URGENT ACTION ALERT: Dangerous Surveillance Amendment Sneaking Into Port Security Bill

Posted by Derek Slater

[Update, September 30: You did it! The Senate adjourned last night without passing NSA wiretapping legislation. Congress is now in recess until after the November election.]

Against strong opposition, the House last night passed Rep. Wilson's dangerous surveillance bill. The fight isn't over, though -- we can still stop these dangerous surveillance bills in the Senate before the October recess in a short 24 hours. Please keep your calls to the Senate coming.

And now some of your representatives are trying to sneak a dangerous amendment into the Port Security Bill -- the text is below the fold, and it's so bad it speaks for itself. If your representative is on the list below, call them IMMEDIATELY with the following message:

"I'm a constituent, and I urge you to not allow Section 10 of HR 5825, the 'surveillance immunity' provision, to become attached to HR 4954, the SAFE Port Act, or any other bill. I want you use all possible means to stop all bills related to the NSA wiretapping program in any form."

Senators
Susan Collins (R-ME) (202) 224-2523
Norm Coleman (R-MN) 202-224-5641
Bob Bennett (R-UT) (202) 224-5444
Joe Lieberman (D-CT) (202) 224-4041
Carl Levin (D-MI) (202) 224-6221
Ted Stevens (R-AK) (202) 224-3004
Trent Lott (R-MS) (202) 224-6253
Kay Bailey Hutchison (R-TX) 202-224-5922
Daniel Inouye (D-HI) 202-224-3934
Frank Lautenberg (D-NJ) (202) 224-3224
Chuck Grassley (R-IA) 202.224.3744
Orrin Hatch (R-UT) (202) 224-5251
Max Baucus (D-MT) (202) 224-2651
Richard Shelby (R-AL) (202) 224-5744
Paul Sarbanes (D-MD) (202) 224-4524
Patty Murray (D-WA) (202) 224-2621

Representatives
Pete King (R-NY) (202) 225-7896
Don Young (D-AK) (202) 225-5765
Dan Lungren (R-CA) (202) 225-5716
John Linder (R-GA) 202-225-4272
Rob Simmons (R-CT) (202) 225-2076
Michael McCaul (R-TX) 202-225-2401
Dave Reichert (R-WA) 202-225-7761
Bennie Thompson (D-MS) (202) 225-5876
Loretta Sanchez (D-CA) 202 225 2965
Ed Markey (D-MA) 202-225-2836
Jane Harman (D-CA) 202) 225 8220
Bill Pascrell (D-NJ) (202) 225-5751
Joe Barton (R-TX) 202 225 2002
Fred Upton (R-MI) (202) 225-3761
John Dingell (D-MI) 202 225-4071
Sherwood Boehlert (R-NY) 202 225 3665
Mike Sodrel (R-IN) 202-225-5315
Charlie Melancon (D-LA) 202.225.4031
Frank LoBiondo (R-NJ) (202) 225-6572
Bill Shuster (R-PA) 202-225-2431
Jim Oberstar (R-MN) (202) 225-6211
Bill Thomas (R-CA) (202) 225-2915
Clay Shaw (R-FL) 202-225-3026
Charles Rangel (D-NY) (202) 225-4365

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MGM v. Grokster: More Bad News for Innovators

Posted by Fred von Lohmann

The district court in the MGM v. Grokster case issued its ruling yesterday, granting summary judgment in favor of the entertainment industry plaintiffs against StreamCast Networks (the other defendants, Grokster and Sharman Networks, have settled). This comes 15 months after the Supreme Court ruling that sent the case back down for consideration of the newly-minted "inducement" theory.

EFF represented StreamCast from the beginning of the case through the Supreme Court proceedings. After the Supreme Court's ruling, we predicted that the new inducement theory would have a chilling effect on innovators. Yesterday's ruling bears out that fear.

In finding StreamCast liable for inducement, the court said:

Thus, Plaintiffs need not prove that StreamCast undertook specific actions, beyond product distribution, that caused specific acts of infringement. Instead, Plaintiffs need prove only that StreamCast distributed the product with the intent to encourage infringement.

This is a remarkably broad statement, and is at odds with the Supreme Court's view that an intent to encourage infringement must be accompanied by "clear expression or other affirmative steps" beyond the mere distribution of a product.

Here's the nightmare scenario for innovators: if you distribute a product that can be used for infringement, copyright owners sue and seek in discovery to comb through every document in your company (emails, customer support records, engineering notes, etc.) looking for anything that looks like evidence of bad intent. If the lawyers find anything (how well-trained is your level 1 customer support staff? did your engineers have copyright debates in email? how did they test the product?), they will argue that intent + distribution = inducement. Even if you never advertised or publicly encouraged infringing uses.

