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And this is radio station WBAI in New York, where it's 7.01, time for Off The Hook.
And good evening to everybody.
The program is Off The Hook.
Emanuel Goldstein here with you on this third day of July,
the day that's getting dangerously close.
It's going to be in just about a week, in a couple of days,
the H2K2 conference will be upon us.
Upon us, like some kind of invading army, I suppose.
And Rob is here, all the way from Amsterdam.
Greetings.
Hey there.
How are you doing?
Well, hanging in there.
Yeah.
It's hot.
It's very hot.
I'm sorry about that.
And it's not something that was supposed to happen.
But fortunately, the way I'm looking at it
is that if it's happening now, it
won't be happening during the conference.
So that's something to, it'll be raining probably.
All kinds of other things will be happening.
But you just came from the ruckus camp
out there in California, correct?
That was fun, yeah.
Interesting people.
Good people working on all sorts of different projects,
realizing they need technology, are already using technology.
Everybody know what the ruckus thing is?
Why don't you tell us quickly.
The Ruckus Society organizes trainings
for activists, nonviolent protest methods of all kinds.
And they did a special action camp
the whole week, which dealt with technology
and how activists could use technology better,
both in communicating among themselves
and communicating with the world,
how you can use websites effectively,
how you can use the internet, just all sorts of fun stuff.
And there'll be a report from Ruckus at H2K2 as well,
where we basically update people who
didn't make it to the ruckus camp on what kinds of things
were talked about there and what kinds of, I guess,
progress was made.
It is an historical event.
I mean, you were one of how many people at this thing?
I guess about 100, maybe 200.
It sort of differed over the days.
There was busier and less busy days.
And Mike, who's usually on this program,
he's being held over, I believe, for questioning
by the people over there.
But once they release him, he'll be back here,
I believe, next week.
And he'll have stories to tell about that as well.
So yeah, the ruckus camp drew all kinds of people.
I wanted to go to it myself.
But this conference thing has been taking all my time.
I mean, it's unbelievable.
But it feels great.
It really feels like we're bringing people together
at this thing.
We have over 70 panels.
I mean, only eight years ago, we did the first Hope.
You remember that, the chaos that entailed,
also at the Hotel Pennsylvania.
And just to have two days worth of a single track
was something beyond what we had ever planned.
And now, we have 70 different panels of speakers,
a network room that's something like 35,000 square feet,
and just unbelievable expectations as to what's
going to be happening.
So pre-registration is closed.
You can no longer buy tickets to this thing on the internet.
You'll have to go to the door.
And you'll be able to go to the door, which
is on 7th Avenue, right on 7th Avenue,
between 32nd and 33rd Street.
It's called the Hotel Pennsylvania Pavilion.
And you'll be able to go there on Thursday, the day
before the conference.
That way, you don't have to wait on long lines that
rival Nick's playoff ticket lines across the street
at Madison Square Garden.
You know, it's this way.
We've learned a lot about crowd control,
about funneling crowds.
Remember that first year in 1994 when basically, yeah,
you were there too, Jim, weren't you?
Yeah, I was.
We were all.
Actually, Autocheck, you weren't there.
I was not there, no, unfortunately.
Well, three out of the four people in this room were there.
And that very first day, I believe we started.
We didn't start till 12 noon on Saturday.
To give you an idea, we had a single track.
We started at 12 noon on Saturday.
This time, we're starting at 10 o'clock on Friday,
10 o'clock in the morning.
And we have three different tracks of speakers.
I've seen the program.
It's quite an impressive lineup you've got there.
Yeah, it's unbelievable.
It really is.
A lot of hard work has gone into this thing
by many, many people.
The organization, I think, has taken off so tremendously
in the past decade.
And I think a lot of it is inspired by what you guys did
over in Holland with all the conferences, HIP, HAL,
Galactic Hacker Party, just to see what people can do
if they get together.
It's really awe-inspiring.
I don't think we'd be having any of these things
were it not for you guys.
But you need help, right?
You have to come up with a clever name for the next one.
Yes, in 2005.
2005, well, we've gone through what?
We've gone through GHP for Galactic Hacker Party.
We've gone through-
Hacking at the End of the Universe.
HEU.
Hacking in Progress.
Hacking in Progress, HIP.
Hackers at Large.
HAL, HAL 2001.
That was, I don't know, are there any more good names?
2005, we'll have to think about that.
And I believe next year in Germany,
there's going to be another Chaos Camp.
So we'll keep people updated on that.
How about Hackers Are Here, HA.
Hey, that's good, isn't it?
I like that.
That's very good, Autojack, very good.
I've been thinking about this for about a day now.
Hackers Are Here.
Or Hackers Are There, HAT.
Yeah.
Okay, well, whatever, we'll come up with something.
I'm sure the BAI listeners will help us out as well.
What else has been going on?
You can win a car.
I'm sorry?
You can win a car.
You could win a car.
You won't win it from us, but you could win a car.
That's for sure.
It's July 3rd, and you know what that means.
Yes, kids, it's time for Reagan Death Watch again.
Remember this?
Yes.
Last year?
Now, Jim, actually, it's good that you're here,
because I didn't bring my almanac,
and you're a walking almanac,
so it actually helps to have the facts
that you might have here handy.
But basically, what the Reagan Death Watch is,
and I've been told that maybe that's a little bit
disrespectful to have it phrased that way,
so maybe we'll call it the Reagan Death Challenge
this year, where we're challenging.
That sounds even worse.
It sounds like you're encouraging
Squeaky Fromm and Sarah Jane Moore.
No, they were only after Ford.
