Computer underground Digest Fri Sept 22, 1995 Volume 7 : Issue 75 ISSN 1004-042X Editors:

---
Master Index Current Directory Index Go to SkepticTank Go to Human Rights activist Keith Henson Go to Scientology cult

Skeptic Tank!

Computer underground Digest Fri Sept 22, 1995 Volume 7 : Issue 75 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU Archivist: Brendan Kehoe Shadow Master: Stanton McCandlish Field Agent Extraordinaire: David Smith Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Cu Digest Homepage: http://www.soci.niu.edu/~cudigest CONTENTS, #7.75 (Fri, Sept 22, 1995) File 1--CuD readers may want to know... File 2--VTW BillWatch #18: new child porn bill (S1237) File 3--Ruling in RTC v. F.A.C.T.NET (Church of Sci. Loses) File 4--Cu Digest Header Info (unchanged since 19 Apr, 1995) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- From: Stanton McCandlish Subject: File 1--CuD readers may want to know--(EFF Homepage) Date: Wed, 20 Sep 1995 20:47:43 -0400 (EDT) ...that the EFF-housed CuD archive has been jazzed up a bit for WWW users. It now features a nice index page. URL: http://www.eff.org/pub/Publications/CuD/ This index should propagate to all the mirrors as well, so all of them should be browsable in style. Only the top level is currently so indexed. Will work on the subdirectories at some point. -- Stanton McCandlish


mech@eff.org

Electronic Frontier Foundation

Online Services Mgr. ------------------------------ Date: Sun, 17 Sep 1995 17:30:12 -0400 From: shabbir@PANIX.COM(Shabbir J. Safdar, Voters Telecom Watch) Subject: File 2--VTW BillWatch #18: new child porn bill (S1237) SUMMARY OF INTERNET CENSORSHIP LEGISLATION The four different pieces of legislation that address Internet regulation are still waiting for conference committee consideration. With the budget as the current Congressional priority, it isn't likely the fate of the Internet will be considered for several weeks. VTW is still collecting the signatures of businesses and bulletin boards that wish to participate in the joint letter to be sent to Congress urging parental control (instead of censorship) as a means of approaching the Internet. VTW urges you to contact your Internet service provider along with any business that use the Internet to signon to this letter. Details can be found at the http://www.vtw.org/cdaletter/ or by sending mail to vtw@vtw.org with "send cdaletter" in the subject line. _________________________________________________________ CHANGES IN US CRYPTOGRAPHY POLICY VTW has been chronicaling the government's attempts at forcing Clipper II onto the public and industry. Of course, it is still extremely unpopular. At the Sep. 6th and 7th NIST workshop, industry and public interest groups panned the plan and small working groups setup by NIST to evaluate the criteria unhappily participated, even openly revolting in some instances. On Sep 15th, NIST held another workshop to discuss the FIPS (Federal Information Processing Standard) that would embody Clipper II (also know as Commercial Key Escrow). Believe it or not, this meeting was not a repeat of the Sep 6th/7th meeting. Several attendees noticed significant differences: HEIGHTENED GOVERNMENT PRESENCE At the Sep 6th/7th workshop, dissent among industry and public representatives interfered with NIST's attempts at having a discussion about the specifics of Clipper II. Simply put, industry and the public advocates didn't like the plan. Therefore discussions of the details were fruitless. One smaller working group simply refused to work on the details and issued a statement condemning the whole Clipper II plan. The government upped the number of Federal participants at the Sep. 15th meeting in order to prevent the repeat of such an event. Several public advocates noticed a high percentage of government-provided participants in the working groups. One civil liberties advocate noted that he had never seen so many NSA individuals identifying themselves in public before. Needless to say the tactic worked. Little in the way of opposition to the plan was voiced. BURNOUT AMONG INDUSTRY AND PUBLIC REPRESENTATIVES Having been through this Kafka-esque exercise a mere two years ago with the original Clipper plan, industry and public advocates are showing signs of burnout. It's fairly clear that their concerns are not being listened to. Both the public and the industry clearly sent a message to the Clinton Administration when the original Clipper was proposed. Said F. Lynn McNulty of NIST in the New York Times Magazine (6/12/94), "We received 320 comments, only 2 of which were supportive." NIST made the Clipper Chip a government standard anyway, and it flopped in the marketplace. How many of those Clipper-phones do you see