And don't forget, discovery is expensive. It cost SonicBlue $3 million per quarter in legal fees in the ReplayTV suit.

So yesterday's ruling is one more reason to suspect that secondary liability rules in copyright are out of balance and chilling innovation.

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WIPO Debates Direction, Priorities for 2007

Posted by Ren Bucholz

EFF is back in Geneva to report on the 2006 General Assemblies of the World Intellectual Property Organization (WIPO). This is the large annual meeting where progress is measured and paths are charted for the coming year. We're here to cover two issues in particular: the WIPO Development Agenda and the proposed broadcasting treaty. At issue are how discussions on the Development Agenda will proceed in 2007, and whether to approve a recent subcommittee recommendation to convene a diplomatic conference (what the cool kids call a "dipcon") in 2007. The goal of the treaty is to provide broadcasters with protection against those who would re-broadcast their signals without permission. The two dominant approaches to achieving this goal are 1) rights-based, creating new copyright-like rights for broadcasters over recordings and retransmissions, and 2) signal-based, creating penalties for the unauthorized interception and redistribution of a broadcast signal. The rights-based approach grants broadcasters a host of copyright-like rights even though they've done nothing "creative" as per copyright. The resulting mess would be a nightmare of overlapping, poorly defined entitlements.

The signal-based approach is gaining steam at WIPO, which warms my heart. After all, the whole point of this treaty is *supposed* to be protection against, um, signal theft! Describing the behavior you want to prohibit is a much cleaner solution than the first. EFF believes that The fact that this debate is still alive after eight years of WIPO negotiations is reason enough to postpone the proposed diplomatic conference -- the last step before formal treaty language is adopted -- until after 2007.

With countries like America, India and Venezuela lining up against the EU and Japan on the issue of a diplomatic conference, there's bound to be a compromise. Check back later for an update on what that compromise looks like, plus notes from Day 4.

On the bright side, things are looking better for the Development Agenda, which asks WIPO to consider the impact of its work on social and economic development in all WIPO member countries. For example, this means that instead of reflexively pushing for more strict patent protection in a developing country, WIPO should consider whether that would reduce access to affordable generic medication. The last DA meeting in June ended in turmoil and bitterness, with countries divided on what issues to include in future dialogue and uncertainty about how and where discussions could continue. As of today, there is unanimous support to continue dialogue on this topic, but the scope and scale of that dialogue is yet to be determined.

Notes after the jump.

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Microsoft Hunting for FairUse4WM Creator With Subpoenas

Posted by Fred von Lohmann

As has been widely reported, the DRM on files restricted by Microsoft's "PlaysForSure" DRM has been repeatedly broken by an anonymous reverse engineer known as "viodentia."

Now Microsoft has filed a lawsuit in federal court in Seattle against "John Does," in order to get the power to issue subpoenas to ISPs and email providers in order to track down the real identity of "viodentia." You can download the complaint and the motion seeking permission to issue subpoenas, courtesy of the Seattle Post-Intelligencer's Microsoft blog.

Two interesting things to note here.

First, Microsoft is arguing that they are entitled to subpoenas to unmask viodentia because they have met a "motion to dismiss" standard. That's far too relaxed a standard, as we've argued in several cases.

Courts around the nation have recognized that plaintiffs that seek to pierce the anonymity of online speakers must first offer competent evidence of viable claims, significant discovery interests and the absence of alternative means of vindicating their rights. If they can do so, courts must then assess and compare the magnitude of the harms that the requested production would cause to the competing interests. Liberal protection for the right to engage in anonymous communication -- to speak, read, listen, and/or associate anonymously -- is fundamental to a free society, and there is no reason to weaken those protections in this case.

Second, there is no DMCA circumvention claim in Microsoft's complaint. Instead, Microsoft argues that FairUse4WM must contain Microsoft source code or constitute a "derivative work" of the Microsoft code. Given the fact that "viodentia" denies this, Microsoft may be on thin copyright ice here.

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Three Senators Cave On Surveillance Bill; Tell Your Senators to Hold the Line NOW

Posted by Derek Slater

Today, three key Senators who had previously stood against Senator Specter's surveillance bill and caved to the White House's wishes regarding NSA spying legislation. Like Specter himself, these representatives agreed to a sham "compromise." The amendments do not change the simple fact that this bill remains just as dangerous as ever and in many respects is even worse.

Now more than ever, we need your help to stop the illegal spying -- take action NOW and tell your Senators to use all possible means to block this bill. The Senate recesses in six short days, and the November election is right around the corner, giving voters a chance to rebuke those who have supported the massive and illegal NSA spying program. But if you don't take action now, the election may come too late.

