Responses to the MPAA letter to Cryptome

Updated 9 February 2000

8 February 2000

Responses to the MPAA letter to Cryptome. Contributions welcome.

Date: Mon, 07 Feb 2000 13:57:55 -0800
From: Anonymous Attorney
To: jya@pipeline.com
Subject: MPAA Anti-Piracy Notice

John:

Since you aren't one of the Defendants in the NY case, I don't see how it could even be considered to apply to you. Nor are you one of the named Defendants in the California suit, so I don't think you are bound by an injunction. This is their standard harassment strategy at work.

Date: Mon, 07 Feb 2000 17:30:55 -0500
To: John Young <jya@pipeline.com>
From: Ed Stone <estone@synernet.com>
Subject: mpaa/decss

Will they try to make a "demonstation case" out of you?

Being in NY, given the ruling there in favor of the DVD Nazis, must expose you to greater risk, re decss.

I find it very disappointing to see how the government's and industry's acceptance of freedom of the press vanishes when the Internet essentially gives everyone a press.

Date: Mon, 07 Feb 2000
To: Ed Stone <estone@synernet.com>
From: John Young <jya@pipeline.com>
Subject: mpaa/decss

Ed,

Not sure what they will do, it was surprising Cryptome was not on the list of NY defendants for the federal suit. I suspect MPAA will eventually get around to anyone who annoys them. For now they seem to be looking for leverage in the press to save on legal costs. Maybe Cryptome got bumped up the list for doing them the favor of publicizing Hoy's bestseller.

We've been advised to ignore the letter as harassment until or unless something official gets heaved into our bunker -- neither court injunction applies to us, yet.

Date: Mon, 07 Feb 2000 18:52:56 -0800
From: David Koontz <koontz@pluris.com>
To: jya@pipeline.com, mpaa.23@gateway.net
Subject: Applicability of preliminary injunction to cryptome.org

Not being a lawyer and never having played one on TV, I can only parse the english of the preliminary injunction in New York:

> 2. Defendants Shawn C. Reimerdes, Eric Corley a/k/a "Emmanuel Goldstein"
>    and Roman Kazan, their officers, agents, servants, employees and
>    attorneys and all persons in active concert or participation with them
>    who receive actual notice of this order by personal service or
>    otherwise be and they hereby are enjoined and restrained, pending the
>    hearing and final determination of this action, from
>
>       (a) posting on any Internet web site, or in any other way
>       manufacturing, importing or offering to the public,
>       providing, or otherwise trafficking in DeCSS, and

...

It is unclear that it can be found that a party not directly named in the injunction can be found to be "in active concert or participation.." who does not not know one of the defendants, has not communicated with one of the defendants and is not a participant in the lawsuit can be found to be "in active participation with them". If this is not the case then a non-participant is not bound, i.e. not ejoined and restrained pending the hearing and final determination "of this action".

If one is not bound by an injunction, the notice received by John Young on February 4th might be perceived as a threat or act of intimidation, not withstanding notification under the Digital Millineum Copyright Act (which the notification is not apparently represented as).

One wonders if there can be any demonstrated loss or injury to a copyright holder by the availability of DeCSS. (If anyone is wondering I don't even own a PC).

From: Anonymous
To: <jya@pipeline.com>
Subject: MPAA Notice to Cryptome
Date: Mon, 7 Feb 2000 21:58:29 -0500

This is the css code in "speech" format. It won't compile, and it won't run, it could be argued that it's technically not "software", yet can easily be converted to C code.

regards,

[] decsspeech.zip

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From: "Spigarelli, Patti" <Patti.Spigarelli@warnerbros.com>
To: "'asako_fujii@sonyusa.com'" <asako_fujii@sonyusa.com>,
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 <yokouchi@krhm.jvc-victor.co.jp>
Subject: FW: CPTWG GENERAL SESSION NOTICE - 02/09/00
Date: Mon, 7 Feb 2000 19:01:13 -0800
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I am resending this Meeting Notice to additional members whose names have
just been added to the standing e:mail contact list.  Please pass it on to
anyone else I may have missed, as the meeting location has changed.