Oh, they were after Ford.
They were after Ford.
Hinkley.
Hinkley was after Reagan.
No, basically, all we need to do
is to get Reagan through the next day,
and he can beat the curse.
Now, the curse, as you well know,
is that every president elected in a year ending in zero
has either died in office or has died on July 4th.
Now, we're not gonna go over the history
like we did last year,
because we went over every single president last year,
and we found, yes, indeed, this is true.
So if you wanna argue about it,
go look in an almanac and argue with the almanac.
So basically, Reagan obviously did not die in office,
and in order to break this curse,
he must not die on July 4th.
Tomorrow being July 4th,
we all have to hope that Reagan does not die.
It doesn't have to be this July 4th.
It doesn't have to be.
That's right.
That's the thing.
Every year-
Well, we watch.
We watch to make sure that it doesn't happen.
Right.
That's the death watch.
Now, there's a lot of confusion,
and again, to clear this up from last year,
what time does the Reagan death watch start?
I mean, right now, it's midnight in parts of Europe.
Is it proper to have the Reagan death watch start then?
The answer is no, it is not.
The Reagan death watch starts at midnight
in the time zone that he is in.
So unless Reagan is in your time zone over there,
and I don't think he is.
I think he's in California and will be all the time now,
it does not start until 3 a.m. New York time,
12 midnight California time,
and it continues for 24 hours
until July 5th has broken on that particular time zone.
Right, and on the off chance that he travels
to some other time zone, of course, it would extend.
Yeah, well, he would have to travel
on July 4th to do that.
He knows well enough not to do that.
And again, a lot of people also are concerned that,
hey, every president in a year elected ending in zero.
George W. Bush, 2000.
Now, he does not have to worry.
He was not actually elected there.
So this is one time where-
And as the token Republican here, I protest.
What are you saying?
What are you saying here?
Do you want him to die in office or on July 4th?
No, no, he was elected.
Horrible thing to say.
I'm trying to protect him here.
Yeah, sure.
He could die, though.
Well, that's true.
Anything's possible.
This is probably not an appropriate conversation
to be having on the eve of July 4th.
Everybody's all paranoid about terrorist activity
in New York City on the 4th of July.
Rob, what do you think about this?
You come here from Europe,
and we're all in a tizzy over here
with all kinds of crazy predictions
and security precautions and all that kind of thing.
You sure go through a lot of security inspections
and stuff on airports,
and I'm always wondering what part of the procedure
that I've just undergone
could Mohammed Atta not have passed.
Yeah, I know.
It's really silly
because none of this would have prevented anything.
It just makes us all the more edgy.
Well, it solves the airline's problem of reselling tickets,
and it solves a bunch of problems,
but not the ones they say they're solving.
Let me just interject that one of your pet peeves
is not the right word,
but New York is on a slightly higher color code
than the rest of the country.
What, they changed the color?
No, they took it down.
If you go to the White House website,
the page that has the color codes
for the state of alert or whatever,
that page is gone.
They took it down.
Someone must have given them a copy of one of our shows
where we're making fun of it or something,
and they don't want that there anymore.
So that's another way
we don't know what color it is right now.
Yesterday, I believe it was Mayor Bloomberg,
got on air and said,
we're at orange or whatever.
Does Mayor Bloomberg have the right
to say what color we are?
I mean, color is a national thing.
It's not a local thing.
Well, I would think it would be a local thing.
I think there's probably a lot more danger
of a terrorist attack in New York
than in wheat fields in Nebraska.
Okay, fine.
I live in a small town.
Can I make my color red if I feel like it?
And if I feel particularly endangered,
can I say, okay, it's a red day today?
I don't think it works that way.
I thought it was a national thing.
Well, if you're a security official,
elected official, public safety,
something like that, maybe you can.
I think Mayor Bloomberg may have acted out of turn there,
and perhaps we should report this
to the federal agency in charge of colors.
All right, whatever.
World Cup is over.
What a great event that was.
Autojack and I, we were watching it nonstop.
I gotta say, though, I was reading.
This actually was on Slashdot, of all places.
They were talking about how the World Cup
was viewed in various parts of the world.
Without exception, in the United States,
people were complaining that they just
would not shut up talking while the game was going on,
and that they cut away.
During the last game, they cut away.
They did not show the emotional ceremony
with the winning of the World Cup with the Brazilians.
They just showed more commercials.
The raining cranes.
It was so sad, because we saw it on Canadian TV.
We saw the CBC, which deferred to the BBC,
and that's the way to see something like this.
You feel like you're watching public television.
It's not a sporting event.
It's kind of like something interesting
and educational, almost.
I know it sounds like a reach, but it really felt that way.
And just seeing all the different cultures
and all the different kinds of people getting together,
just the harmony and the camaraderie,
it was a really, really good thing.
I'm very happy I saw it.
Congratulations to everybody involved.
And one post note that a lot of people
might not be aware of.
The tiny Himalayan kingdom of Bhutan
got three goals from its captain
to beat visiting Montserrat 4-0
in a game for the title of World's Worst Team.
That's right, the World's Worst Team.
Wangyel Dorjai recovered from an eye infection
to become the hero in the matchup
billed as the other final,
which took place hours before Brazil beat Germany
in the World Cup final.
Bhutan came out of isolation in 2000
to become the youngest member of FIFA,
World Soccer's governing body.
FIFA ranked the team number 202
just ahead of last place Montserrat.
And the game was conceived
by a Dutch communications firm, RAP.
So that's a pretty good idea,
having the worst two teams play in a final.
I think that sums up the spirit right there.