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Take Action Now to Stop Overreaching Trademark Claims

Posted by Corynne McSherry

As widely reported, Apple is continuing its quest to police all uses of the term "pod," whether or not any consumer could possibly imagine that Apple was sponsoring the use in question. Apple's effort to forbid "unauthorized" use of such terms as "podcast ready" is just one more example of a company losing sight of the fundamental purpose of trademarks: to improve consumer access to accurate information about goods and services. Trademarks are just shorthand terms that designate the origin or sponsorship of a product. Given the ubiquity of the term "podcast," Apple's contention that consumers will imagine that the company endorses or sponsors every use of that term is hubris at best, and a dangerous pretext for an effort to control language at worst.

Coincidentally, a bill that could assist this kind of overreaching is before Congress today. The Trademark Dilution Revision Act (TDRA, HR 683) is a big company's dream. If it passes, the lawyers policing a trademark could sue businesses and individuals for using words, images, or even colors that look vaguely like a famous brand - without even having to prove that the company is being harmed. The bill would also narrow one of the best protections speakers, consumers, and competitors have against improper efforts to control language--the defenses of fair use, news reporting and noncommercial use. Under the existing law, the exceptions apply to all trademark claims. But the bill's proposed language would open the door to new claims that classic fair uses are now infringing.

Let your representative know you oppose helping big companies use their trademarks to lock up our common language.

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URGENT: Congress Rushing NSA Spying Bills This Week -- Call your Senator Now!

Posted by Kevin Bankston

For the last two months, your phone calls and letters have helped hold back the dangerous NSA spying bills in Congress. But in the last week before the pre-election recess, the White House and several Congressional leaders are trying to sneak these bills through and effect the single greatest expansion of government surveillance ever. Take action now to stop the illegal surveillance, before it's too late.

Although the press has been aggressively reporting on (and criticizing) these bills, torture and military tribunals have recently taken center stage. Working with the White House, Congressional leaders are trying to take advantage of that fact. By attaching a spying bill to the military tribunals bill, they are trying to minimize debate and force a vote on this unprecedented hand-over of surveillance power.

We still have a very good chance of stopping the Administration's wiretapping plan in the Senate, but we need your help to do so. Visit our action center now to contact your Senators -- it's now or never.

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OneWebDay Celebration Today

Posted by Derek Slater

Today is OneWebDay, a day to "celebrate the Web and what it means to us as individuals, organizations, and communities." Founded by cyberlaw professor Susan Crawford and spearheaded by volunteers around the globe, the initiative has planned events in major cities. The goal is to get people to take a moment and reflect on the beneficial role the Web already plays in our lives -- and how important it is to take action to protect its development in the future. Visit the OneWebDay site to learn more, and check the wiki for information on in-person events.

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Keep Up The Pressure -- Senate Surveillance Bill Delayed, For Now

Posted by Derek Slater

Just as Sen. Specter's surveillance bill appeared headed for the Senate floor this week, it has once again been delayed. Nearly two months since it was first announced, the bill unfortunately passed the Senate Judiciary Committee last week. But the Washington Post reports today that Senate Majority Leader Bill Frist "referred the warrantless surveillance matter to the Senate Select Committee on Intelligence for further review and would not bring it up for Senate consideration until next week."

That's great news, but the fight is not yet over -- it's critical that you keep the pressure on Congress and make sure this bill never passes. Phone calls and letters from people like you have helped hold this bill in check. Keep them coming so that we can beat Specter's surveillance bill for good. Visit our Action Center now to find your representatives' contact information.

Update: Unfortunately, the House Judiciary Committee passed Rep. Wilson's surveillance bill today. All the more reason to tell your representatives to stop the surveillance bills.

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Disney-Owned Label To Sell Full Jesse McCartney Album in MP3

Posted by Derek Slater

Two months ago, Sony released the new Jessica Simpson single in MP3 through Yahoo! Music. This week, Variety (via PaidContent) reports that Disney-owned Hollywood Records will release Jesse McCartney's full album in MP3. It seems that some major record label execs may finally be coming to their senses:

"We're trying to be realistic," said Ken Bunt, senior VP of marketing at Hollywood Records. "Jesse's single is already online and we haven't put it out. Piracy happens regardless of what we do. So we're going to see how Jesse's album goes (as an MP3) and then decide on others going forward."

Kudos to Yahoo! for making progress on this front, even if this is just a baby step in the right direction by the major record labels. DRM won't stop or even meaningfully slow "Internet piracy." And after years of pushing for improved compatibility with DRM formats, the record labels have witnessed more, not less, balkanization of music services and devices. If the record labels really care about making sure their customers can play music on the devices of their choice, the only solution that plays-for-sure is an open, unencrypted format like MP3.

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