Thank you,

Patti Spigarelli

> -----Original Message-----
> From:	Spigarelli, Patti 
> Sent:	Friday, February 04, 2000 2:03 PM
> To:	103130.104@compuserve.com; 33523@skt.jvc-victor.co.jp;
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> jfleming@riaa.com; jgagnon@afma.com; jhamilton@ieee.org;
> jharleman@certicom.com; jhicks@bigscreen.mea.com; j-hirai@tv.sony.co.jp;
> jnicolas@solanatech.com; joblove@imageworks.com; jodyg@almaden.ibm.com;
> john.alsina@viacom.com; john.hoy@LMIcp.com; john.metzger@zenith.com;
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> jvancini@certicom.com; jwko@samsung.co.kr; kaizu@krhm.jvc-victor.co.jp;
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> KarlD@sea.samsung.com; kawada@adi.toshiba.co.jp;
> kawamae@msrd.hitachi.co.jp; kazu@pccrd.fc.nec.co.jp;
> kazuo1.nakajima@toshiba.co.jp; keegan@psn.com;
> keiichi_yamauchi@post.pioneer.co.jp; keith.thomas@emimusic.com;
> kelvin_klusendorf@sdesigns.com; kes@balhae.sec.samsung.co.kr; Kevin Gage;
> kjoseph@hns.com; kmiwa@jp.ibm.com; kohashi@wcs.sony.co.jp;
> koji.hase@toshiba.co.jp; koji.yura@toshiba.co.jp; kordian@macrovision.com;
> kosuke_ajima@post.pioneer.co.jp; laugher@swc.sec.samsung.co.kr;
> ldomshy@adt.aiwa.com; leakede@us.ibm.com; legolde@unistudios.com;
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> tcarroux@macrovision.com; tedabe@arl.drl.mei.co.jp; teichner@xsys.de;
> Terry.Arnold@merdan.com; terrykawa@aol.com;
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> tjmitty@invengen.com; tkubota@cm.kaden.hitachi.co.jp; tmaccall@usc.edu;
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> tomo@arch.sony.co.jp; tomoki@arl.drl.mei.co.jp;
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> tsuga@hdc.mei.co.jp; tsuruta@pccrd.fc.nec.co.jp; usuki@avrl.mei.co.jp;
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> vroos@digimarc.com; wade.hanniball@umusic.com; warner.w.johnston@abc.com;
> watari@rdpo.cl.nec.co.jp; wboyles@avsi.com; weber@intertrust.com;
> wehrenberg1@apple.com; Wendy Aylsworth; westerkamp@thmulti.com;
> wlou@bigscreen.mea.com; yamamotom@tmmjapan.tokyo.indy.tce.com;
> yamasaki@jvclab.com; yash.singh@st.com; yasuo.nishioka@toshiba.co.jp;
> yatsu@isl.rdc.toshiba.co.jp; yin.shih@quantum.com;
> yishibashi@pc.ome.toshiba.co.jp; yishida@img.kyo.melco.co.jp;
> ykwon@sisa.samsung.com; yoshiura@sdl.hitachi.co.jp; yostt@indy.tce.com;
> ysakaue@jp.ibm.com; ysawada@yamaha.com; yshoji@scl.telusa.com;
> ytanaka@jp.ibm.com; yuki@sonic.com; yukio.adachi@toshiba.co.jp;
> yuuzabu@caucus.yamaha.co.jp
> Cc:	Barr, Mary
> Subject:	CPTWG GENERAL SESSION NOTICE - 02/09/00
> 
> 
> Attention All:
> 
> The next Copy Protection Technical Working Group General Session Meeting
> will be held on Wednesday, February 9, 2000, as follows:
> 
> *** NEW MEETING LOCATION ***
> 
> LOS ANGELES AIRPORT WESTIN HOTEL
> 5400 West Century Boulevard
> Los Angeles, CA 90045 USA
> (Corner of Century & Concourse)
> 
> Tel:  (310) 216-5858
> Fax:  (310) 417-4545
> 
> Ask for the CPTWG RATE when making reservations:
> Singe Room:	$ 115.00 USD
> Double Room:	$ 125.00 USD
> Suite:		$ 199.00 USD
> 
> MEETING SCHEDULE
> (SPLIT BETWEEN LOBBY LEVEL & SECOND FLOOR THIS MONTH)
> 
> Time	Event	Meeting Room(s)
> 8:00 AM	Co-Chair Meeting	Kennedy
> [PRIVATE]	
> 	DVD Audio Meeting	LaGuardia
> [PRIVATE]	
> 	Continental Breakfast	Grand Ballroom B - Foyer	
> 9:00 AM	Registration	Grand Ballroom B - Foyer	
> 9:30 AM	General Session	Grand Ballroom B	
> 	Breakout 1	LaGuardia                Available 11AM - 12PM	
> 	Breakout 2	Kennedy                   Available 9:30AM - 12PM
> 
> 12:00 PM	Lunch	Trattoria	
> 	MPAA Meeting	LaGuardia                           [PRIVATE]	
> 1:00 PM	DVD CCA Advisory / DHSG	Grand Ballroom B	
> (or after lunch)	CSS Entity	Kennedy
> [PRIVATE]	
> 
> Meeting Room locator maps will be provided at the CPTWG Reception Desk.
> ATTENDANCE FEE COLLECTION AT REGISTRATION
> 
> Due to economic considerations regarding CPTWG General Session Meeting
> costs and payment scheduling, it has become necessary to implement an
> attendance fee of One Hundred US Dollars ($100.00 US) per attending member
> to cover meals, equipment and service.  This fee will be collected by the
> Westin Staff at the Registration table prior to the start of the General
> Session.
> 
> Registration Fees for CEA member participants and MPAA member participants
> are covered by dues paid to each respective organization.  However, they
> must still check in with the Westin Staff at the CPTWG Registration Desk
> in order to receive their exemption receipt and to be checked off the
> membership lists provided by CEA and the MPAA.  
> 
> (Failure to check in with Westin Staff will result in full Registration
> Fee charges being added to Guest Room bill and/or participant's Company
> being invoiced for this Fee.)
> 
> REGISTRATION FEE QUESTIONS
> 
> Questions regarding the implementation of this fee and/or MPAA membership
> should be directed to Christina Giroux in Fritz Attaway's office at the
> MPAA via e:mail at cgiroux@mpaa.org.
> 
> Questions regarding special fee collection considerations for CEA
> participants intending should be directed to Joe Peck via e:mail at
> jpeck@eia.org.
> 
> Questions regarding having this fee included as a line item on your Hotel
> room charges should be directed to Michael Williams at the Westin via
> e:mail at mwilliams@starlodge.com. 
> 
> COPYING PROCEDURES
> 
> Anyone requiring additional copies of documents / hand-outs / presentation
> packages, etc. discussed in the General Session or side meetings will need
> to fill out a Copy Request Form (blank forms will be available at the
> Reception Desk) indicating the Requestor's Name, Room # and/or Company
> Affiliation.  Copying costs will then be charged to the Requestor's Room,
> or will be billed back to the Requestor's Company.
> 
> ATTENDANCE REPORT
> 
> Attendance Report for the previous meeting will be posted to the CPTWG
> Website prior to the next General Session for member information.
> 
> TENTATIVE UPCOMING GENERAL SESSION DATES
> 
> Thursday, March 16, 2000
> Tuesday, April 18, 2000
> 
> Please forward this message on to any regular attendees who are not
> currently listed on this distribution list, or anyone whose e:mail has
> changed or needs to be corrected.  (The contact database update is in
> progress, but not quite finished yet.)
> 
> Thank you,
> 
> Patti Spigarelli
> 
> REMEMBER:  DO NOT GO TO THE BURBANK HILTON - WE WILL NOT BE THERE!!
>

JY private e-mail, 7 February 2000

A couple of weeks ago I signed up for the mailing list of an MPAA related organization, The Copy Protection Technical Working Group (CPTWG):

http://www.dvcc.com/cptwg

The first mailing arrived today. It outlines the agenda and accommodations for an all-day meeting on February 9 at the LA Airport Westin Hotel. The agenda includes an advisory from DVD CCA, open, and a session on CSS, private.

