Schneier on NSA Spying: "We're Giving Up Privacy Without Getting any Security in Return"

Posted by Derek Slater

In today's Star Tribune, renowned computer security expert Bruce Schneier explains in plain language why the NSA spying program is a remarkably ineffective way to identify potential threats. He hypothesizes an "unrealistically accurate system" for data mining personal information and demonstrates that it would generate billions of false alarms and millions of false leads. As many news reports have stated, the real world NSA spying program has performed predictably poorly.

Americans can and should be safe and free, and they certainly shouldn't have to trade away their privacy without any benefit. Support EFF and help stop the illegal spying.

[Permalink]

Announcing Line Noise: the EFF Podcast

Posted by Danny O'Brien

We've had many requests recently for an audio summary of EFF news. While we thought that dictating all the motions and filings, press releases, newsletters and blog postings that we file every month might make for an exciting six hour commute, audience research indicated that might be a little ... overstimulating. So instead we present Line Noise, a super-compressed, five minute audio summary of the current hot topics at EFF.

For this first podcast, we have a few words with Kurt Opsahl, the EFF attorney who successfully argued for online journalist's rights in the Apple v. Does case at the California Court of Appeal, information on the Sony BMG settlement, and what you can do to help in the AT&T case. We're still experimenting, so do let us know what and who you'd like to hear in future episodes.

You can find a Line Noise RSS feed for MP3 players here, as well as another version with Ogg Vorbis enclosures. And if you're a EFF-supporting podcaster yourself, don't forget we have a selection of public service announcements you can use in your own productions.

[Permalink]

EFF Wins Apple Appeal

Posted by Kurt Opsahl

A California state appeals court ruled in favor of the Electronic Frontier Foundation's (EFF's) petition on behalf of three online journalists today, holding that the online journalists have the same right to protect the confidentiality of their sources as offline reporters do. Here's the Court's summary:

Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple's secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners' sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.

Read the rest of the decision for more.

[Permalink]

The Battle for Your Digital Media Devices

Posted by Derek Slater

With so many tech mandate proposals and DRM restrictions being introduced, it's all too easy to miss how they fit together. A digital radio mandate here, an analog hole plug there, add in a little HDCP on video outputs for bad measure, and so on -- pretty soon, you've got DRM everywhere, and the whole is far more dangerous than the sum of its parts.

EFF is fighting DRM wherever it rears its ugly head, and our new page, The Battle for Your Digital Media Devices, introduces the major fronts. We've also launched a page about digital video, describing the alphabet soup of restrictions that Hollywood wants injected into your devices.

Check out these resources, and join the fight through our Action Center and by donating to EFF.

[Permalink]

Support EFF: New EFF v. AT&T Blog Banners!

Posted by Derek Slater

Stand up for your rights and support EFF by posting brand new EFF v. AT&T banners on your website or blog!

[Permalink]

FSF Launching Anti-DRM Campaign

Posted by Derek Slater

There is a new anti-DRM campaign being started by the Free Software Foundation, and they are organizing a launch event in Seattle for tomorrow. They are looking for supporters to join them, and ask that if you can be in the downtown Seattle area from 8:00am on Tuesday May 23, sparing an hour or so before work, that you should contact them at action@defectivebydesign.org (please include a contact phone number). Details of the launch event will be sent out before hand.

[Permalink]

Update: Court Hearing on AT&T & Illegal Spying

Posted by Jason Schultz

This morning we had the first court hearing in EFF's class-action lawsuit against AT&T. Over AT&T's objection, the court refrained from closing the courtroom and denied AT&T's bid to force us to return the AT&T documents supporting our Motion for a Preliminary Injunction. While keeping the documents under seal for the time being, the court set forth a process for redacting some of them to become available to the public.

In addition, the court set a briefing schedule to allow the case to move forward quickly. We look forward to continuing the fight against AT&T's efforts to violate the law by collaborating with the NSA's massive and illegal program to wiretap and data-mine Americans' communications.