running around? The government's so-called "stupid criminals" are just falling over themselves to buy them, aren't they? NIST has stated that it has already been decided to make Clipper II a standard, before receiving any public input. Is this how democracy is supposed to work? COMMERCIAL CHEERLEADING FROM SELECT INDUSTRY INDIVIDUALS If you're wondering how the Clinton administration can get away with pushing such a disastrous proposal again, look no further than select members of the hardware and software industry. Several companies that make both security software, hardware devices and several key escrow companies are pushing Clipper II because they incorrectly believe that the government will not make it mandatory, and because they believe the industry wants key escrow. VTW believes they have it half-right: industry wants key escrow, though not on the Clinton Administration's terms. It is clear, however, that the Administration will not allow key-escrow to be a voluntary program. The EPIC (Electronic Privacy Information Center) has proved that the government has enough common sense to know that key escrow is going to be unpopular and will have to be forced on the marketplace. (See FOIA'd documents at URL:http://www.epic.org/crypto/). Never the less, several companies who want to produce hardware key escrowed devices, key escrowed software, and become escrow holders have become the champions of the Clipper II (Commercial Key Escrow) program. With their support, VTW predicts that the Clinton Administration will ratify Clipper II as a FIPS standard over the objections of industry and public. Stay tuned to BillWatch for progress on Clipper II. ______________________________________________________________ Internet Freedom and Family Empowerment Act (HR 1978, S n.a.) *** THIS BILL IS IN CONFERENCE COMMITTEE *** Description: HR 1978 is an attempt to recognize the unique medium that is online systems and avoid legislating censorship. It would: -prohibit the FCC from regulating constitutionally-protected online speech -absolve sysops and services from liability if they take good faith measures to screen their content or provide parental-screening software See directions below for obtaining analyses from various organizations. House sponsors and cosponsors: Cox (R-CA), Wyden (D-OR), Matsui (D-CA), White (R-WA), Stupak (D-MI), Rohrabacher (R-CA) House status: HR 1978 was passed 8/4/95 by the House in a vote (421-4). Where to get more info: Email: vtw@vtw.org (with "send hr1978" in the subject line) Gopher: gopher -p 1/vtw/exon gopher.panix.com WWW: http://www.panix.com/vtw/exon ___________________________________________________________ 1995 COMMUNICATIONS DECENCY ACT (CDA) (Passed Senate, HR 1004) *** THIS BILL IS IN CONFERENCE COMMITTEE *** Description: The CDA would criminalize electronic speech currently protected in print by the First Amendment. House CDA sponsors: Johnson (D-SD) House status: HR1004 will probably never leave committee. Senate status: The Senate affirmed the Communications Decency Act (84-16) as amended to the Telecommunications Reform bill (S 652). Where to get more info: WWW: http://www.panix.com/vtw/exon http://www.eff.org/ http://www.cdt.org/ http://epic.org/free_speech Gopher: gopher -p 1/vtw/exon gopher.panix.com gopher gopher.eff.org Email: vtw@vtw.org (with "send cdafaq" in the subject line) cda-status@cdt.org cda-info@cdt.org ____________________________________________________________ Child Protection, User Empowerment, and Free Expression in Interactive Media Study Act (Amendment to HR1555 in the House, S 714) *** THIS BILL IS IN CONFERENCE COMMITTEE *** Description: Would direct the Department of Justice to study whether current law is sufficient to cover enforcement of existing obscenity laws on computers networks. Senate sponsors: Leahy (D-VT) Senate status: Currently unattached to any legislation; attempted attachment to S.652 but failed (6/14/95). House sponsors: Klink (D-PA) House status: Amended to HR 1555 in committee. ______________________________________________________________ Last-minute provisions of the Manager's Mark amendment to HR1555 (added to HR1555 at the last minute) *** THIS BILL IS IN CONFERENCE COMMITTEE *** Description: Criminalizes many forms of constitutionally-protected speech when they are expressed online. House sponsors: Unknown House status: Amended to HR 1555 through the Manager's Mark on 8/4/95. ______________________________________________________________ 1995 Protection of Children from Computer Pornography Act (S 892) Description: Would make Internet Service Providers liable for shielding people under 18 from all indecent content on the Internet. Senate sponsors: Dole (R-KS), Coats (R-IN), Grassley (R-IA), McConnell (R-KY), Shelby (R-AL), Nickles (R-OK), Hatch (R-UT) Senate status: A hearing was held Monday July 24th. No action on the bill has happened yet as a result of that hearing. ___________________________________________________________ Anti-Electronic Racketeering Act of 1995 (HR n.a., S 974) Description: S 974 has many effects (not good) on law enforcement's use of intercepted communications. It would also make it unlawful for any person to publicly disseminate encoding or encrypting software including software *currently allowed* to be exported unless it contained a "universal decoding device". This more than likely means that Clipper-style key escrow systems could be disseminated, but not strong, private cryptography. Senate sponsors: Grassley (R-IA) Senate status: Currently not active and probably won't move before the August recess. Senate citizen action required: Request bill below and familiarize yourself with it. VTW is tracking this bill, and will alert you when there is movement. There is no Congressional action to take right now; as other bills (such as the Communications Decency Act) pose a greater, more immediate threat. House of Representatives status: No House version is currently enrolled. Where to get more info: Email: vtw@vtw.org (with "send s974" in the subject line) Gopher: URL:gopher://gopher.panix.com:70/11/vtw/ _________________________________________________________ Child Pornography Prevention Act of 1995 (HR n.a., S 1237) Description: S 1237 would criminalize material that depicts children engaging in sexually-explicit conduct whether or not the material was produced with children or entirely without computer. Senate sponsors: Hatch (R-UT), Abraham (R-MI), Grassley (R-IA), Thurmond (R-SC) Senate status: In the Judiciary committee, no hearing has been held yet Senate citizen action required: Read the bill below and familiarize yourself with it. VTW is tracking this bill, and will alert you when there is movement. House of Representatives status: No House version is currently enrolled. Where to get more info: Check URL:http://thomas.loc.gov and search for bill S1237. VTW will have a homepage on this bill soon. We've included both the text of the bill and Congressional debate on it below. To amend certain provisions of law relating to child pornography, and for other purposes. IN THE SENATE OF THE UNITED STATES September 13 (legislative day, September 5), 1995 Mr. Hatch (for himself, Mr. Abraham, Mr. Grassley, and Mr. Thurmond) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend certain provisions of law relating to child pornography, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Child Pornography Prevention Act of 1995'. SEC. 2. FINDINGS. Congress finds that-- (1) the use of children in the production of sexually explicit material, including photographs, films, videos, computer images, and other visual depictions, is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved; (2) child pornography permanently records the victim's abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years; (3) child pornography is often used as part of a method of seducing other children into sexual activity; a child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children `having fun' participating in such activity; (4) prohibiting the possession and viewing of child pornography encourages the possessors of such material to destroy them, thereby helping to protect the victims of child pornography and to eliminate the market for the sexually exploitative use of children; and (5) the elimination of child pornography and the protection of children from sexual exploitation provide a compelling governmental interest for prohibiting the production, distribution, possession, or viewing of child pornography. SEC. 3. DEFINITIONS. Section 2256 of title 18, United States Code, is amended-- (1) in paragraph (2)(E), by inserting before the semicolon the following: `, or the buttocks of any minor, or the breast of any female minor'; (2) in paragraph (5), by inserting before the semicolon the following: `, and data stored on computer disk or by electronic means which is capable of conversion into a visual image'; (3) in paragraph (6), by striking `and'; (4) in paragraph (7), by striking the period and inserting `; and'; and (5) by adding at the end the following new paragraph: `(8) `child pornography' means any visual depiction, including any photograph, film, video, picture, drawing, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where-- `(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; `(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; or `(C) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.'