What was informative about the message was that its header included the email addresses of the list's subscribers, several dozens of them from the world's largest corporations and a few educational and non-profit organizations. Intriguing werethe cryptographers listed whose addresses I recognized, and to be sure, the attorneys and other faithful servants. Could one be a defendant? Probably. About half appear to be from outside the US.

None of this is confidential, however: the Web site of CPTWG provides lists of previous meeting attendees by name and affiliation, as well as a few reports and papers on copy protection intentions. Links go to other sites where more specific crypto and copy protection investigations and prospects are described.

The point of this message is to inquire if there might be someone who could be inspired to attend the LA meeting and give us a report. It appears to be open to the public. Here's the meeting outline: [See above]

Date: Tue, 08 Feb 2000 09:04:46 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Donald Ramsbottom <donald@ramsbottom.co.uk>
Subject: JY and DeCSS and MAP

I suppose that it was inevitable, MAP have now descended on John Young and the Cryptome site. Below is the address of the letter he received from MAP.

http://cryptome.org/dvd-mpaa-ccd.htm

Below are some extracts which show that MAP far from trying to extract themselves from the stupidity of what they have done already, seem to be intent on proceeding even further and digging themselves into an even deeper hole.

So let us see what they are demanding of John.

>The Superior Court of Santa Clara County, California also recently granted
> a Preliminary Injunction against the Internet posting of DeCSS.

Thankfully we have to be in their jurisdiction for this to apply.

>If you are bound by an injunction, maintaining the DeCSS utility on your
>system or network violates the above injunction[s] and risks court sanctions
>for contempt.

Usually fines but can be and/or imprisonment. Note this does not say publish a copy on the website, but mereley "maintain a copy on your system or network" This is not what the injunctions say.

>We hereby demand that you:

Don't you just love polite enquiry.

> 1. take appropriate steps to cause immediate removal of DeCSS from
> the above identified URL, along with such other actions as may be
> necessary or appropriate to suspend this illegal activity;

I am not sure what this means, the removal is clear enough, but such other actions etc, what are they and whose opinion are they necessary and appropriate? I suppose the obvious annswer and "the only way to be sure" is to shut down the site.

> 2. provide appropriate notice to the subscriber or account holder
> responsible for the >presence of DeCSS on your system or network,
> advising him/her of the contents of this notice and directing that
> person to contact the undersigned immediately at the e-mail
> address provided above;

This is fair enough, apart from the "directing" bit.

> 3. advise us of the name and physical address of the person operating
> this site; and

WHoah, there is nothing about this in the injunction, (which is to stop something happening by act/or ommission), allowing them to demand third party details. But as usual give them an inch and they will take a mile.

This could be YOU.

> 4. maintain, and take whatever steps are necessary to prevent the
> destruction of, all records, including electronic records, in your
> possession or control respecting this URL, account holder or
> subscriber.

Ah so they also want the names and addresses of the third party and you are not allowed to exercise your right to destroy this info.It is not their data, but they are trying make it so. Again I have seen the injunctions and this edict is not included in the same. For the avoidance of doubt the NY Injunction says:

"Defendants Shawn C. Reimerdes, Eric Corley a/k/a "Emmanuel Goldstein" and Roman Kazan, their officers, agents, servants, employees and attorneys and all persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise be and they hereby are enjoined and restrained, pending the hearing and final determination of this action from:
(a) posting on any Internet web site, or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in DeCSS, and
(b) posting on any Internet web site, or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof, that...."

Also note that you have to have actual notice by personal service for the injunction to apply.

>Thank you for your cooperation in this matter. Your immediate response is
>requested.

Nice and polite at the end.

What are MAP actually doing here, well they have an injunction against named persons in two states to prevent the dissemination of a bit of code known as DeCSS. As I understand it this code mereley allows DVDs to be played on a Linux based system and does not have all the attributes which have been assigned to it by MAP. As the arguements are technical and because the defendants do not have the resources of MAP, MAP have been able to hoodwink the Courts with scaremongering of piracy and billions of lost dollars. This is evidenced by Judge Kaplans "preliminary opinion" published 04.02.00 part of the conclusion of which states:

>There is little room for doubting that broad dissemination of DeCSS
>would seriously injure or destroy plaintiffs' ability to distribute their
>copyrighted products on DVDs and, for that matter, undermine their
>ability to sell their products to the "home video" market in other forms.
>The potential damages probably are incalculable, and these
>defendants surely would be in no position to compensate plaintiffs
>for them if plaintiffs were remitted only to post hoc damage suits.

As can be seen from this extract the court may have been mislead somewhat as to the nature of the code in question. If it were a windows based decoder they **may** have an arguement, but linux is only used by a very small percentage as the OS on PCs. In any event it also ignores the fact that the code has already been widely disseminated as JY has told us in a previous post, 70,000 downloads in a few days from one site out of 512 sites in a single state.

Why does all this matter to UKcrypto, because you can bet we (in UK) will be the first place outside US (other than Norway) where MAP tries to impose its will on the net and our Laws on the subject will probably allow for search and seizure of equipment and data. I would have thought the dissemination to date would allow a public domain defence, but you never know.

Enough rambling, we all ought to give John and others such support as we are able. If that means technical help then post it up I am sure it will get through to the right parties in the end. Rant over.

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists

From: Alan Ramsbottom <ACR@als.co.uk>
To: "'ukcrypto@maillist.ox.ac.uk'" <ukcrypto@maillist.ox.ac.uk>
Subject: RE: JY and DeCSS and MAP
Date: Tue, 8 Feb 2000 14:38:22 -0000

> From: Donald Ramsbottom [mailto:donald@ramsbottom.co.uk]
>
> If it were a windows based decoder

Oops.. DeCSS is Windows based.