(Photo, left to right: EFF Staff Attorney Kurt Opsahl, EFF Legal Director Cindy Cohn, and Reed R. Kathrein of our co-counsel Lerach Coughlin Stoia Geller Rudman & Robbins LLP. Taken by Quinn Norton.)

[Permalink]

Record Labels Sue XM Radio

Posted by Fred von Lohmann

As has been widely reported, the four major record labels have filed a copyright infringement suit against XM Radio, based on the recording capabilities included in certain recently-introduced XM receivers, such as the Pioneer Inno and Samsung Helix.

The complaint [200k PDF] makes it clear that the RIAA companies are gunning not just for XM, but for all innovators. Here's a summary of the claims, many of which reach well beyond the borders of established copyright jurisprudence:

• Count 1: Direct Infringement (Distribution) by "making available and automatically disseminating" sound recordings to subscribers who record them.
• Count 2: Direct Infringement (Unauthorized DPD delivery) by distributing digital phonorecord deliveries to the public.
• Count 3: Direct Infringement (Reproduction) by broadcasting to subscribers whose recorders automatically create buffer copies.
• Count 4: Direct Infringement (Reproduction) by creating ephemeral "transmitter-side" copies beyond the scope of the compulsory license provided by 17 U.S.C. 112(e), both because the ephemeral copies are used for purposes beyond solely enabling public performance and because they are not destroyed every 6 months.
• Count 5: Inducement by actively marketing and advertising the "librarying" function of Inno receivers and failing to "take readily available steps to prevent infringement."
• Count 6: Contributory Infringement by providing and activating XM receivers knowing they will be used to create infringing permanent libraries of sound recordings.
• Count 7: Vicarious Infringement by failing to prevent infringement despite having both legal and practical mechanisms whereby user infringement could be detected and prevented.
• Count 8: State Law Copyright Infringement (for Pre-1972 Works).
• Count 9: State Unfair Competition (for Pre-1972 Works).

Journalists covering the parade of copyright lawsuits arising out of new technologies (Napster, Aimster, ReplayTV, MGM v. Grokster, Elektra v. Barker, Perfect 10 v. Google, etc.) often make the mistake of examining only the facts surrounding the individual disputes, rather than recognizing that they represent a coordinated strategic effort by the entertainment industry to change the copyright law jurisprudence that applies to everyone. Court rulings, after all, continue to cast a legal shadow long after the technologies involved have disappeared (just consider the Supreme Court's 1984 Betamax ruling).

Here are a few of the larger issues touched on by this lawsuit:

