EFF Tackles Bogus Podcasting Patent - And We Need Your Help

Patenting podcasting? You've got to be kidding. Yet a company called Volomedia just got the Patent Office to grant them such exclusive rights.

EFF and the law firm of Howrey, LLP aren’t willing to just sit by and watch. This patent could threaten the vibrant community of podcasters and millions of podcast listeners. We want to put a stop to it, but we need your help.

The Volomedia patent covers "a method for providing episodic media." It's a ridiculously broad patent, covering something that many folks have been doing for many years. Worse, it could create a whole new layer of ongoing costs for podcasters and their listeners. Right now, just about anyone can create their own on-demand talk radio program, earning an audience on the strength of their ideas. But more costs and hassle means that podcasting could go the way of mainstream radio -- with only the big guys able to afford an audience. And we'd have a bogus patent to blame.

In order to bust this patent, we are looking for additional "prior art" -- or evidence that the podcasting methods described in the patent were already in use before November 19, 2003. In particular, we're looking for written descriptions of methods that allow a user to download pre-programmed episodic media like audio files or video files from a remote publisher, with the download occurring after the user subscribes to the episodes, and with the user continuing to automatically receive new episodes. You can read the entire prior art request here, and if you have something that could help, please send it to podcasting_priorart@eff.org or fill out the form on our Volomedia page.

EFF's Patent-Busting Project has taken on ten of the worst free-speech and innovation crushing software patents approved by the U.S. Patent and Trademark Office. Eight of the ten have had a bite taken out of them so far, with two busted entirely, one narrowed, four reexams granted by the Patent office, and another one invalidated by the courts. We weren't looking to add to our list of the "worst of the worst," but this one was so bad we had to add it as a special bonus offender, and we can't wait to shoot it down. As Renee DuBord Brown of Howrey said, "Overbroad patents deter innovation. Congress specifically authorized the reexamination process to correct such errors, and we are looking forward to working with EFF on this reexam."

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ACLU of Northern California Launches dotRights Privacy Campaign

We're excited to share the news that our friends at the ACLU of Northern California have just launched their dotRights privacy campaign, an impressive effort to spread the word about how online services collect and share reams of personal information about internet users. The entertaining and informative dotRights introductory video summarizes the issue, covering how companies can collect data about you and share that information with data brokers and the government, and how the laws meant to protect the privacy of your internet activities are woefully outdated. The dotRights site also has more detailed content on a range of privacy issues related to webmail, search engines, social networks and more, while giving activists a variety of ways to take action on those issues.

Learn more from the ACLU of Northern California's blog post about the launch, and visit dotrights.org to check out the campaign!

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Coalition Calls for Restoration of Privacy and Civil Liberties Oversight Board

As we watch Congress wrangle with much-needed reforms to the PATRIOT Act -- particularly attempts to address the misuse of National Security Letters -- it's clear that there are important voices missing from the fray. One notable void stems from the empty Privacy and Civil Liberties Oversight Board (PCLOB). Alongside a coalition of civil liberties groups, EFF yesterday called on President Obama to prioritize the nomination of board members so that the PCLOB can contribute to ongoing debates over government surveillance, cybersecurity, and more.

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Big Win in Telecom Lobbying Documents Battle - Government to Turn Over Some Records This Week

EFF has big news in our long-running Freedom of Information Act (FOIA) battle over telecom lobbying documents: the government will finally release some additional records this week.

This case started back in 2007, as Congress debated granting immunity to the telecommunications companies that participated in illegal government electronic surveillance. News reports detailed an extensive and expensive lobbying strategy in support of the controversial immunity proposals, and EFF wanted to know more. So we used the FOIA to ask for information about the behind-the-scenes negotiations with the Department of Justice, the Office of the Director of National Intelligence, Congress, and telecom lobbyists.