Really pretty cool.
Yes, anyway, we have special guests with us on the telephone.
We have joining us two of our legal representatives,
Eric Grimm from Michigan,
who have represented us in the Ford case.
Eric, you there?
I am here.
And Robin Gross of the Electronic Frontier Foundation
helped represent us in the DECSS case two years ago.
Robin, are you there?
I'm here.
Great.
Well, we've had developments on both of these cases
in the last week.
Let's start with the good news first,
or the better news, I guess.
And that would be the Ford case
where the Ford Motor Company
officially dropped their challenge,
their appeal to the decision
that was reached against them last December.
That decision allowed us, 2600 Magazine,
to link the site with the word we cannot say over the air,
followed by GeneralMotors.com.
We linked that site to Ford.com.
They didn't like that.
They sued us.
They didn't even ask us to move it
or point it someplace else.
They just brought us into court
hoping for a president of some sort.
And Eric, what is it, in fact, that actually happened?
Well, actually, Ford first filed an appeal.
We also had an attorney's fees petition
pending with the trial court, which was denied.
So we filed a cross appeal.
And what happened is that Ford
conceded their loss in the case,
and 2600 made a decision
about whether to pursue the cross appeal.
And both parties simultaneously dismissed
the whole proceeding,
meaning that everything that Judge Cleland decided
in the trial court stands exactly as it was decided,
which means that even if you assume
that every single allegation in Ford's complaint is true,
Judge Cleland has decided that no court in America
can do anything about it.
Now, Ford had vowed to pursue this,
to appeal the decision that Judge Kaplan had decided on.
Not Kaplan, Cleland.
I'm sorry, Cleland, Kaplan.
Too many judges in my life.
Right.
Okay.
So basically-
If I had to choose between the two,
I don't know which I'd choose.
Well, I have to tell you,
when I was there in Detroit,
it seemed like Judge Cleland was listening to us.
Yes, he was.
I never got that feeling from Judge Kaplan.
I just never got that.
It seemed like he just was angry
that we were even wasting his time.
And maybe Robin can tell us a little bit more about that.
As far as the significance-
I've actually dealt with both judges.
Cleland, in terms of his demeanor on the bench,
I think is a much more receptive
and a more courteous fellow,
but in terms of their worldview and ideology,
I'm not sure if you get any advantage
from being in front of Cleland versus Judge Kaplan.
Well, I mean, we are fortunate
that he ruled in our favor in this
because I think it sets a precedent that-
Well, let's put it this way.
If it had gone the other way,
the precedent would have been devastating.
I mean, what do you think it would have meant
as far as the average web user?
Well, we would have had to see
what happened in future cases,
but it would have been essentially the first case
to provide very powerful ammunition
for something that a lot of big companies
have been looking for.
And whenever I go to continuing legal education conferences
right now, the one thing that a lot of corporate clients
are asking their big law firm attorneys is,
how can you enable us to use trademark law
to shut down the cyber gripers?
We don't want the truth to get out.
We're very comfortable with the old situation
in which in order to get a message
to a large number of people,
you had to go through television,
which meant that any given customer
just simply couldn't access an audience.
Now the internet has changed that completely,
and a lot of companies would like to use the law
to shut down the small,
what they view as annoying or possibly even damaging
person who tells the truth about their company.
And if Ford had won this case,
that would have been essentially the first arrow
in their quiver that they would have used to build on
in order to start shutting down dissenters.
And it makes sense that they would go after us first,
because in the eyes of most people,
we're probably not important enough to defend,
perhaps what we say is distasteful to some people's ears.
But I think there's a danger there
if you dismiss people because you don't agree with them,
because you think they're a fringe element of some sort,
because that's the first step that's taken.
And after that, they will take a bigger chunk
and silence even more people.
All right, well, Emanuel,
you are exactly the kind of defendant, symbolically,
that a company like Ford,
or that the recording industry
or the motion picture industry looks at as ideal
to have as a defendant in one of these cases,
because especially when you're dealing
with a former prosecutor like Judge Cleland,
who tends to come at things from a law and order focus,
you're exactly the kind of person
that he doesn't want to rule in favour of.
And that creates a likelihood,
at least in the minds of Ford and some other plaintiffs,
of their getting their way and making some bad law
through careful selection of who the defendant is.
Now, that careful selection, of course,
was the whole basis for the DECSS case,
which pitted us against, well, pretty much all of Hollywood,
and the first test of the Digital Millennium Copyright Act,
the much-hated DMCA.
Back in 2000, we were sued
by the Motion Picture Association of America
for daring to print the source code for the DECSS program,
which allows people to basically decrypt DVDs.
Is that the proper way to say it?
It was widely misreported in the press as a pirating tool,
a way of copying DVDs.
That's not what it ever was.
It basically allowed you to transport the capabilities
of a DVD player to a Linux machine, for instance,
a non-supported operating system.
That's right, they're making it so that you have
to run a certified operating system
in order to be able to play a DVD on your computer.
What the DECSS did was allow you to bypass that
and put control back in the hands of the consumer,
meaning that they were able to buy a DVD
and buy an operating system and buy a computer
and make it all work together.
That's really what it was all about.
It had nothing to do with piracy.
However, the press just did not see that
or did not want to see that.
That's what we were fighting against
as far as getting the story reported.
It was very difficult.
It was very challenging, but we managed to do it
with the help of resources like WBAI, 2600 meetings,
the Electronic Frontier Foundation, of course,
and all kinds of people who had clues
about what it was that was really going on.
So now, two and a half years later,
two and a half years after we initially got sued
by the MPAA, it's a very different world.