• An attack on home taping: In the RIAA's view, home taping is illegal, at least when done with today's digital tools: "The XM+MP3 subscribers are creating unauthorized reproductions of Plaintiffs' copyrighted sound recordings,... and therefore are guilty of direct copyright infringement...." So much for fair use. So much for the AHRA. Sorry Pioneer, Samsung, and all the other innovators out there, but apparently home taping is only legal so long as the RIAA dictates the feature-set of the recorders.
• Forgetting the AHRA: As XM has made clear in its public statements [PDF], its new receivers have been designed to follow the rules set out in the AHRA, which was passed in 1992 in order to settle the a lawsuit brought by the music industry against Sony's then-new DAT recorders. The law expressly legalized digital audio recorders, and gave music fans the right to engage in home taping (for more on the AHRA as applied to digital radio recorders, see EFF's comments to the FCC on the "audio flag" for HD Radio). According to the RIAA's then-president, Jay Berman, the AHRA "will eliminate the legal uncertainty about home audio taping that has clouded the marketplace," and "will allow consumer electronics manufacturers to introduce new audio technology into the market without fear of infringement lawsuits." In the lawsuit against XM, however, the RIAA companies never mention the AHRA. It's as though it never happened. As though XM hadn't already paid millions in royalties to the RIAA as required by the AHRA (UPDATE: XM has not been specific about how much of the millions have gone to the transmission licenses, and how much for the AHRA device levies, both of which are required). As though music fans don't already enjoy the legal right to make digital recordings off the radio.
• Transmission + Recording = Distribution: As we've discussed previously, the RIAA has been trying to expand the scope of the "distribution" right on the backs of individual P2P file-sharing defendants in cases like Elektra v. Barker. The goal? To force broadcasters (and others who thought all they were doing was publicly performing music) to pay a second time for distribution licenses. If the RIAA wins on this score, then radio stations and webcasters are all in hot water, too.
• Inducement isn't just for pirates anymore: In the wake of the Supreme Court's ruling in MGM v. Grokster, EFF warned that the newly minted "inducement" weapon would not be reserved for "bad actors," but would also be leveled against legitimate innovators building the next generation of fair use technologies. Sure enough, the complaint accuses XM of inducement based on the following statements in promotional materials: "Hear It, Click It, Save It!," "[XM] delivers new music to you everyday and lets you choose tracks to create your own custom playlists," "record with the touch of a button," and "store up to 50 hours of XM." Not exactly a pirates "ahoy," is it?
• Holding design against innovators. The RIAA claims that XM should be held liable for both inducement and vicarious liability because it could have designed its technology differently, an argument familiar from the MGM v. Grokster battle. Of course, in that case even the Department of Justice (see fn.3) rejected the RIAA "you could have designed it differently" argument as baseless. If the RIAA succeeds this time, innovators could face liability whenever a court decides they didn't do "enough" to prevent infringement. The value of "enough," of course, will not be revealed to you until after you spend millions in legal fees and risk losing your company to ruinous statutory damages.
• Statutory damages as innovation's enemy: As I've pointed out before, a big part of the chilling effect on innovation created by copyright law stems from the thermonuclear effect that statutory damages has in cases involving recording devices. For example, the RIAA is seeking $150,000 in damages for each song recorded by any XM subscriber. The complaint further alleges that XM automatically infringes every song on every channel to which an Inno user is tuned (because the Inno records a live radio buffer, much like TiVo's 30 minute cache, and the RIAA argues that the buffer is an infringing copy). XM broadcasts 160,000 different songs each month. Assuming 20% of the songs each month are different from the last, that works out to roughly 500,000 different songs each year. Assuming Inno users are tuned in to at least half of those songs, that would mean statutory damages of $37.5 billion! This number obviously bears no relationship to the harm suffered by the recording industry (whose entire gross US revenues are less than $13 billion).

[Permalink]

Add a Senator to Your Social Network: Join the National NSA Call-In

Posted by Danny O'Brien

This week members of over twenty civil liberties groups -- including the the Bill of Rights Defense Committee, the ACLU, Patriots to Restore Checks and
Balances, EPIC and the Liberty Coalition -- are calling
Congress to demand action over the NSA's domestic surveillance program.

You can join them by visiting the BORDC's call
page. Urge your senators and representative to seek a full, public
investigation, and to refuse to rubber-stamp these illegal projects. It takes just a few minutes to let your representatives know how you feel and add to the growing chorus of complaints about this illegal action.

[Permalink]

Four Justices Question Patent Trolls and Business Methods at the Supreme Court

Posted by Jason Schultz

News hit today that the U.S. Supreme Court has reversed a lower court decision to issue an injunction against eBay for infringing a patent owned by MercExchange on the "Buy Now" feature associated with auction services. EFF filed an amicus brief [PDF] on eBay's behalf. While the decision primarily concerns itself with the proper test for injunctions, one of the concurrences previews four Justices' ideas on the controversial topics of patent trolls and business method patents.

Justice Kennedy's concurrence (joined by Justices Souter, Stevens, and Breyer) also took care to emphasize the importance of patent rights but went on to note that there are situations in which the patent system seems to be failing in its purpose:

An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. . . . For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.

When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.

In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.

With Congress in gridlock over proposed patent reform legislation and four Justices concerned about the potential threat of both patent trolls and business methods to innovation, you can expect many more petitions to the Supreme Court to address these issues.

[Permalink]