Keith Olbermann Explains It All

Deeplink by Tim Jones

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Savage v. CAIR: Another Year, Another Attempt to Misuse Copyright Law to Silence a Critic

Deeplink by Matt Zimmerman

This week, along with our co-counsel, EFF filed a motion for judgment on the pleadings asking a U.S. District Court judge to throw out a copyright infringement suit brought by talk show host Michael Savage against the Council on American-Islamic Relations. Savage sued CAIR in December, alleging that CAIR infringed the copyright in his show when it posted on its web site brief excerpts from Savage's radio program in order to criticize Savage's remarks. Savage also added a federal racketeering claim stemming from that alleged copyright infringement.

CAIR's use of the radio program excerpts is, of course, protected under the fair use doctrine. The Copyright Act specifically makes clear that third parties may utilize copyrighted works for purposes of commentary or criticism, as CAIR did in this case. This is not, however, the first time that a critic attempted to use copyright law to punish a vocal critic, and it won't be the last. EFF routinely defends online speakers faced with such abuses of copyright law. Over the last few years, EFF has defended, for example:

• "Rational Response Squad" member Brian Sapient against famed "paranormalist" Uri Geller who misused the DMCA (Digital Millenium Copyright Act) to force YouTube to pull down a critical video exposing Geller's methods.
• Two Swarthmore college students who reposted internal Diebold e-mail messages documenting problems with Diebold's voting machines and who were subsequently targeted by a DMCA takedown notice from Diebold.
• Stephanie Lenz, a mother who posted a short video of her young son dancing to a Prince song, against an abusive DMCA takedown notice sent by Universal Music, Prince's label.
• Videographer Kyle Machulis who was threatened with a DMCA takedown notice by the creator of the "Electric Slide" dance after posting a concert video that contained a ten-second segment of audience members attempting to do the dance.
• Columnist and commentator Michelle Malkin who, after criticizing hip hop artist Akon for his objectionable lyrics during a video podcast, was hit with a DMCA takedown notice of her own.

Our most analogous recent case was our representation of pseudonymous blogger "Spocko" who criticized the hosts of San Francisco-based KSFO-AM, utilizing clips from various KSFO talk shows. KSFO corporate parent ABC sent a baseless threatening letter to Spocko's ISP (1and1.com) who, unfortunately, pulled down Spocko's site before EFF stepped in and got Spocko back up and running. A year after sending a letter to ABC pointing out that Spocko's use of the clips was protected under the fair use doctrine, we're still waiting for a response.

As we pointed out last January, while radio personalities certainly have a right to air their views, the First Amendment says nothing about a right to advertiser-subsidized speech. Even if advertisers choose to pull their ads because a critic has a more convincing argument -- even if advertiser revenue dries up completely and shows are canceled -- it doesn't necessarily follow that anyone's free speech rights have being violated. Using the legal process to silence critics, instead of participating further in the oftentimes rough-and-tumble "marketplace of ideas," is the antithesis of what the First Amendment and the Copyright Act stand for. Savage, with his own daily radio program, would certainly seem able to compete in that marketplace without the aid of the legal process.

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Illegal Government Surveillance: It's Not Just For Foreigners

Deeplink by Tim Jones

Tuesday morning, Congress passed a 15 day extension to the Protect America Act. While it would have been better if Congress had called Bush's bluff on the so-called "surveillance blackout" and allowed the act to expire altogether, we are glad and relieved that they're at least taking time to consider further compromises and amendments, rather than caving and passing the draconian Intelligence Committee bill. Massive thanks to all of you who phoned your Senators over the weekend and helped make it happen.

Later in the day, Senator Feingold spoke with progressive bloggers about FISA, eloquently explaining part of what's so frightening about today's surveillance laws:

"Do you folks realize that, if you make a phone call or an email, or do what I did yesterday, receive an email from my daughter who is in England, that that is no longer private? That the government can suck up all your emails and all your phone calls, whether it be to your son or daughter in Iraq, or your child who's a junior year abroad, or a reporter over there, and there's no court oversight of it at all? It's just 'trust us,' by the adminsitration. That's what's going on in this legislation."

These simple examples are true and frightening enough, but the reality is far worse than they convey. The surveillance devices used by the NSA copy all internet traffic that passes through their fiberoptic cables, ones that carry what is known as "peered" traffic, or traffic between AT&T and other telecommunications carriers like Sprint. This is by no means limited to phone calls to England — it includes domestic private communications.

So, the government isn't only listening to phone calls with your child who's a junior year abroad — it's likely to be receiving phone calls with your child who's at their friend's house down the road. This distinction is an important part of the legal action being brought against AT&T and the other carriers, and something that's rarely conveyed by the media or understood by congresspeople.

As telecommunications expert Brian Reid says: "This isn't a wiretap. It's a countrytap."