It's a world where people know what the DMCA is.
It's a world where people are educated
about the threats that are facing them
from such organizations as the recording industry
of America and the Motion Picture Association
of America, among others.
So with all that in mind, that is where we came
to the decision that we announced today
that we are not going to be pursuing the appeal
of the DECSS case to the Supreme Court.
Reason being that there is a very, very, very slim chance
that the Supreme Court would even agree
to hear the case in the first place.
And them deciding not to hear the case,
that's a setback right there.
Then, if they did agree to hear the case,
one in a hundred chance maybe,
if they agreed to hear the case,
the odds of them actually ruling in our favor
are even smaller, and that would be a setback as well.
See, the thing is, we are, I guess,
the targeted group here.
We are defendants that the other side likes to have
because the judicial system is kind of prejudiced
against us, which they're really not supposed to be,
but they are.
There are many other people right now fighting this fight.
We have Dmitry Skirov, who was prosecuted,
jailed, in fact, for a violation of the DMCA.
There's many other cases that are pending,
and I'm sure many others will be happening
in the next few years.
It's a changed environment, and in that way,
I think we come out of this a lot stronger,
and I think that it's the right decision to make.
Now, Robin Grosser of the EFF is with us too,
and maybe you could go into a little bit more detail
as to just what this decision actually means.
Well, this decision was hard fought,
and we, as you well know, we went back and forth,
and we weighed the pros and the cons,
and ultimately decided, as you stated,
the Supreme Court is very unlikely to take this case.
For one thing, this is really the only
appellate court decision that has been issued
about the DMCA's anti-circumvention provisions,
so we don't really have a split in the circuits,
which is often a necessary thing
before the Supreme Court is willing
to take a look at a case,
is for there to be different parts of the country
that have come up with different rules,
and the Supreme Court will come in
and try to establish a uniform national rule,
and it's still pretty early in the enforcement of the DMCA.
We've only got this one Second Circuit ruling,
so the chances of the Supreme Court
taking it are extremely rare,
and quite frankly, we feel that if they did take it,
these would not be the best facts to present to the court
to help them to see a lot of the problems
that have come out since the DMCA was passed,
and we want to win.
We want to get the DMCA's
anti-circumvention provisions repealed,
and if this is not the best vehicle to do that,
then we'll find the best vehicle that is,
and we'll bring another case to the Supreme Court
that will be successful in overturning the statute.
Now, was this, in fact, not the case
when we launched the case in the first place,
when we decided to fight the initial court case,
when we decided to appeal?
Was it right to stay in it at that point?
I think it was.
I think we did a real job of educating this country,
and really the world,
about what the Digital Millennium Copyright Act is
and why it's a problem,
and although we were not terribly successful
at the Court of Appeals in getting the DMCA overturned,
we did come up with some legal rulings in that decision
that are very helpful to society.
There's the Second Circuit Court of Appeals,
found that computer code is a creative expression
worthy of First Amendment protection,
and that falls right in line
with a lot of the other cases
that we've brought in this realm,
and so that's a really important ruling
for the Second Circuit to have made and to have recognized,
but we don't wanna lose that ruling.
We don't wanna push too hard
and ask for too much too soon,
so I think what we've done to this point
has been the right thing.
We have fought this battle.
We have educated people about the problems of the DMCA,
but we're gonna bring a different set of facts
before the Supreme Court to actually have it repealed.
Now, Manuel?
Yes, go ahead.
I'd just like to say that I agree with Robin 100% on that,
that EFF did exactly the right thing,
precisely because when you look at Judge Kaplan's ruling,
it had a lot of rough edges on it,
and I think that the Second Circuit decision was important.
We didn't get everything
that our perspective wants to get out of that,
but nevertheless, it definitely did remove
some of those rough edges on Judge Kaplan's decision,
and there's absolutely nothing wrong
with the Electronic Frontier Foundation
and other people who are fighting for freedom
to use essentially the same strategy
that the recording industry
and the motion picture industry have been using,
and make sure that we set up the cases
so that it's a very favorable fact pattern
for the positions that we're trying to argue
in front of court,
instead of letting the motion picture industry
decide what battleground we're going to fight on.
So I think that the EFF has done exactly the right thing
by taking the appeal to this point
and waiting for a little while for the next case
and a better case to take it up to the Supreme Court.
And one thing that really impressed me
over the course of this entire thing
is just the number of people that have come together.
I mean, apart from the legal finesse
of the Electronic Frontier Foundation,
the Garbus firm, Kathleen Sullivan,
there have been so many people
that have just come to us from the open source community,
the Linux world, the hacker world,
and even people in mainstream America
that actually somehow,
despite the opposition of the mass media,
were able to get it, were able to understand.
The people that we handed leaflets out to
in front of movie theaters.
The people that really tried to understand
what it was all about
and realized that they weren't being told the entire story.
That to me is the success that we can celebrate
as far as getting to this stage.
And Robin, perhaps you could tell us,
I said there were other cases that will be happening.
What do you envision as far as how many cases
involving the DMCA will be on the horizon?
Well, I expect a lot.
I mean, a lot of folks like to joke around
and call the DMCA the Copyright Lawyers Full Employment Act.
So we're gonna see a lot of DMCA cases brought.
We are particularly looking for cases
that will be very sympathetic with the public,
both with the legal issues
and with the not so legal issues,
the more public relations kinds of aspects.
Because the reality is these cases are very often
won and lost in the public's minds, in the press.
And the judges, they read the newspapers
and they're not immune to the pulse
of how the country is feeling about these issues.