The author blamed a lack of Linux support for UDF (a filesystem used on DVDs) when DeCSS was developed.

-Alan-

Date: Tue, 8 Feb 2000 07:06:59 -0500
From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
Subject: Deceptive demands by MPAA
To: CYBERIA-L@LISTSERV.AOL.COM

I have cross-posted this to the CYBERIA and ukcrypto lists. I hope that those of you who receive duplicate copies will forgive me.

I have just read the demand that was sent by the Motion Picture Association of America to John Young, the maintainor of the invaluable Cryptome site: <http://cryptome.org/dvd-mpaa-ccd.htm>.

In their demand letter the MPAA recite the following facts:

On January 20, 2000, the United States District Court for the Southern District of New York granted a Preliminary Injunction prohibiting the Internet posting or other provision of DeCSS, having found that DeCSS was a prohibited circumvention device within the meaning of §1201(a)(2) and that the offering, providing or trafficking of DeCSS on the Internet violated §1201(a)(2). That court thus enjoined:
Posting on any Internet web site, or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in DeCSS, and (b) posting on any Internet web site, or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof, that: (i) is primarily designed or produced for the purpose of circumventing, or circumvention the protection afforded by, CSS, or any other technological measure that effectively controls access to plaintiffs' copyrighted works or effectively protects the plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof. . .
The Superior Court of Santa Clara County, California also recently granted a Preliminary Injunction against the Internet posting of DeCSS.

And then they say, not untruthfully,

If you are bound by an injunction, maintaining the DeCSS utility on your system or network violates the above injunction[s] and risks court sanctions for contempt.

And finally they demand that John Young do all sorts of things that he would in most cases not be bound to do were he bound by one of the injunctions.

What I find very disturbing is that the MPAA does not quote the portion of the SDNY's preliminary injunction that says who is bound to obey the language that they do quote, for if they had quoted that language it would have been clear that John Young is not bound in anyway by that injunction, which is, by its express terms and by the provisions of the Federal Rules of Civil Procedure, binding only on named parties and their agents and others acting in concert with them. (Nor do they mention that John Young is not a party to the California suit.)

Now after quoting the courts order, the MPAA just says ``if you are bound by an injunction'' and does not say that John Young is bound by one of the injunctions in question, although that is the clear implication of the rest of their letter, considering that there would be no basis for their demands were John not bound.

To say directly that John is bound by either of the preliminary injunctions would be to tell a lie. To suggest it is, if not a lie, at least an effort to deceive.

This seems to me to be a clear case of deliberately using misleading language to deceive John Young and other non-parties who received similar letters.

I suppose that is why the demand comes from MPAA and not its attorneys, whom I hope would be, though I fear would not be, subject to sanctions if they had sent such a letter.

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu

NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

Date: Tue, 08 Feb 2000 16:21:06 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Donald Ramsbottom <donald@ramsbottom.co.uk>
Subject: RE: JY and DeCSS and MAP

At 14:38 08/02/00 -0000, you wrote:

>> From: Donald Ramsbottom [mailto:donald@ramsbottom.co.uk]
>
>> If it were a windows based decoder
>
>Oops.. DeCSS is Windows based.
>
>The author blamed a lack of Linux support for UDF (a filesystem used on
>DVDs) when DeCSS was developed.

Big, oops, but thats what you get for doing things first thing before the first coffee kicks in.

Seriously it does not alter what I said that much.

Owen has a had a good point regarding the dissemination of data of third parties in the demand in that it would contravene the Data protection Act (the demand of MAPs lawyers) as well as the European directives on data protection.

Peter has put some of my ravings more eloquently in his posting. These are basically that the injunction is against named and served persons, and there is no requirement that even those named persons have to give up information about their confederates. The defendants have to stop publishing the code on the net and that is all.

The letter is a meant to frighten and coerce. I suspect John will not be intimidated, but many others may be. Incidentally in the UK it may be a contempt to state or imply that a court order has a certain effect when you know that it does not have that effect. I wonder what the position is in NY/CA? It is also bad practice a s a solicitor to threaten something which you have no instructions to do or threaten something unlawful. As the letter seems to be requiring unlawful demands it may be that it would contravene the state bar rules.Probably not but possible.

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists

From: "Simpson, Sam" <s.simpson@mia.co.uk>
To: ukcrypto@maillist.ox.ac.uk
Subject: RE: JY and DeCSS and MAP
Date: Tue, 8 Feb 2000 15:51:06 +0000

(Sorry if this question is gibberish...)

A quick question: Doesn't it make sense for as many people as possible to mirror the sites, even if it is their intention to promptly remove the site once they receive a "cease and desist" letter?

Also, is it recommended that indeed people do act upon these cease and desist letters?

Cheers,

Sam Simpson
Communications Analyst
-- http://www.scramdisk.clara.net/ for ScramDisk hard-drive encryption &
Delphi Crypto Components. PGP Keys available at the same site.

Date: Tue, 8 Feb 2000 16:00:46 GMT
From: Ian G Batten <I.G.Batten@ftel.co.uk>
To: ukcrypto@maillist.ox.ac.uk
Subject: Re: JY and DeCSS and MAP

> Thankfully we have to be in their jurisdiction for this to apply.=20

Those with an interest in these sorts of things will recall the JET Report saga. http://www.xs4all.nl/~yaman/jetusa.htm, for example.

Ian

Date: Tue, 08 Feb 2000 18:07:28 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Donald Ramsbottom <donald@ramsbottom.co.uk>
Subject: Re: JY and DeCSS and MPAA

SNIP

>> Thankfully we have to be in their jurisdiction for this to apply.
>
>Those with an interest in these sorts of things will recall the JET
>Report saga. http://www.xs4all.nl/~yaman/jetusa.htm, for example.