The evidence is here on EFF.org: technical documents [PDF] brought to light by former AT&T technician Mark Klein, testimony from Brian Reid [PDF], and — if you want the full gory, nerdy details — a 370-page declaration from former FCC adviser J. Scott Marcus.

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EU Law does not require ISP to hand over customers' identity data in alleged filesharing case

Deeplink by Gwen Hinze

Can a rightsholder force an ISP to hand over a subscriber's identity in a civil copyright infringement lawsuit? In the U.S., the answer is a clear yes - as evidenced by the music industry's more than 20,000 lawsuits against alleged individual filesharers. In Spain (and perhaps other EU countries) the answer is no, at least for now.

In a much-anticipated decision, the European Court of Justice ruled yesterday that European Community law does not require EU Member States to impose an obligation on ISPs to divulge customer data in response to a request from a copyright holder who alleges that copyright infringement has taken place. The decision in Promusicae v. Telefonica involved a request made by a Spanish music rightsholder association (Promusicae) to Spain's leading ISP (Telefonica) for personal data about Telefonica subscribers using particular dynamic IP addresses, which Promusicae alleged were engaged in filesharing.

The European Court of Justice was asked to interpret a mesh of overlapping EU Community laws and answer the question: does European community law require EU Member States that are implementing this suite of EU directives to impose an obligation on ISPs to divulge their customers' personal data to rightsholders in a civil copyright lawsuit? The court ruled no, but with some qualifications. Thus, the Spanish law is valid and Telefonica will not be forced to divulge its customers' data.

More on what this means, after the jump.

[Read the entire post]

Update on Pro-IP Act: DC Roundtable on Statutory Damages

Deeplink by Fred von Lohmann

Sherwin Siy, staff attorney with Public Knowledge, has posted an insightful first-person account of a recent "roundtable" held by the U.S. Copyright Office about the increase in statutory damages proposed in Section 104 of the recently-introduced PRO-IP Act.

As we reported when the measure came out, there is precious little reason to think that copyright's statutory damages regime is too lenient (with individuals being held liable for $220,000 for sharing 24 songs, the evidence indicates the opposite). Having convened an all-day roundtable of "stakeholders," it sounds like the Copyright Office may be coming to the same conclusion:

So the RIAA wants larger litigation recoveries. But is there a real need for that? That’s the question that we’ve been asking ourselves, and it’s the question that [Copyright Office lawyer] David Carson put to the content companies that support the provision: “To proponents of this amendment: have there been any cases, since 1976, where plaintiffs have been inadequately compensated because of the operation of this rule?” And there really wasn’t much of a response. There are cases they think went the wrong way, sure, but they just didn’t have any examples of a situation where the operation of the current law resulted in an unjustly low statutory damages award.

Read Sherwin's entire account for a vivid portrait of how copyright policy gets made in Washington.

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Barracuda Networks Asks For Help in Defending Free and Open Source Patent Claim

Deeplink by Emily Berger

Barracuda Networks Inc. today announced that it plans "to defend itself, the open source community and the free and open source Clam AntiVirus software from a patent by Trend Micro."

The patent at issue in the litigation is U.S. Patent Number 5,623,600 and is directed generally to virus detection and removal apparatus for computer networks.

Basically Trend Micro's claim is that Barracuda infringed its patent by incorporating into its products the free and open source Clam AntiVirus software, which scans for viruses at the mail gateway. EFF has long worried that bogus patent claims could threaten the free and open source software community, and we'll be watching this case closely. While this claim was made against a company using the tool, if it's successful the same argument could be targeted at a university or even an individual, so it's important to pay attention at the early stages.

Barracuda has asked for help from the community in seeking prior art for the patent, much as EFF does in its Patent Busting Project. As FSF's Eben Moglen says, "[c]ollective defense from software patents is a shared responsibility for everyone in the free software ecosystem.”

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EFF Testifies Before House Committee in Support of State Secrets Privilege Reform

Deeplink by Cindy Cohn

EFF Senior Staff Attorney Kevin Bankston testified before the U.S. House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties today, using EFF's case against AT&T as an example of the misuse of the State Secrets Privilege by the Administration. The hearing was the Oversight Hearing on Reform of the State Secrets Privilege.

Bankston highlighted the fact that the Administration is attempting to use the state secrets privilege to shield itself and the telecommunications carriers from accountability for violating the rights of millions of Americans. He observed that the Administration is simultaneously claiming that no information can be presented to the court about the warrantless wiretapping without harming national security, while at the same time selectively providing information to Congress and the public when that information will further its political goals. Bankston said:

The Administration should not be allowed to share or withhold information for its own political advantage, or to avoid accountability.

Bankston also noted that the Foreign Intelligence Surveillance Act (FISA) already contained provisions allowing national security evidence to be handled within the case, in 50 U.S.C. 1806(f), and urged Congress to clarify that those procedures are appropriate in the NSA wiretapping cases.