And so, well, take for example,
the case that we brought last summer,
regarding the Digital Millennium Copyright Act.
There was the threat that went out to Professor Felton
and his research team when they wanted to publish
the vulnerabilities of the SDMI technology,
which would control digital music use.
And these are the kind of facts
that we want to bring out,
where we've got a group of scientists,
university professors who are receiving threats
from the recording industry for researching technologies
and talking about the weaknesses of them.
And if you remember, once that lawsuit was filed,
the recording industry backed down immediately.
They issued a press statement saying,
we never meant to sue the professor.
And if we did mean, if we did threaten him,
we don't mean it now, we take it back.
He can go ahead and publish.
And the reason why the recording industry
backed down immediately was because
they knew they would lose that case.
If it actually got litigated.
And so these are the kinds of fact scenarios
that we're looking for and we'll be bringing in the future.
Let me ask you this,
if it was Professor Felton up there in court instead of me,
do you think we'd have a different outcome now?
Well, I don't know that I could say
that it would be 100% different,
but I think it would be somewhat different.
I think Hollywood did a very good job
of painting this case in the press
as being the hackers against the copyright industry.
And once you start off from that perspective,
it's sort of result-oriented judging
was how it looked to me.
Like the courts had made up their mind in advance
that you guys were the bad guys
and they just needed to figure out a legal maneuver
to get there, to reach that conclusion.
And it's frustrating for me
because I believe in the justice system
and I believe that the justice system
is supposed to be blind.
But since I've actually been working in it,
I've realized that there's the same prejudices
in the justice system as there are in other walks of life.
And we need to overcome those and recognize those
and bring the kinds of cases
that are not gonna be prejudiced against automatically
because maybe the defendant has long hair
or the wrong color skin or speaks Russian.
Those kinds of defendants are automatically
seen as guilty by courts and by the public.
And so it's tough to say
how things would have turned out differently
if you had been, I don't know,
had a little shorter hair maybe
or less computer savvy.
I wore a sports jacket, okay?
That's as far as I go.
Remember, Robin, I made him wear a tie.
And you know, it was very difficult
getting that tie on me too.
I had to have like two different people
help me put that on.
You should have used the clip-on tie.
That was the whole difference, Robin.
Robin, I believe you were chastised by the judge
for your appearance too, weren't you?
That's right.
The judge seemed far more interested
in what I was wearing each day
and how appropriate or inappropriate that was
than the actual legal issues that were being,
he was being asked to decide.
And that was something else
that I was particularly frustrated by during the trial.
And it wasn't, you know,
you weren't wearing anything that was offensive in any way.
It was perfectly okay, acceptable,
but I think he just,
he had his particular style that he wanted followed.
I think it was the color.
I think, Eric, perhaps you can correct me,
but I think color in courtrooms
seems to be looked down upon.
It's frowned upon by attorneys and judges.
Well, it depends.
Actually, the lead defense lawyer
in the Arthur Anderson case,
who was actually very successful in front of the jury,
started out the first day wearing a bright red suit.
Wow.
But then again, that's Houston, Texas,
and it's known for a rather flamboyant bar,
just generally.
But I think that your point of some clients,
just because of accents
or just because of being perceived as a hacker
and having that label applied to them
or because of dress or economic standing or what have you,
sometimes starting with a disability
in front of courts that are sworn
to deliver equal justice without regard to those things.
And it's very frustrating sometimes
when even the appearance of that happening occurs.
We're speaking with Eric Grimm,
who led us to victory in the lawsuit
that Ford filed against us, and that case is now over,
and Robin Gross of the Electronic Frontier Foundation,
who helped us with the DECSS case,
another case which is now over.
And, well, we didn't win that one,
but at least not in court we didn't win that one,
but I feel like we won in the public eye.
And certainly we brought a lot of different people together
and I think we come out stronger for that.
Our phone number is 212-209-2900.
If you'd like to ask any questions of these two people,
please give us a call.
Any other remarks from you guys?
Yeah, while we're waiting for a call,
I'd like to tee up an issue for Robin
that I'm sure she'll like to talk about,
but this is another very important copyright case
that EFF is involved in now,
and if Robin could tell us a little bit
about the Sonic Blue case.
Oh, I'd like-
That they just filed in California.
I'd be happy to.
This is the case over digital VCRs
and the individual's right to be able to use a VCR
in their home that has digital capabilities.
Sonic Blue makes and distributes replay TV devices,
very similar to TiVo.
It's the same thing as a VCR, but it's a digital VCR.
And last October, 28 of the largest entertainment
corporations sued Replay TV and Sonic Blue
for making and distributing these digital VCRs
and their claim is that they're tools of piracy.
Now, didn't the entertainment industry
already lose that 20 years ago in the Sony case?
That's what we thought too.
That's exactly what we thought when Hollywood
tried to ban the importation of VCRs back in the early 80s
and the Supreme Court ruled against them
and said, no, you can't outlaw VCRs
just because they're capable of infringement.
There's lots of non-infringing uses for this technology
and so you're gonna have to, you can't ban it essentially.
But this is a new, we're in a digital world now
and so it's a new opportunity to fight the same old battles.
In fact, the CEO of Turner Broadcasting,
a fellow by the name of Jamie Kellner,
has been going around in the media
and making claims that skipping over commercials
is copyright infringement.
He's flat out called it stealing
and when a reporter asked him, well,
what about individuals who have to go to the bathroom
during the commercials?
His quote, his response is, well,
there's a certain amount of bathroom use
that we're willing to tolerate.
