issue of platform conversion (interoperability of programs with data) presented in this case is directly within the spirit and purpose of the interoperability exception. With due respect, the court’s uncritical reliance on the narrow confines of the provision is misplaced. The peculiarities of the drafting process, and the difficulty of predicting technological developments within the confines of Congress, resulted in inadequate consideration of the full range of reverse engineering activities that might take place. Unlike Congress, the courts have both the insights provided by subsequent technological developments and the leisure to take a holistic view of how the DMCA fits into the Copyright Act. They are thus competent to undertake a purpose-oriented rather than an overly technical interpretation of the DMCA.
11. Although the anti-device provisions in 1201(a)(2) are new to the courts, attempts by copyright owners to control infringement-enabling technologies are not. The U.S. Supreme Court in Sony Corp. of America, Inc. v. Universal City Studios, Inc., 464 U.S. 417 (1984) established the rule that copyright owners only have the right to control infringement-enabling technologies if they lack "substantial non-infringing uses." During the legislative struggle over the anti-circumvention provisions, Congress added a provision to the DMCA intended to preserve this standard by including section 1201(c)(2) in this law. Insofar as DeCSS has a substantial noninfringing use, such as the enablement of platform conversion, it should be permissible under both Sony and the DMCA.
12. In addition, the court’s earlier interpretation of the application of the fair use provision (section 107) of the Copyright Act to section 1201 needs to be rethought. Consider this example. Suppose that a U.S. citizen goes to France and buys a DVD movie in France, takes it home to New York City, and tries to play it in his DVD player. Upon discovering that it doesn’t work because of a country-based coding system in the disk, our New Yorker has only two choices: either to throw away the DVD for which he paid good money or write or use a DeCSS program to enable him to play the DVD movie he purchased in France in the privacy of his own home. Under the court’s previous interpretation of the DMCA, this would violate 1201(a)(2). This is not a plausible interpretation of the statute. This kind of private use activity does no harm to the copyright owner of the DVD and is not the type of piracy-enabling activity that the DMCA anti-circumvention provisions were intended to reach. Or consider the plight of a copyright owner who suspects that an infringing copy of her work is contained inside a cryptographic envelope. There is no exception in the DMCA explicitly allowing the circumvention of an access control, or making a tool to circumvent access controls, in order to determine if an infringing copy of a protected work is contained therein. Under the court’s prior interpretation of section 1201, this copyright owner would violate the DMCA. However, reading whole of section 1201, it becomes apparent that courts can invoke sections 107 and 1201(c)(1) to permit such fair use circumventions.
13. To read the DMCA in the manner proposed by the court would render section 107 and most of the privileges of section 1201 virtually meaningless. If owners of copies of copyrighted works do not have the ability to circumvent technical protection measures in order to make fair uses of protected material, fair use itself would cease to exist simply by virtue of the existence of technical protection measures. Similarly, if individuals do not have the ability to make circumvention tools to enable permissible acts of circumvention, they will, as a practical matter, be unable to engage in even explicitly permissible acts of circumvention under section 1201(c)-(j), let alone in fair use. Congress should not be understood to have created meaningless exceptions and limitations on the rights of copyright owners to use technical protection systems. Section 1201(c)(1) was included in the DMCA to enable courts to craft appropriate rules about fair use circumventions and tool-making. Although a technical, overly narrow reading of the provision could lead to a conclusion that section 1201(c)(1) merely states that the presence of a technical protection measure does not itself obviate fair use, such an interpretation is misguided, for the same reasons that a narrow interpretation of the interaction between section 107 and the DMCA provisions is misguided.
14. Another example will serve to illustrate the practical absurdity of an overbroad interpretation of section 1201 as regards free speech and free press issues. Suppose a journalist, in seeking to expose the hazardous practices of a nuclear power facility, received an encrypted diskette containing details of inadequate company safety procedures. In order to access the material on the diskette and to include fair use excerpts of the information in her story, the journalist may need to ask a computer programmer to write a program to decrypt the diskette. Under the court’s interpretation of the DMCA, both the journalist and the programmer would have violated section 1201.
15. An overly strict, technical reading of the DMCA would seriously threaten freedom of speech. It does so not only by ignoring the communicative aspects of writing and sharing computer code per se, but also by restricting activities which, like in the example above, involve traditional forms of expressive activity. Indeed, the provisions of the DMCA itself counsel against any interpretation that would adversely affect free speech. Section 1201(c)(4) specifically states that nothing in section 1201 shall diminish the rights of free speech or the press. During the legislative struggle over the DMCA, Congress added this section to the anti-circumvention regulations because it recognized the potential for the anti-circumvention regulations to interfere with free speech rights. It gave courts the tools with which to protect free speech interests in an appropriate case.
16. Additional real-world examples will more adequately highlight the conflict between the court’s interpretation of the DMCA and speech activities. Under the terms of the court’s injunction, writing and posting on the Internet an article that explained how to circumvent the CSS system would be illegal. Linking to such an article would also be illegal. The DMCA was never intended to prohibit these kinds of activities, and to do so would undermine established principles of copyright law as well as threaten speech, learning and technological progress.
Executed on May 03, 2000
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Pamela Samuelson