I have just read this and confess I had not seen it before. I can imagine the County Solicitor being told by the County secreatry to "DO SOMETHING" and he did what many solicitors do which was at the behest of the client, fire off a letter full of indignation and threat. I suspect the solictor did not expect to get a reply, much less the reasoned opnion that he did. Notts County Council do not have the resources or will to pursue matters out of the jurisdiction (Unlike MPAA), and the reposte was probably filed quietly away.

The MPAA do have the requisite resources to follow up their threats (where legal), and if they could further their cause by say, attempting to shut down this group I have no doubt they would.

Sam has a point about disemination in his posting, and the more that do, the more pathetic the MPAA action looks and the less tenable; (there must come a point even in US copyright where the public knowledge of the so called trade secrets is so widespread they cannot sustain their arguement). What you do if you get a letter is a question for individuals. If you have weak nerves, comply for a quiet life, if on the other hand you are happy to "see what happens" then don't. personally I'd be happy to see what happened, but then I'm a lawyer who would like to put certain points in an English Court about what they were trying to do to me. Afterall, I am not a US citizen, I did not write the code or hack it (I am unable to do so), so the only thing that they could try and "pin" on me would be the dissemination in breach of copyright, but as it has been published hundreds of thousands of times by now I suspect they would get short shrift. that is my personal opinion, do not rely on it as defence!

I hope there have been sufficient postings to give JY some food for thought, and we should all give him our support (where we can), as it may be not on this issue but another that you or I have need of assistance.

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists

From: pgut001@cs.auckland.ac.nz (Peter Gutmann)
To: ukcrypto@maillist.ox.ac.uk
Subject: Re: JY and DeCSS and MAP
Date: Wed, 9 Feb 2000 06:53:22 (NZDT)

"Simpson, Sam" <s.simpson@mia.co.uk> writes:

>A quick question: Doesn't it make sense for as many people as possible to
>mirror the sites, even if it is their intention to promptly remove the site
>once they receive a "cease and desist" letter?

I've had the code (in the form of the Hoy declaration) up on my web page for awhile (http://www.cs.auckland.ac.nz/~pgut001/misc/dvd-hoy-reply.html). The more people that post it, and the more juristictions it appears in, the harder it'll be for the MPAA - they can't fight it in every country on the planet (well, they can try I guess).

>Also, is it recommended that indeed people do act upon these cease and
>desist letters?

I intend to ignore any legal blustering, the chances of them successfully defending a mechanism designed to enforce differential pricing in a New Zealand court is nil (DVD players sold in NZ usually have the region coding disabled because of this, so CSS is meaningless to begin with).

On a related topic, has anyone looked at doing a clean-room copy of CSS a la RC2 and RC4 a few years back? I know one or two people have looked at this in an informal manner, but we couldn't find anyone who hadn't already seen the DeCSS code to act as the clean person (it says a lot for the status of their "trade secret" that we couldn't actually find anyone who didn't already know it).

Peter.

[Updated 9 February 2000]

From: "Brian Gladman" <brian.gladman@btinternet.com>
To: <ukcrypto@maillist.ox.ac.uk>
Subject: Re: JY and DeCSS and MAP
Date: Tue, 8 Feb 2000 21:18:21 -0000

[Snip Gutmann and Simpson messages]

Has anyone got any idea what position an ISP would take if a client put this up on their web page and refused to take it down when threatened?

I am quite happy to put 'two fingers' up to people who challenge the rights of citizens but increasingly I find that when these 'evil empires' realise that they are on a lost cause in trying to bully someone they will often go for their ISP instead. Having just moved my ISP to take advantage of free weekend access I am not sure that I want to move again since it was traumatic getting everyone to notice that I had moved!

If no-one has any answers to this maybe we should all contribute to the formation of some form of virtual web site (is there such a thing?) where we can all contribute this sort of stuff without fear of being got at by groups like the MPAA.

Of course we should not have to do this in a sensible society but it would seem that our government has spent far too much time worrying about key escrow and far too little time protecting the rights of citizens and consumers from the evil intentions of groups like the MPAA.

Worse than this it seems that our legislators may even have allowed the MPAA to sneek through laws that citizens would never have supported had they known about them. Is this true in the UK or Europe or both?

If this is true then it seems that a talk shop like ukcrypto is no longer enough - we need to have an EFF(UK) or something similar with real muscle to fight against these undemocratic business interests before it is too late - if governments won't protect us we have no option but to do it for ourselves.

Sort of explains why I shuddered when I heard that, in exchange for giving up key escrow, the UK government has establsihed a situation in which future encryption policy will be determined by a government/industry body with no independent public interest representation.

Why is it that we have a government that preaches so continuously about the great benefits of cyberspace but consistently does so little to tackle the really important issues that will determine whether the vision of the information society turns out to be a pleasant dream or a very, very bad nightmare?

Brian

To: ukcrypto@maillist.ox.ac.uk
Subject: Re: JY and DeCSS and MAP
Date: Tue, 08 Feb 2000 22:08:04 +0000
From: Ross Anderson <Ross.Anderson@cl.cam.ac.uk>

> when these 'evil empires' realise that they are on a lost cause in
> trying to bully someone they will often go for their ISP instead

Like when John Major sued the Spectator's distributors after they'd said he was having it off with his cook. So what's new?

> If no-one has any answers to this maybe we should all contribute to
> the formation of some form of virtual web site (is there such a
> thing?) where we can all contribute this sort of stuff without fear of
> being got at

That's precisely why I invented the Eternity Service. The original paper is at:

http://www.cl.cam.ac.uk/users/rja14/eternity/eternity.html

Some related links are at:

http://www.cypherspace.org/links.html

There's even a mailing list. Searching my filespace for the somewhat Clint Eastwood-esque phrase `Welcome to Eternity' I find that you should send the message 'subscribe eternity' to:

Majordomo@internexus.net

The Eternity Service was motivated by the Scientologists' raid on penet.fi, and by my getting served with an injunction by a bank while I was digging out what went wrong with cash machines.