You know, so I mean, this really goes to show
the arrogance of the industry
that your attention really belongs to them
and you're just supposed to sit there
and watch whatever they put in front of you.
Well, this really upset a lot of replay TV customers
and what was really the nail in the coffin
for us getting involved in this case was back in April
when the recording industry asked for and received
a discovery order from the magistrate judge
requiring replay TV to go back,
rewrite its software to monitor the viewing habits
of its customers and report that data
to the recording industry for its litigation purposes.
That really upset a lot of people,
replay TV owners and the general public.
And so replay TV objected to that.
Several groups filed amicus briefs
on the privacy issues of the replay TV customers
that would be in their privacy rights
that would be invaded and EFF signed on
to an amicus brief on that issue.
But this really outraged the customers
and we got in contact,
we received some calls and emails from several
and put together a case ourselves.
We've got five replay TV customers
who we have actually brought an affirmative challenge,
a declaratory judgment suit
where we have asked the court to now declare
that these individuals are engaging in lawful activity
when they use their digital VCRs
to record programs and skip over commercials.
And isn't that exactly what the plaintiffs,
the movie industry plaintiffs don't wanna happen
is have an actual direct fight with the people
who they're trying to label as pirates and infringers?
Exactly.
I mean, all of the cases that have been brought so far
that the recording industry has been very successful
in bringing have been brought
against the technology companies.
It's been a very effective way to step on the rights
of the people who aren't even parties to these cases,
the people who are the ones using this technology.
And we want the actual users in on this case
that the recording industry,
Hollywood is claiming that these folks
are nothing but pirates doing nothing
but engaging in infringement.
Well, let's take a look at what they're doing.
Let's see what they're doing
and let's ask the court to rule
on whether or not these activities are infringement.
But again, that's not what Hollywood wants.
They're fighting very hard
to try to keep the customers out of this case.
Well, it's a lot easier to fight.
I'd think if you have a faceless pirate there
instead of actually having somebody there
in the witness box who looks like a normal person
like you and me and has a respectable job
and uses these devices for completely legitimate reasons.
Absolutely.
I mean, one of our five plaintiffs is a parent
and he likes to be able to control
the amount of advertising
that his children are exposed to in the evenings.
And so he wants to be able to cut out
some of those commercials
and that's his right as a parent to do that.
But Hollywood's trying to say,
no, actually your child's attention belongs to us.
You're not allowed to do that.
And we feel like that is really,
it's an encroachment on society's free speech rights.
It's an encroachment upon this parent's rights.
It's just, the arrogance is overwhelming.
I think that if, we owe a debt of thanks actually
to the recording industry and to the Hollywood industry
because if they had just kept quiet
and not acted like themselves,
then they might've had a chance of convincing most people
that these laws and regulations are in their best interest.
But no, they stepped forward and said all this nonsense
and showed that their true motives are complete greed
and basically capturing the attention of everybody
at all costs.
And I think most people see that now
and they realize, this is not what I want.
This is not what I signed on for.
And I think they deserve credit
as one of the major forces in educating people,
what we've been trying to do all this time.
Their true motives, their true actions
have really shined the light on a lot of people.
We're speaking with Robin Gross and Eric Grimm
and both of you guys are going to be appearing
on a panel at H2K2, the DMCA legal update
on Saturday, July 13th.
I believe that's at 11 a.m.
And Robin and I will be on the DACSS panel,
which will be on Friday at four o'clock p.m.
And we're taking phone calls now, 212-209-2900.
So let's move over to our first listener phone call.
Good evening, you're on the air.
No, you're not, okay.
Let's go over here.
Good evening, you're on the air.
Hello?
Yes, go ahead.
Hi, how are you doing?
Good.
I have a question.
I'm hearing about this new bill
from this congressman in California,
which would allow companies to go up
to peer-to-peer networks and attack them, basically,
to prevent their copyrighted material from being downloaded.
Do you guys know anything about that?
Yes, I have heard about that.
I'm sure that Robin knows all about it, too,
although we've been deprived of the opportunity,
actually, to look at the language of what's being proposed.
So far, there's only been a press release about it,
as far as I know.
Robin, do you know any more?
No, that's exactly right.
The actual language hasn't been released.
Representative Howard Berman from Southern California
is the congressman who will be introducing this legislation.
And all he's really said is that he wants to give
copyright holders broad powers to be able
to spoof computers,
destroy individual computers' files
if they decide that...
Basically, give people, copyright holders,
the right and the ability to search through your computers
and decide whether or not you've got files on your computer
that they feel are infringing,
and the legal authority to just go ahead
and destroy them right there on the spot.
This whole thing strikes me as just utterly remarkable,
because the behavior that Howard Berman is trying to endorse
is exactly the kind of terribly antisocial
and destructive behavior
that hackers have falsely been accused of
for years and years and years.
And all of a sudden, we're saying that it's a wonderful thing
for the recording industry and the motion picture industry
to go ahead and do this on an industrial scale
to people all over the country.
Wouldn't it violate the cybercrime laws?
I mean, it seems like it would violate the law.
But what they're trying to do is create a big loophole
in the cybercrime laws, which is,
we're going to prosecute you to the fullest extent of the law
if you're anybody except a motion picture company
or a recording company,
but they get free reign to go after people
if they just have a suspicion
that unauthorized copies of music or films
happen to be on your computer.
I assume that it would extend to books and literature also,
but that remains to be seen in terms
of what actually comes out in the bill that...
I'm getting echo here all of a sudden, Emanuel.
Sorry, you might be on a Sprint phone.
Are you on a Sprint phone?
No, I'm not.