As you may remember, the government has fought for months to withhold many of these documents, arguing that they were protected by a number of FOIA exemptions, including those covering agency deliberations and other privileged communications. Last month, a district court ordered the agencies to turn over additional documents, a decision that the government has been considering whether to appeal. But on Friday, the government reported to the appeals court that it has finally given up the fight over a significant portion of the records, including communications between agencies and Congress about amendments to the Foreign Intelligence Surveillance Act (FISA). We expect to receive the documents later this week, and we will post them on the website as soon as we can after that.

The government has said it will continue to try to block the release of additional information, including communications within the Executive Branch and records reflecting the identities of telcoms that lobbied for immunity. EFF will of course fight these efforts in court. In the meantime, we look forward to this week's documents release, and hope you will help us search through them for important information about the telecom lobbying campaign.

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Hey, Texas Instruments -- Stop Digging Holes

Texas Instruments (TI) ultimately failed to stand behind their misguided claim that calculator hobbyists violated copyright law by having public, online discussions about techniques to get more functionality from TI calculators. Yet the company continues to dig itself into new holes by issuing more improper take-down letters.

Several weeks ago, TI sent a barrage of letters claiming that the calculator enthusiasts' discussions about the discovery of calculator operating system signing keys -- and the keys themselves -- violated the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). TI demanded that the posts be taken down. EFF sent a letter to TI on behalf of three such bloggers, explaining why the company's legal claim was wrong, and stated that the men would restore their posts absent legitimate objection from the company. TI ignored both the letter and the deadline, and so the posts are now back online. Mr. Smith's post is here, Mr. Wilson's here, and Mr. Cross's here. You can find EFF's letter to TI here.

While it's no surprise that TI gave up when it found itself in the legal wrong, it is scandalous that the company continues to send its improper demands to other bloggers and hosting companies. In fact, TI has sent an identical take-down demand to Mr. Smith's university complaining about the same OS keys having been posted on our client's student webpage, and demanding that the school take the materials down from that URL. Today, Mr. Smith filed a DMCA Section 512 counternotice to continue the fight. Hopefully other calculator hobbyists who have received TI's baseless demands will consider standing up against the erroneous claim that reverse-engineered OS signing keys are illegal numbers that can not be published, discussed or linked to.

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Ninth Circuit Grants Stay in EFF Case Seeking Telecom Lobbying Documents

Today the Ninth Circuit postponed a court-ordered deadline for the Office of the Director of National Intelligence and the Department of Justice to turn over documents concerning a legislative push to give telecom carriers legal immunity for their participation in the government's warrantless surveillance program.

The order comes after three unsuccessful attempts by the government to delay disclosure of the documents under the Freedom of Information Act (FOIA) pending the Solicitor General's decision whether or not to appeal.

In its fourth request for a stay, the government indicated that it will appeal a couple aspects of the district court's order to release the documents, namely the court's decision that the agencies must release certain communications exchanged within the Executive Branch and the identities of representatives of telecom carriers within the documents responsive to EFF's FOIA requests.

The Solicitor General has not yet decided whether to appeal other parts of the order, including the district court's determination that the government must release communications between the agencies and members of Congress. Today's order from the Ninth Circuit gives the government until November 9 to decide.

The Ninth Circuit will consider the government's appeal on an expedited schedule, with oral argument slated for the week of January 11, 2010.

The practical effect of today's order is that important documents shedding light on the telecoms' push for retroactive immunity will not be available to the public as Congress debates whether to repeal that immunity, at least until January.

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UPDATED: Once Again, Government Moves to Delay Release of Telecom Lobbying Documents

This evening, the Director of National Intelligence and the Department of Justice filed yet another emergency motion with the Ninth Circuit, asking for a stay of the deadline to release telecom immunity lobbying documents, less than 24 hours before the documents are due to be released to the public.

Almost simultaneously, a report appeared on Politico.com, claiming that the government will be releasing some documents, while fighting in court to hide the remainder. Despite this report, the government's motion seeks to delay disclosure of all the documents, and no new documents have been released just yet.

For those following this saga, this is deja vu all over again. Last week, when the documents were due to be turned over by Friday, October 9, the government asked the Court of Appeals for a stay, a motion that was denied by the Ninth Circuit in short order. Later that same afternoon, the government asked Federal District Court Judge Jeffrey White for an additional delay, a request that Judge White ultimately denied, giving the government a new deadline of Friday, October 16, by 4 p.m. Pacific time.