. SEC. 4. PROHIBITED ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR CONTAINING CHILD PORNOGRAPHY. (a) In General: Section 2252 of title 18, United States Code, is amended to read as follows: `Sec. 2252. Certain activities relating to material constituting or containing child pornography `(a) Any person who-- `(1) knowingly mails, transports, or ships in interstate or foreign commerce by any means, including by computer, any child pornography; `(2) knowingly receives or distributes-- `(A) any child pornography that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or `(B) any material that contains child pornography that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; `(3) knowingly reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; `(4) either-- `(A) in the maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly sells or possesses with the intent to sell any child pornography; or `(B) knowingly sells or possesses with the intent to sell any child pornography that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or `(5) either-- `(A) in the maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly possesses 3 or more books, magazines, periodicals, films, videotapes, computer disks, or any other material that contains any child pornography; or `(B) knowingly possesses 3 or more books, magazines, periodicals, films, videotapes, computer disks, or any other material that contains any child pornography that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, shall be punished as provided in subsection (b). `(b)(1) Whoever violates, or attempts or conspires to violate, paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but, if such person has a prior conviction under this chapter or chapter 109A, such person shall be fined under this title and imprisoned for not less than 5 years nor more than 15 years. `(2) Whoever violates paragraph (5) of subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both.'. (b) Technical Amendment: The table of sections for chapter 110 of title 18, United States Code, is amended by amending the item relating to section 2252 to read as follows: `2252. Certain activities relating to material constituting or containing child pornography.'. SEC. 5. PRIVACY PROTECTION ACT AMENDMENTS. Section 101 of the Privacy Protection Act of 1980 (42 U.S.C. 2000aa) is amended-- (1) in subsection (a)(1), by inserting before the semicolon at the end the following: `, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, or 2252 of title 18, United States Code'; and (2) in subsection (b)(1), by inserting before the semicolon at the end the following: `, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, or 2252 of title 18, United States Code'. SEC. 6. SEVERABILITY. If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of such to any other person or circumstance shall not be affected thereby. STATEMENTS OF INTRODUCED BILLS AND JOINT RESOLUTIONS (Senate - September 13, 1995) THE CHILD PORNOGRAPHY PREVENTION ACT OF 1995 Mr. HATCH. Mr. President, it is impossible for any decent American not to be outraged by child pornography and the sexual exploitation of children. Such material is a plague upon our people and the moral fabric of this great Nation. And, as a great Nation, I believe that we have both the constitutional right and moral obligation to protect our children from those who, motivated by profit or perversion or both, would abuse, exploit, and degrade the weakest and most vulnerable members of our society. Current Federal law dealing with child pornography reflects the overwhelming bipartisan consensus which has always existed, both in Congress and in the country, that there is no place for such filth even in a free society and that those who produce or peddle this reprehensible material must be made to feel the full weight of the law and suffer a punishment reflective of the seriousness of their offense. As with many of our criminal statutes, however, effective enforcement of our laws against child pornography today faces a new obstacle: The criminal use, or misuse, of new technology which is outside the scope of existing statutes. In order to close this computer-generated loophole and to give our law enforcement authorities the tools they need to stem the increasing flow of high-tech child pornography, I am today introducing the Child Pornography Prevention Act of 1995. The necessity for prompt legislative action amending our existing Federal child pornography statutes to cover the use of computer technology in the production of such material was vividly illustrated by a recent story in the Washington Times. This story, dated July 23, 1995, reported the conviction in Canada of a child pornographer who copied innocuous pictures of children from books and catalogs onto