Looks like the sooner someone can build and field such a thing, the better :-)

Ross

To: ukcrypto@maillist.ox.ac.uk
Subject: Re: JY and DeCSS and MPAA
Date: Tue, 08 Feb 2000 13:17:10 -0500
From: "Peter D. Junger" <junger@samsara.law.cwru.edu>

Donald Ramsbottom writes:

: SNIP

Nottinghamshire County Council had already obtained a restraining order or injunction against the reporters who originally posted the JET report on their web site, from which I, and many others, copied it when informed that the application for an injunction was pending and there was quite a bit of publicity about the matter, so they could not just file my letter away, though they did not, as I recall, respond to it. But they did withdraw their application for an injunction _and agreed to pay part of the defendant's legal fees_.

: The MPAA do have the requisite resources to follow up their threats (where
: legal), and if they could further their cause by say, attempting to shut
: down this group I have no doubt they would.

They do not seem to have any good sense as to what would further their cause, although they do have lots of resources. Remember that these are the characters who in the California case filed a copy of the ``trade secrets'' that they are trying to protect in the public court records.

: Sam has a point about disemination in his posting, and the more that do, the
: more pathetic the MPAA action looks and the less tenable; (there must come a
: point even in US copyright where the public knowledge of the so called trade
: secrets is so widespread they cannot sustain their arguement). What you do
: if you get a letter is a question for individuals. If you have weak nerves,
: comply for a quiet life, if on the other hand you are happy to "see what
: happens" then don't. personally I'd be happy to see what happened, but then
: I'm a lawyer who would like to put certain points in an English Court about
: what they were trying to do to me. Afterall, I am not a US citizen, I did
: not write the code or hack it (I am unable to do so), so the only thing that
: they could try and "pin" on me would be the dissemination in breach of
: copyright, but as it has been published hundreds of thousands of times by
: now I suspect they would get short shrift. that is my personal opinion, do
: not rely on it as defence!

The California case is based on the idea that the widely spread code that they want to suppress is still a ``trade secret'' under the definitions of the California trade secret law. I have difficulty in conceiving how they could charge someone in the UK with violating California trade secret law; perhaps there is a corresponding body of law in the UK that they could proceed under against UK subjects.

The New York case is not based on copyright, but on a peculiar provision of the oddly named Digital Millenium Copyright Act that forbids the making of technology, which the Motion Picture Association claims includes the writing and publishing of the source code of computer programs, that can be used to circumvent scrambling and encryptions screens that prevent access to copyrighted materials---including programs that can be used by those who a right to access the copyrighted materials. I find it hard to imagine that the UK courts would be very eager to uphold the application of this Act to the activities of British subjects in the UK. And I doubt that there is any similar statute in force in the UK.

Still, there is also the case out of Norway, where the criminal charges against the 16 year old defendant are apparently based on an improbable reading of an ``anti-hacking'' statute. The DeCSS code apparently can be used to hack into the DVD drive on one's own computer, but that is hardly the type of activity that ``anti-hacking'' statutes are intended to prevent.

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu
NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

Date: Tue, 8 Feb 2000 19:01:56 GMT
From: Simon Wilkinson <sxw@dcs.ed.ac.uk>
Subject: Re: JY and DeCSS and MPAA
To: ukcrypto@maillist.ox.ac.uk

[Snip Junger message]

A UK national did the original work in writing css-cat (the bit of the Linux DVD suite that does the actual decoding). He published this code on a UK web site. He, and his service provider, were then sent a cease and desist order, claiming that the provision was in direct contravention of UK copyright law (specifically sections 296(1) and (2) of the Copyright Designs & Patents Act 1998), which contains a similar restriction on products designed to contravene copyright protection measures. He took down his copy of the css-cat code, and renounced his ownership of it.

See :

http://livid.on.openprojects.net/pipermail/livid-dev/1999-November/000870.html
http://livid.on.openprojects.net/pipermail/livid-dev/1999-November/000876.html
http://livid.on.openprojects.net/pipermail/livid-dev/1999-November/000957.html

in particular, and other messages in that thread.

Cheers,

Simon.

Date: Tue, 08 Feb 2000 18:25:04 -0500
To: ukcrypto@maillist.ox.ac.uk
From: Padgett 0sirius <padgett@gdi.net>
Subject: Re: JY and DeCSS and MPAA

Am not a lawyer so do not know but how many times does a demand such as the one received need to be repeated to be considered "harassment" if the demand has no merit (but tries to look as if it has) ?

A. Padgett Peterson, P.E., CISSP: Cybernetic Psychophysicist
Anti-Virus, Cryptographics, & Antique Radio Researcher
http://www.freivald.org/~padgett/index.html
mailto:padgett@gdi.net PGP 6.5 Key on request

Date: Wed, 9 Feb 2000 01:09:22 -0700 (MST)
From: "Rev. Ochressandro N U Rettinger" <ogre@noisebox.dhs.org>
To: jya@pipeline.com
Subject: Theoretical MPAA bluster

Hi, you don't know me, but I've read the email you got from someone claiming to represent the MPAA, and I really have to wonder, is it really them? I mean, you surely know as well as I do that email is extremely easy to forge, and since they didn't even have the courtesy to sign thier letter properly, (not that I expect you to have been introduced properly to verify such a signature anyway) I can't imagine why you're even worried about what is an obvious hoax by some oh-so-witful net.prankster or other buffoon. Later on,

-Rev. Ochressandro N U Rettinger

Date: Wed, 9 Feb 2000
To: "Rev. Ochressandro N U Rettinger" <ogre@noisebox.dhs.org>
From: jya@pipeline.com
Subject: Theoretical MPAA bluster

Hi,

You've raised a challenging point. I'll see if the letter can be verified. If not, it's a doosie of a hoax.

Thanks,

John

Date: Wed, 09 Feb 2000 07:36:36 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Donald Ramsbottom <donald@ramsbottom.co.uk>
Subject: Re: JY and DeCSS and MAP

SNIP

>Has anyone got any idea what position an ISP would take if a client put this
>up on their web page and refused to take it down when threatened?