Okay, well, you sound good now.
Okay, thanks.
All right, sorry about that.
Well, this bill would be right in line
with another piece of legislation
that was passed right after last year's 9-11 tragedy,
when there was a real rush to pass security legislation
and try to beef up America's so-called security.
And the recording industry got an exemption
in the law that was being passed
that would shield them from criminal liability
if they were going to destroy
an individual's computer files wrongfully.
They had originally asked to be given a blanket exemption,
both criminal and civil.
There was a little bit of a public backlash to this,
and the way the legislation actually passed
was they got criminal exemption,
but if they actually destroy your property,
you can still go ahead and sue them civilly,
but there's not a whole lot of people
that actually have the resources
to sue the recording industry.
So it's cold comfort to most folks.
Okay, let's take another phone call.
Good evening, you're on the air.
Yes, I have a question and comment for the guests.
Make it quick.
Okay, did you ever hear of the thing
that when you go into certain restaurants,
first of all, commercials are becoming longer now,
and also in certain restaurants,
there's a little sign that says,
due to copyright regulations,
the volume on this TV cannot be turned up.
That's a good question.
I don't know why I'm coming to the phone now,
but can you answer that question?
Yeah, if you go into some business establishments,
there are rules about playing the music for the public.
If you're gonna have the music at a certain volume,
it will be considered a public performance,
and public performance royalty rates will apply,
and you will be required to pay royalties
to the recording industry, particularly ASCAP, BMI,
for publicly performing sound recordings,
and so that's the reason for that law.
Well, I know this caller called in before about this,
and one of the reasons that had been given
when someone else investigated it
was that by keeping the volume on the TV off,
it was forcing people to listen to the music
that was being piped through,
and that they had an exclusive contract
that said that they were the only type of audio
that could be heard in that establishment.
Does that make any sense?
Well, it's possible, I mean,
that this particular establishment
could have that kind of an agreement, sure.
Sure, that's entirely possible.
Some pretty wacky agreements out there.
Okay, let's take another phone call.
Good evening, you're on the air.
Yes, good evening.
I heard you say something about freedom of speech,
and I was denied my freedom of speech on this very station.
I want to play something.
Yeah, yeah, yeah.
You know, someone hung up on him 25 years ago,
and we're never going to hear the end of it.
Good evening, you're on the air.
Okay, now also, did you-
Do we have more than two listeners?
It would be nice.
Good evening, you're on the air.
Hi, I'm appreciative of hearing
the Electronic Freedom Foundation
because I've been grateful for a lot of work
that they've done.
It seems normally they have the outlook
that the free flow of information is good for everybody,
so I'm a bit dismayed to hear
that one of the arguments in the case
is that parents should be able to control
the amount of advertising their children are exposed to
because another way of saying that
is parents should be able to control
what information their children have access to.
And if you put it as keeping them
from seeing advertising, sounds fine,
but then if you talk about parents of a gay teenager,
for example, who might want their child
not to get information about homosexuality off the internet
or parents of a particular religion
want to keep information about evolution from their children,
it seems it's a pernicious legal principle,
and I wonder if you considered that
before you decided that that was one of the arguments
you wanted to make.
Well, I think that these are really
two very different situations.
I mean, we're talking about parents
who have very young children
that they want to be able to not have them always saying,
I want to buy this, I want to buy that,
buy me one of these, buy me one of those.
I think that's a reasonable thing for a parent
to want to be able to control.
And not only that, I mean, we're talking about
the messages that are coming into your own home.
And I think that a parent does have the right to control
the kind of information that enters into their own home,
whether or not once the child is a little bit older
and goes out and explores
and finds information on their own.
I mean, of course, I think it's a totally different situation
and a parent does not necessarily have the right
to be able to prevent their children
from having access to information
about ideas that they disagree with.
But it's a slippery slope
and it is very much dependent upon the age of the child
and the kinds of measures
that the parent goes to to try to control.
Some level of a control is appropriate
and some level of control is clearly inappropriate.
So it's really a slippery slope.
I couldn't agree more, Robin.
I mean, this is really an age-dependent issue.
And just like infants and toddlers
are very much dependent on their parents,
they also have to rely on their parents
in an interactive way to help guide them
in terms of getting used to their information environment
and unlimited access to commercial advertising.
Basically putting control over how our children are raised
in the hands of advertisers as opposed to parents
strikes me as deeply problematic.
That is absolutely not the same thing
as saying that parents get to micromanage
everything that a teenager gets to do.
I mean, look, you don't let your toddler go out
and run out in the streets,
but you do trust your teenager to walk to school independently.
And you don't have as much control.
It's just a natural thing in most families
for the level of independence of a child
to increase as the child gets older.
Yeah, I think it's a natural thing in most families,
but when you make a legal argument
that rests on the presumption
that parents have the right to control
what information their children have access to,
I don't know that the law is as subtle
as the examples that you're bringing up.
You said, for example, well, if it's in your home,
the parents have the right to control it.
Unfortunately, courts have ruled that children
up till the age of 18 do not have the right
to leave their home and move out
without their parents' consent.
So when you say, well, if it's in your parents' home,
they get control, then the law is saying
you have to stay in that home.
And if, for example, you're a gay teenager
and your parents don't want you to have access
to information about homosexuality
or support groups for gay teens,
then that's their right as a parent.
So you have to be really, really careful
when you look at these issues.
Right. But the legal issue
for why it's really not a legal issue,
the legal issue is copyright infringement.
The legal issue is whether or not
you have the right to skip over commercials.