This has been a long fight -- since 2007, EFF has been working towards the release of these records after media reports revealed an extensive lobbying campaign seeking immunity for telecoms that participated in the government's unlawful surveillance program. As we've said before, we look forward to receiving the documents and making them public so that they can play a much-needed role in the active congressional debate over repealing telecom immunity.

UPDATED October 16, 3:15pm: Friday morning, EFF filed opposition to the government's motion. The government then filed a reply.

3:50pm: In order to give itself more time to decide whether to grant the requested stay, the Ninth Circuit Court has extended the deadline for disclosure of documents another week, until 5pm PT on Friday October 23.

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Federal Court Denies Government Attempt to Delay Release of Telecom Records. Again.

Today a federal district court denied the government's latest emergency motion asking for a 30-day stay in last Friday's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. The new deadline is October 16, at 4 p.m. Pacific time. We sought the records pursuant to the Freedom of Information Act.

On September 24, Judge Jeffrey White had ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009. Last week, the agencies asked him to postpone his order while the government decided whether or not to appeal, which EFF opposed. Judge White denied the motion.

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Judge White also noted that, even if the government had actually appealed, "in order to obviate the need for the parties to appear once again before this Court before seeking the same redress on appeal, the Court has addressed the pertinent factors it would analyze in denying a motion to stay this action pending appeal," and found the "equities weigh in favor of denial of a stay."

In particular, the Court noted the "current administration’s pointed directive on transparency in government, and the public’s renewed interest in the question of legal immunity for the telecommunications companies that participated in the warrantless wiretapping program while considering currently pending legislation repealing the amendments to FISA, the Court finds that the public interest lies in favor of disclosure."

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UPDATE: Appeals Court Denies Government Motion to Delay Release of Telecom Lobbying Documents

Today, the 9th U.S. Circuit Court of Appeals denied the government's emergency motion asking for a 30-day stay in today's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. A district court imposed that deadline in our long running Freedom of Information Act case. The government filed another emergency motion in the district court this afternoon following the 9th Circuit decision, again asking for stay pending its decision on whether or not to appeal. You can find more background in yesterday's blog post and we'll post any more information as soon as we get it.
UPDATE: The district court held the matter over until next week, when it will decide whether a further stay is warranted.

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UPDATE: Government Files Emergency Motion to Delay Release of FOIA Documents

A couple weeks ago we told you about a victory in our long-running Freedom of Information Act (FOIA) litigation for documents detailing telecommunications carriers' lobbying efforts to get off the hook for their role in the government's warrantless electronic surveillance of millions of ordinary Americans. On September 24, a federal judge ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009.

EFF began working to force the release of the records in 2007 after media reports revealed an extensive lobbying campaign seeking immunity for telecoms that participated in the government's unlawful surveillance program. As Judge Jeffrey White noted, his decision "is consistent with" President Obama's directive on FOIA, issued on his first full day in office, which adopted a presumption in favor of disclosure and promised “a new era of open government.”

Nevertheless, after Judge White ordered disclosure of the documents, the agencies asked him to postpone his order for 60 days while the government ruminated over the pros and cons of appealing to the Ninth Circuit, which EFF opposed. The agencies also asked the court to reconsider the decision. Yesterday, Judge White denied both of the government's motions, clearing the way for the government to release the documents tomorrow, as originally ordered. So far, the government hasn't appealed, and the clock is ticking.

We look forward to receiving the documents tomorrow so that they can be part of the active congressional debate over repealing telecom immunity. Assuming the government doesn't attempt further delay tactics, we intend to post the files here as soon as we get them. Stay tuned...

UPDATE: Late Thursday, the DOJ and ODNI filed an emergency motion asking for a 30-day stay while the agencies consider an appeal. EFF opposed the motion Friday morning, and the government filed a reply around noon PT. We'll post any additional updates here as soon as they become available.

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