At a guess and for a quiet life they will not want to "rock n roll" with the financial clout of MPAA or its ilk, and will take down the offending site. I suspect that a letter would be sufficient, probably pointing out the analogy that could be drawn with the Godfrey v Demon case. That is we put you on notice to remove the material, if you do not in a reasonable period of time then we will sue you the ISP, and not the offending site who is not worth suing in any event.

Having put it up in the first place is good enough.

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists

Date: Wed, 09 Feb 2000 08:23:37 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Donald Ramsbottom <donald@ramsbottom.co.uk>
Subject: Re: JY and DeCSS and MPAA

>A UK national did the original work in writing css-cat (the bit of the
>Linux DVD suite that does the actual decoding). He published this code
>on a UK web site. He, and his service provider, were then sent a cease
>and desist order, claiming that the provision was in direct
>contravention of UK copyright law (specifically sections 296(1) and
>
>(2) of the Copyright Designs & Patents Act 1998), which contains a
>similar restriction on products designed to contravene copyright
>protection measures. He took down his copy of the css-cat code, and
>renounced his ownership of it.

S:296A (i) says:

where a person has the use of a computer program under an agreement, any term or condition in the agreement is void so far as it purports to prohibit or restrict:
(1) The making of any backup copy of the program which it is necesssary for him to have for the purpose of the agreed use.
(ii) where the specified conditions are met (s:50 B(2) added later) the decompiling of the program; or
(iii) the use of any device or means to observe, study or test the functioning of the program in order to understand the ideas and principles which underlie any element of the program.

Other permitted acts or uses may be

It is not an infringement of copyright for a lawful user of a copy of a computer program to copy or adapt it, provided that the copying or adapting:
(i) is necessary for his lawful use
(ii) is not prohibited under any term or condition of an agreement regulating the circumstances in which its use is lawful.

The above is from Halsbury laws of England Vol 9(2) para 366

Note there has to a lawful use in the first place so aquiring a copy and decompiling is not covered.

So far as Devices designed to circumvent copy-protection: the following applies

where copies of a copyright work are issued to the public by or with the licence of the copyright owner in an electronic form which is copy protected, the person issuing the copies to the public has the same rights against a person, who knowing or having reason to believe that it will be used to make infringing copies:
(i) makes, imports sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire,or, in the case of a computer program only possesses in the course of business , any device or means specifically designed or adapted to circumvent the form of copy protection employed; or
(ii) Publishes information intended to enable or assist persons to circumvent that form of copy protection

As a copyright owner has in respect of an infringement of copyright.

Halsburys Laws of England vol 9(2) para477

Additionally there are rights of search and seizure which I will not go into in detail. in short there are some holes in the above but it covers what has been done.

On the bright side at least it's only a civil offence and not criminal. Jon in Norway has not been charged yet but could be.

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists

Date: Wed, 9 Feb 2000 08:28:47 +0000 (GMT)
From: Quentin Campbell <Q.G.Campbell@newcastle.ac.uk>
To: ukcrypto@maillist.ox.ac.uk
Subject: Re: JY and DeCSS and MAP

> I am quite happy to put 'two fingers' up to people who challenge the rights
> of citizens but increasingly I find that when these 'evil empires' realise
> that they are on a lost cause in trying to bully someone they will often go
> for their ISP instead. Having just moved my ISP to take advantage of free
> weekend access I am not sure that I want to move again since it was
> traumatic getting everyone to notice that I had moved!
>
> If no-one has any answers to this maybe we should all contribute to the
> formation of some form of virtual web site (is there such a thing?) where we
> can all contribute this sort of stuff without fear of being got at by groups
> like the MPAA.

[snip]

An interim solution in the UK might be for an academic lawyer who specialises in the areas of law and ethics and rights under discussion here, to front such a web site and discussion forum hosted at her university.

The advantage I see in this is that a UK academic has the right of (almost) unfettered academic expression in pursuing her research. This protection is enshrined in the Statutes of her Univeristy. This makes it very difficult for her ISP (ie. the employing University) to try to close down her site should an organisation like MPAA try to bully the university. [I hope that a University would resist such pressure as a matter of principle but such concerns often take second place when external funding, etc, is involved.]

It is frustrating that as an Academic-Related staff member I do not have the same protections under the Statutes as an Academic staff member has so I cannot act on my own initiative in this regard. However it is perfectly in order for me to provide professional assistance to an academic pursuing her research.

Quentin

PHONE: +44 191 222 8209 Computing Service, University of Newcastle
FAX: +44 191 222 8765 Newcastle upon Tyne, United Kingdom, NE1 7RU.
-------------------------------------------------------------------------
"Any opinions expressed above are mine. The University can get its own."

From: "Brian Morrison" <bdm@fenrir.demon.co.uk>
To: "ukcrypto@maillist.ox.ac.uk" <ukcrypto@maillist.ox.ac.uk>
Date: Wed, 09 Feb 2000 07:32:14 +0000 (GMT)
Subject: Re: JY and DeCSS and MAP

On Tue, 8 Feb 2000 21:18:21 -0000, Brian Gladman wrote:

>Why is it that we have a government that preaches so continuously about the
>great benefits of cyberspace but consistently does so little to tackle the
>really important issues that will determine whether the vision of the
>information society turns out to be a pleasant dream or a very, very bad
>nightmare?

Well it's either that the policy makers don't understand what they are doing, or that they understand only too well. As the environment in which we perform our various transactions and interactions becomes more complex and technical, it seems that fewer and fewer of us fully understand all the relevant issues. I certainly support the idea of a UK EFF, but that sort of thing needs funding and permanent officers to drive policy and action. I only wish that I were suitably qualified.......

- --

Brian Morrison bdm@fenrir.demon.co.uk

"Almost noon, and she had yet to go the launderette in Concreton to
thaw out chickens in the spin-drier..."