And because one of the reasons
why somebody might wanna do it
is to control the amount of advertising,
doesn't necessarily mean
that that's the precedent that gets set.
The precedent that gets set is
it is not copyright infringement to skip over commercials.
That's fine, but I wonder why then you would choose that.
I wonder why you would choose that particular example,
one of the arguments you wanna make,
to show why that's important.
I wish you would choose another example.
Well, because I think it's a very good example
that shows how much control Hollywood feels it has
over the whole individual's attention
and the individual's own private life,
where that control more properly belongs
with the family and in the home.
And we can argue about what level of authority
is appropriate in the home,
but we can all agree that it is not appropriate
for it to be in Hollywood.
Okay, we're gonna have to move on.
Thanks for the question.
It was a good question there.
Thank you.
Two minutes.
Okay, that's just not a right kind of a noise
for the phone to be making.
This phone has really been annoying me all night.
Is everybody still okay?
Yes.
Okay, you there, Robin?
You got it.
All right, sorry about that.
Let's take another phone call.
Let's go over here.
Good evening, you're on the air.
Yes, a commercial's lately have been-
Do you really think you're fooling anyone with that voice?
Good evening, you're on the air.
Go ahead.
Hello, I'm wondering how he gets on so easily.
He runs a phone company, I think.
I don't know.
I suspect that.
Yeah, what's on your mind?
My question, it might be a little far-fetched
because I'm totally ignorant when it comes to computers.
Can you tell me anything about fiber optic cable?
Would that in any way infringe or affect my reception
and on my TV or interfere in any way
with the energy level or whatever fiber optic does?
Okay, well-
The reason I asked that question,
I noticed Con Edison about a week ago Friday
was doing a job on the corner of 9th Avenue
and 50th Street over here in Hell's Kitchen.
And they were putting in some fiber optic cable
beneath the street level.
Okay, we're gonna try to answer this.
I have to modify it and say
maybe it is a far-fetched question with your program.
Well, on BAI, that's not such a thing
as a far-fetched question.
So we'll try to answer your question on the radio
and Robin, Eric, is there any answer
that you might be able to fathom?
Actually, one of the technology people
that you have there in your studio
may be able to answer it better than I can.
Jim, you're making all kinds of motions here.
Well, the first thought is, yes, it is far-fetched.
But then I thought about that and said,
it's not but not for the reasons that you think.
The fiber optic transmission itself
is not going to interfere
with your electromagnetic apparatus of any sort.
But keep in mind that it has to go somewhere
after it stops being fiber optic.
It has to be converted back into copper wires
to get to your phone.
So it's possible that they screwed up
the interface in some way.
They're doing drilling, so maybe they hit a cable
for your, I don't know what's acting up,
television, I'll assume.
They hit a cable for your TV.
They're running big electrical equipment right outside.
That tends to have all sorts of resonance effects
on electromagnetic implements and appliances.
The possibilities are endless.
It's not the fiber optics per se.
It's that they're screwing around
in the street digging it up.
We could spend all night talking about this,
but we're not going to because we're out of time.
I want to thank Eric Grimm and Robin Gross
for joining us and invite everybody to join us
at the H2K2 Conference coming up on,
not this weekend coming up, but the next weekend,
starting very early on Friday
and running until very late on Sunday.
That's July 12th through 14th.
It's called H2K2.
It takes place at the Hotel Pennsylvania,
32nd Street and 7th Avenue.
More information, www.h2k2.net.
Robin, Eric, any last words from you?
I have one thing, which is that tomorrow is July the 4th,
and I would encourage everybody to read,
first, the Declaration of Independence,
and second, the Bill of Rights,
just to remind ourselves of exactly what the rights are,
the individual rights that this country is built on,
and those happen to be exactly the rights
that are under assault right now.
In Congress, in the executive of the federal government,
and in a lot of other places.
And this is a good time to remind ourselves
of what this country is all about.
Okay, Robin, quickly?
Yeah, I can't agree with that more.
It seems to me, from what I've been seeing,
the actions coming out of Congress,
and particularly the White House
and the Attorney General's offices,
these folks can't shred the Constitution fast enough.
And this war on democracy,
I find to be particularly offensive,
and it just strikes me so horribly
that we're doing it all under the guise of freedom
and under the guise of promoting democracy,
when it just seems like we are trying to colonize the world.
And so I share Eric's concern for the world right now.
Okay, well, thanks very much to both of you for joining us,
and of course, we encourage people to visit www.eff.org
and make a donation to help them fight cases
like what we've been through over the last couple of years
and keep it going.
This is Emanuel Goldstein.
For everybody else, have a good night.
We'll see you next week.
Good night.
♪ Mother was an incubator ♪
♪ Father was the contents of a test tube in the icebox ♪
♪ In the factory of birth ♪
♪ My name is 905 and I've just become alive ♪
♪ I'm the newest populator of the planet we call Earth ♪
♪ Suspended animation, my child ♪
♪ Suspended animation, my child ♪
This Thursday, July 4th,
join hundreds in a liberation demonstration
for freedom for Mumia Abu-Jamal
and against U.S. oppression worldwide.
10 a.m., Philadelphia City Hall, 15th and Market Streets.
Then march to the Liberty Bell at 5th and Market
for a freedom rally.
20 years on death row and still no justice.
That's Thursday, July 4th, 10 a.m.,
the west side of City Hall, 15th and Market Streets
in Philadelphia.
Break the chains that bind us.
From death row, this is Mumia Abu-Jamal.
For buses and information,
please call the Free Mumia Abu-Jamal Coalition
at 212-330-8029.
Let's free Mumia.