The Committee also received a written statement from William Webster, who has served as a federal judge and as the Director of both the FBI and CIA. Judge Webster warned that the Executive Branch should not be given sole authority to determine whether evidence should be subject to the state secrets privilege. He said:

Granting executive branch officials unchecked discretion to determine whether evidence should be subject to the state secrets privilege provides too great a temptation for abuse. It makes much more sense to require the executive branch to submit such evidence to the courts for an independent assessment of whether the privilege should apply. Courts, not executive branch officials, should be entrusted to make these determinations and thereby preserve our constitutional system of checks and balances.

Also testifying were:

H. Thomas Wells, Jr.,
President-Elect of the American Bar Association

Judith Loether
Daughter of Victim in U.S. v. Reynolds

Hon. Patricia Wald
Retired Chief Judge
U.S. Court of Appeals for the D.C. Circuit

Patrick Philbin
Partner
Kirkland & Ellis

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ABA Quietly Considers Anti-Consumer Proposals to Impede Keyword Advertising

Deeplink by Corynne McSherry

When you type a word like "Chevrolet" into an Internet search engine, you aren't necessarily looking for the nearest dealership. You might be looking for independent information about Chevy's business practices, quality, compliance with emissions standards, or even information about how Chevrolets match up against their competitors. One of the best ways for competitors, critics and others to get that information to you is to place ads that use Chevrolet's trademarks as keywords, so that this information pops up when you run the search. That's why EFF has worked hard to stop efforts to use trademark law to impede keyword advertising. Through lawsuits and legislation -- like a law that was proposed in Utah -- trademark owners have tried to limit consumer access to information and block the ability of critics from using keywords to advertise their point of view, stimulate debate and mobilize support.

Now there is a quiet move in the American Bar Association's Intellectual Property Section to make the legal defense of such keyword advertising more difficult. An ABA committee is currently debating four resolutions on the issue, all of which have serious flaws, at best, and anti-consumer slants, at worst. And, some members of the committee are trying to keep this discussion from public view. The full analysis by Eric Goldman and myself shows why these efforts -- not to mention the committee's attempts to prevent public scrutiny of those efforts -- are deeply misguided and could help undermine the very purpose of trademarks: to improve consumer access to accurate information about goods and services.

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Critical Senate Vote on Surveillance Imminent

Deeplink by Tim Jones

The Senate is poised to make its most critical vote yet on illegal government surveillance this afternoon at 4:30pm ET. There are still a few hours left to phone your Senator and tell them to stand up for your rights. Our allies in DC tell us this vote really could go in either direction, so your call will make a real difference.

Meanwhile, here's a roundup of recent discussion of FISA here, on the blogs and in the media:

• Congress is considering 30-day extension of the Protect America Act to allow time to consider further amendments. But Bush has threatened to veto even this short extension. EFF hopes Congress calls his bluff — vetoing the PAA extension after claiming it's necessary to protect the homeland will put him in a difficult position. As Harry Reid says: "The president has to make a decision. He's either going to extend the law... or there will be no wiretapping."
• The Bush administration has been claiming that a decision to allow the PAA to expire this week would immediately end important government surveillance. In fact, as Cindy Cohn clarified here on DeepLinks and Harry Reid reiterated on Friday, this is pure political theater — surveillance could continue for at least a year even if no new legislation is passed.
• As Media Matters found last week, the news networks have failed to ask more than a single question about government surveillance of the presidential candidates in over a dozen debates this season. Mitt Romney received the lone question, in September of 2007. Despite this myopia from the media, Democratic candidates have finally begun to take notice, with Hillary Clinton and Barack Obama returning to DC today to vote against cloture! Statements opposing telecom immunity have been issued by the Edwards and Clinton campaigns.
• Excellent and up-to-the-minute overage continues at FireDogLake and Unclaimed Territory.

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Don't Just Tell Congress - Show Them: Your Photos and Videos Needed at StoptheSpying.org

Deeplink by Cindy Cohn

Let's show our elected representatives that We the People

-- concerned American voters from across the country
-- oppose telecom immunity and want them to stop the spying.

Visit StopTheSpying.org for details on making photos and videos to drive the point home: no immunity for lawbreaking telecoms!
http://www.stopthespying.org

The Senate has begun discussing telecom immunity and the FISA Amendments Act on the Senate floor, and by many indications a vote is imminent. After that, we'll need the House to stand strong in rejecting amnesty for telecom lawbreakers. The amnesty apologists are pushing to finish the bill by February 1.

Congress needs to hear from citizens like you!

Visit StopTheSpying.org now to speak out against telecom immunity!
http://www.stopthespying.org

For the campaign's Flickr page featuring submitted photos:
http://flickr.com/photos/stopthespying

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