a computer, altered the images to remove the childrens' clothing, and then arranged the children into sexual positions. According to Canadian police, these sexual scenes involved not only adults and children, but also animals. Even more shocking than the occurrence of this type of repulsive conduct is the fact that, under current Federal law, those pictures, depicting naked children involved in sex with other children, adults, and even animals, would not be prosecutable as child pornography. That is because current Federal child pornography and sexual exploitation of children laws, United States Code title 18, sections 2251, 2251A, and 2252, cover only visual depictions of children engaging in sexually explicit conduct whose production involved the use of a minor engaging in such conduct; materials such as photographs, films, and videotapes. Today, however, visual depictions of children engaging in any imaginable forms of sexual conduct can be produced entirely by computer, without using children, thereby placing such depictions outside the scope of Federal law. Computers can also be used to alter sexually explicit photographs, films, and videos in such a way as to make it virtually impossible for prosecutors to identify individuals, or to prove that the offending material was produced using children. The problem is simple: While Federal law has failed to keep pace with technology, the purveyors of child pornography have been right on line with it. This bill will help to correct that problem. The Child Pornography Prevention Act of 1995, which includes a statement of congressional findings as to harm, both to children and adults, resulting from child pornography, has three major provisions. First, it would amend United States Code title 18, section 2256, to establish, for the first time, a specific, comprehensive, Federal statutory definition of child pornography. Under this bill, any visual depiction, such as a photograph, film, videotape or computer image, which is produced by any means, including electronically by computer, of sexually explicit conduct will be classified as child pornography if: (a) its production involved the use of a minor engaging in sexually explicit conduct; or (b) it depicts, or appears to depict, a minor engaging in sexually explicit conduct; or (c) it is promoted or advertised as depicting a minor engaging in sexually explicit conduct. _____________________________________________________________ SUBSCRIPTION AND REPRODUCTION INFORMATION *** Know of someone ANYWHERE with a fax machine but without net *** *** access that's interested in VTW's issues? Tell them to *** *** call and get on our weekly fax distribution list at *** *** (718) 596-2851 (or email us their fax number). *** To get on the distribution list for BillWatch, send mail to listproc@vtw.org with "subscribe vtw-announce Firstname Lastname" in the subject line. To unsubscribe from BillWatch (and all other VTW publications) send mail to listproc@vtw.org with "unsubscribe vtw-announce" in the subject line. Email vtw@vtw.org with "send billwatch" in the SUBJECT LINE to receive the latest version of BillWatch For permission to reproduce VTW alerts contact vtw@vtw.org ------------------------------ Date: Fri, 22 Sep 1995 15:21:41 CDT From: CuD Moderators Subject: File 3--Ruling in RTC v. F.A.C.T.NET (Church of Sci. Loses) ((MODERATORS NOTE: The following is the text of the Church of Scientiology civil action against F.A.C.TNET. The ruling is a legal blow for CoS. Links to web sites detailing what some have called a "campaign of litigation terrorism" or a "war on the Net" can be found on the CuD homepage at http://www.soci.niu.edu. Copyright © 1995 Faegre & Benson Professional Limited Liability Partnership and Internet Broadcasting Corporation, all rights reserved. http://www.faegre.com)) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 95-B-2143 RELIGIOUS TECHNOLOGY CENTER, Plaintiff, vs. F.A.C.T.NET, INC., et al., Defendants. _________________________________________________________________ REPORTER'S TRANSCRIPT RULING Proceedings before the HONORABLE JOHN L. KANE, JR., Judge, United States District Court for the District of Colorado, commencing at 4:00 p.m., on the 12th day of September, 1995, in Courtroom C-401, United States Courthouse, Denver, Colorado. _________________________________________________________________ DEBORAH A. STAFFORD, Official Reporter P.O. Box 3592 Denver, Colorado 80294 Proceedings Reported by Mechanical Stenography Transcription Produced via Computer _________________________________________________________________ APPEARANCES For the Plaintiff: EARLE C. COOLEY, ESQ. Cooley, Manion, Moore & Jones 21 Custom House Street Boston, MA 02110 TODD P. BLAKELY, ESQ. Sheridan Ross & McIntosh 1700 Lincoln Street, 3500 Denver, CO 80203 ERIC M. LIEBERMAN, ESQ. Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C. 740 Broadway at Astor Place New York, New York 10003 HELENA K. KOBRIN, ESQ. 7629 Fulton Avenue North Hollywood, CA 91605 For the Defendants: THOMAS B. KELLEY, ESQ. KENNETH LIEBMAN ESQ. NATALIE HANLON-LEH, ESQ. Faegre & Benson 2500 Republic Plaza 370 17th Street Denver, CO 80202 _________________________________________________________________ PROCEEDINGS THE COURT: I have some remarks to make, some of which may be considered preliminary. But I think that they are important for a full understanding of what this kind of procedure is. A preliminary injunction is an extraordinary remedy providing the potential for considerable harm, yet because of its emergency nature, it does not afford the Court the usual degree of careful consideration and examination of all relevant and material evidence which is afforded by the deliberative process of a so-called full-fledged trial. It is by its very nature an emergency matter, and as a consequence, the issuance of an injunction is tentative, and it's subject to later modification or for that matter even a complete rescission or vacation following trial on the merits. That is why in our legal tradition the question of whether to issue an injunction, what terms such an injunction should contain are to be approached with the utmost caution and prudence. The power to issue an injunction, like the power to hold a person in contempt of court is a power which is best used sparingly, if at all. Moreover, the very purpose of an injunction is to preserve the status quo ante. That is a rather elegant piece of Latin which means the last existing state of peaceable, non-contested conditions which preceded the pending controversy. I will not dwell on this, but I do think it's helpful to observe that our legal forefathers were not fools, and the complete phrase from the Latin is the status quo ante bellum which literally means the state of things before the war began. Given this purpose and the caution that the law prescribes, there are four basic considerations or findings which must be made before an injunction can issue. These same four factors likewise assist in determining the scope of an injunction and the conditions which would attach to it. Applying these conditions and factors to this case and reserving, as I had previously indicated, the right, if not indeed the obligation, to issue a more detailed document of a finding, finding of fact and conclusion of law, in other words, a more formal opinion at a later time, I am going to make the following ruling on the case from the bench. And if there is any ambiguity, the parties can obtain a copy of these comments from the court reporter. The first consideration is probability of success on the merits. I find the plaintiff has not established a probability of success on the merits, either in relation to the copyright or the trade secret cause of action. With regard to the copyright infringement, on the evidence before me, I find there is no probability of plaintiffs succeeding on their copyright claim because the evidence which has been presented shows that the defendants' use of the copyrighted works constitutes a fair use under Section 107 of the Copyright Act in that it is for the purposes of criticism, comment, or research, and as such is not an infringement. With regard to the trade secrets violation claim, the plaintiff has not shown by a preponderance of the evidence that the materials in issue are secret or within the definition of trade secrets under Colorado law. The evidence shows the materials are in fact in the public domain, and I am not persuaded by the evidence presented here that they entered the public domain only through unlawful means. The second consideration or factors is irreparable injury, and I find that the plaintiffs has not shown it will suffer irreparable injury of the use by defendants for the materials in issue. The evidence does not show that plaintiff will lose competitive advantage through defendants' use of the materials, nor that the defendants are using the materials for commercial purpose. In balancing the hardships to the plaintiff, I find the threatened injury of the plaintiff does not outweigh the damage the proposed injunction would cause the defendants. Whereas, the evidence has not shown the plaintiffs will suffer harm if the injunction is not issued. It shows the affect of issuing the injunction would amount to an infringement on defendants' right of fair use of copyright materials, and even more so in this case to barely prevent the functioning of the defendant F.A.C.T.NET in its entirety. With respect