From: Michael Bacon <MBacon@snci.co.uk>
To: ukcrypto@maillist.ox.ac.uk
Subject: RE: Deceptive demands by MPAA
Date: Wed, 9 Feb 2000 08:59:55 -0000

> -----Original Message-----

> From: Peter D. Junger [mailto:junger@samsara.law.cwru.edu]
> Sent: 08 February 2000 12:07
> Subject: Deceptive demands by MPAA

[snip]

The letter concludes "The information in this notification is accurate, and we declare, under penalty of perjury, that the Motion Picture Association of America is authorized to act on behalf of the owner[s] of exclusive rights described above." -- which, taken together with the demand to cease "this illegal activity", suggets that 'sanctions' could apply to the MPAA.

Michael (Streaky) Bacon
____
~(____)>
" "

The views expressed herein are my own and do not necessarily reflect those of my employer

Date: Wed, 09 Feb 2000 11:40:05 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Donald Ramsbottom <donald@ramsbottom.co.uk>
Subject: RE: Deceptive demands by MPAA

SNIP

>The letter concludes "The information in this notification is accurate, and
>we declare, under penalty of perjury, that the Motion Picture Association of
>America is authorized to act on behalf of the owner[s] of exclusive rights
>described above." -- which, taken together with the demand to cease "this
>illegal activity", suggets that 'sanctions' could apply to the MPAA.

The MPAA do seem to have left themselves somewhat open to attack by JY's Lawyers. They must know the contents of the various injunctions, after all they recite them. They must also know that the demands which they make are not part of the injunctions they recite and that the injunction does not apply to JY as, as far as I am aware he is neither a defendant, nor has he been personally served with the injunction. Such an abuse of the Court process and misleading demands would at least in the UK be looked at very dimly by the Courts if it were brought to their attention and could, as I have mentioned elswhere be a potential contempt of Court.

We will have to see whether they pursue matters further.

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists

Date: Wed, 9 Feb 2000 12:24:26 +0000
From: Pete Chown <Pete.Chown@skygate.co.uk>
To: ukcrypto@maillist.ox.ac.uk
Subject: Re: JY and DeCSS and MPAA

I suppose the other argument the MPAA could use is that while the original reverse engineering was lawful, the subsequent publication of the *source code* to deCSS was not. If I remember correctly, the Copyright Directive does not allow information obtained by lawful reverse engineering to be published. You can use it for developing products of your own, but you can't publish it.

Is the source code of deCSS a product, or is it information? If it is information, the defendants would have to fall back on the Mars case, which is a much weaker defence IMHO. Another problem with relying on the Mars case is that in the course of reverse engineering, they probably created derived works; for example a disassembly listing of the product. I don't remember that the Mars case is authority for this being lawful.

All this aside, though, I think on balance the source code is most likely to be regarded as a product. I'm just throwing this one in so that those better qualified to comment can see what they think...

----------------------------------------------------------------------
phone +44 (0) 20 8542 7856, fax +44 (0) 20 8543 0176, post:
Skygate Technology Ltd, 8 Lombard Road, Wimbledon, London, SW19 3TZ

Date: Wed, 09 Feb 2000 11:34:11 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Nicholas Bohm <nbohm@ernest.net>
Subject: Re: JY and DeCSS and MPAA

At 09:58 AM 2/9/2000 +0000, Pete Chown wrote:

I do not think the 1988 Act anticipated the present case. "Copy-protected" means protected against copying, and includes any means intended to prevent or restrict copying of a work or to impair the quality of copies made - 296(4).

Copy-protection is not the same as encryption, which is covered in section 298; but that applies only to broadcasting or cable programme services provided from a place in the UK, and to encrypted transmissions of any other description sent from a place in the UK. This does not cover scrambled DVDs, CDs, floppies etc, since their contents are not "transmissions" in this context.

Regards,

Nicholas Bohm

Salkyns, Great Canfield,
Takeley, Bishop's Stortford CM22 6SX, UK
Phone 01279 871272 (+44 1279 871272)
Fax 01279 870215 (+44 1279 870215)
Mobile 07715 419728 (+44 7715 419728)

Date: Wed, 09 Feb 2000 12:50:41 +0000
To: ukcrypto@maillist.ox.ac.uk
From: Donald Ramsbottom <donald@ramsbottom.co.uk>
Subject: Re: JY and DeCSS and MPAA

>I do not think the 1988 Act anticipated the present case. "Copy-protected"
>means protected against copying, and includes any means intended to prevent
>or restrict copying of a work or to impair the quality of copies made -
>296(4).
>
>Copy-protection is not the same as encryption, which is covered in section
>298; but that applies only to broadcasting or cable programme services
>provided from a place in the UK, and to encrypted transmissions of any
>other description sent from a place in the UK. This does not cover
>scrambled DVDs, CDs, floppies etc, since their contents are not
>"transmissions" in this context.

This is all true and combined with the Mars case and those exceptions referred to in SS 50(B) and 296(A) may mean that if you buy a DVD player and/or disks you can decrypt and/or reverse engineer them. What you do with that information is a different matter. but as Nick has pointed out s:296 (4) is to prevent copying and not decryption therefore it is arguable that the restriction on publishing (in s:296) the information you have obtained from the reverse engineering/decryption process may be published. Any other IP lawyers out there care to comment?

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists

Date: Wed, 09 Feb 2000 14:31:47 +0000
From: Philip Rowlands <phr@doc.ic.ac.uk>
To: ukcrypto@maillist.ox.ac.uk
Subject: Re: JY and DeCSS and MPAA

Donald Ramsbottom wrote:

[Snip]

I have invented a new "copy protection" scheme for data distributed in an electronic form. All protected files have the secret string "phr" prepended to the actual data. I intend to licence this trade secret for vast fees. Unfortunately, I am not very good at designing encryption systems, and some young chap has reverse-engineered how my scheme works.

Would he be in breach of part (ii) above if he made public his discovery?

Does the law protect implementors of flawed encryption, as it seems to be in the DeCSS case? If so, what is the rationale for this? How far would I get if I tryed to sue the hypothetical programmer in the manner that the MPAA has been proceding?

Phil