to the final consideration of public interest, the public interest is served best by the free exchange of speech and ideas on matters of public interest. This is indeed a matter of public interest and to issue the injunction sought would not serve that interest. Having weighed all of the factors, as I am required to do, I conclude the plaintiff has not shown a likelihood of success on the merits and the balance of harm lies in favor of the defendants. For these reasons, Plaintiff's Motion for Preliminary Injunction is denied. I order, however, as follows: That the plaintiffs shall return and restore to the defendants immediately at the plaintiff's expense all seized materials, including defendants' hard drive in the exact conditions that they were taken and from the precise places from which they were taken. I also order the defendants in this case that they must maintain -- and each defendant must maintain the status quo as to the possession of all of the copyrighted materials at issue in this case and the defendants, and each of then, are restricted to making fair use and only fair use thereof. The defendants here are specifically prohibited from making any additional copies of the materials or transferring them in any manner or publishing them other than in the context of fair use. Those are the orders of the Court. I thank counsel for the presentation, and the Court will be in recess until 9:00 a.m. MR. COOLEY: Your Honor, we'll undoubtedly be appealing this to the United States Court of Appeals for the Tenth Circuit, and we would respectfully ask a stay of the Court's order of return pending that appeal. THE COURT: No, I will not order a stay of the return of the materials. That would, in my view, cause the exact harm, which I am mot concerned with, and that is the inability of the defendants in the case to maintain their continued existence during this litigation. (Recess.) _________________________________________________________________ REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. Dated at Denver, Colorado, this 13th day of September, 1995. __________________________________ Deborah A. Stafford _________________________________________________________________ Last changed 15-September-95 Copyright © 1995 Faegre & Benson Professional Limited Liability Partnership and Internet Broadcasting Corporation, all rights reserved. ------------------------------ Date: Sun, 19 Apr 1995 22:51:01 CDT From: CuD Moderators Subject: File 4--Cu Digest Header Info (unchanged since 19 Apr, 1995) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: comp.society.cu-digest Or, to subscribe, send a one-line message: SUB CUDIGEST your name Send it to LISTSERV@VMD.CSO.UIUC.EDU The editors may be contacted by voice (815-753-0303), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. To UNSUB, send a one-line message: UNSUB CUDIGEST Send it to LISTSERV@VMD.CSO.UIUC.EDU (NOTE: The address you unsub must correspond to your From: line) Issues of CuD can also be found in the Usenet comp.society.cu-digest news group; on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of LAWSIG, and DL1 of TELECOM; on GEnie in the PF*NPC RT libraries and in the VIRUS/SECURITY library; from America Online in the PC Telecom forum under "computing newsletters;" On Delphi in the General Discussion database of the Internet SIG; on RIPCO BBS (312) 528-5020 (and via Ripco on internet); and on Rune Stone BBS (IIRGWHQ) (203) 832-8441. CuD is also available via Fidonet File Request from 1:11/70; unlisted nodes and points welcome. EUROPE: In BELGIUM: Virtual Access BBS: +32-69-844-019 (ringdown) Brussels: STRATOMIC BBS +32-2-5383119 2:291/759@fidonet.org In ITALY: ZERO! BBS: +39-11-6507540 In LUXEMBOURG: ComNet BBS: +352-466893 UNITED STATES: etext.archive.umich.edu (192.131.22.8) in /pub/CuD/ ftp.eff.org (192.88.144.4) in /pub/Publications/CuD/ aql.gatech.edu (128.61.10.53) in /pub/eff/cud/ world.std.com in /src/wuarchive/doc/EFF/Publications/CuD/ wuarchive.wustl.edu in /doc/EFF/Publications/CuD/ EUROPE: nic.funet.fi in pub/doc/cud/ (Finland) ftp.warwick.ac.uk in pub/cud/ (United Kingdom) JAPAN: ftp://www.rcac.tdi.co.jp/pub/mirror/CuD The most recent issues of CuD can be obtained from the Cu Digest WWW site at: URL: http://www.soci.niu.edu:80/~cudigest/ COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted for non-profit as long as the source is cited. Authors hold a presumptive copyright, and they should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to computer culture and communication. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ------------------------------ End of Computer Underground Digest #7.75 ************************************

---

E-Mail Fredric L. Rice / The Skeptic Tank