The [Supreme] Court's bright-line rule in Sony has been the midwife for the technological revolution of the past two decades. ...
[The petitioners] seek to move away from the bright-line safe harbor created by the Court, and relied upon by inventors and product developers for the past two decades, in favor of an amorphous test that would invite litigation and uncertainty while suppressing innovation -- all without doing anything actually to protect copyrighted materials from direct infringement. ...
Prior to this week, Texas voters were effectively locked out of the decision-making process surrounding the certification of voting technology, electronic or otherwise. In an insular process that unavoidably sheltered them from the concerns of concerned citizens, state examiners previously met in private with e-voting vendors to discuss the pros and cons of proposed systems. Predictably, without counterbalancing voices available to grill vendors on system flaws, examiners have repeatedly found little reason to refrain from recommending certification to the secretary of state. And the secretary of state, relying exclusively on examiners, has always followed their recommendations.
Forbes asks rhetorically "Is Apple The New Microsoft?" Referencing the Apple v. Does case, Forbes Senior Editor Lisa DiCarlo notes that this "potential threat to First Amendment rights and Apple's crackdown on websites that, in general, love the company and its products" as well as the failure of songs bought from iTunes to "work with music players other than its own ... To some, that might sound like its neighbor to the north."
Forbes also opined that a denial of the journalists' motion for a protective order "will have a chilling and potentially devastating effect on not only blogs, which are growing in stature and prominence, but online media in general."
The argument for MGM v. Grokster is almost upon us, and we would like to send our team off to the Supreme Court in style. We'd also like to take the chance to thank all our colleagues, friends, and supporters who have helped us immeasurably in preparing for this moment. So we're having a party!
Please join us on Thursday, March 24, at 1751 Social Club for the celebration. Doors open to the public at 8 p.m. We hope to see you there!
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Brazilian copyright scholar Pedro de Paranaguá Moniz has drafted a public letter arguing for broad reform in the World Intellectual Property Organization (WIPO) -- including putting an end to the procedural blockades the organization has erected to stop public-interest organizations from fully participating in the decisionmaking over WIPO's future.
The letter invites you to sign on so you can have your signature on the letter when it's presented to WIPO. If you support transparency, participation, balance, and access in the WIPO process, we urge you to sign on now:
We demand TRANSPARENCY within WIPO and strongly reject any kind of disproportionate representation.
While we await the Santa Clara County Court's ruling on the online journalists' motion for a protective order in Apple v. Does, the San Jose Mercury News carries the "ruling" from the Fourth Estate: "Yes, they're still journalists":
The debate is not about who gets bragging rights to ink-stained wretchdom. It is about who is shielded under an important law that allows journalists to keep their sources confidential. The law is essential to a journalist's ability to gather information while protecting whistle-blowers inside government, corporations or other organizations. Ultimately, it's essential to a free press.
A Slashdotter tells a personal story illustrating how a trade secret -- or what a company claims is a trade secret -- can be a matter of public importance:
Back in 1995 Steve Young of CNN told me "CNN protects its sources." I was on the phone with him discussing having CNN send a camera crew to interview me the next day.
I had just told him there was no way he could put me on the air. Intel was at that time reeling from the consequences from the fiasco that was the math flaw in the Pentium processor.
What I had in my possession made that math flaw look like a minor hang nail.
I had trade secret documents from Intel, legally released to me under non-disclosure agreement (since expired, so now the tale can be told).
The contents of those documents revealed flaws in Intel 486 processors that basically rendered them "Unsafe at any speed."
This week is Sunshine Week!
EFF is pleased to announce that we have submitted a paper to the International Telecommunications Union (ITU), the UN agency that advises global leaders on telecommuncations policy, as part of its survey of "Digital Rights Management" (DRM) technologies (ITU-R Working Party 6M Report on Content Protection Technologies). Our message: These technologies have been a disaster in the developed world and they are a disaster in the offing for the developing world.
The San Francisco Chronicle runs this fascinating article about Grammy award-winning singer/songwriter Fiona Apple's mythical next record, completed two years ago but shelved by her label. Here's a substantial noninfringing use of P2P networks if I've ever seen one:
"Extraordinary Machine" is an album that Apple finished over two years ago, but which was quickly shelved by the sad corporate drones over at Sony because they didn't "hear a single" and because it doesn't sound exactly like Norah Jones and because they're, well, corporate drones. They dictate cultural tastes based on relatively narrow and often deeply ignorant criteria related to marketing and money and fear of the new and the different. This is what they do.
The San Jose Mercury News gets it:
Consider the following scenario. A drug company's research determines that one of its drugs already on the market is dangerous. The company decides the research results are proprietary trade secrets and bottles them up.
It's clear that the public would be served by a conscientious insider leaking the research data to the media.
But after a ruling that could limit the public's access to vital information, insiders may now be reluctant to leak that kind of information. That's because Santa Clara County Superior Court Judge James Kleinberg said a reporter's promise of confidentiality may not be worth anything when the leak involves trade secrets.
They threaten nonprofits that use the Internet for fundraising and advocacy. That's nearly every modern nonprofit out there.
Thankfully, there's a solution in the making. A newly minted organization called the Nonprofit Innovation Alliance (NIA) has clever plan for keeping business-method patents out of the nonprofit arena. It's rounding up all the leading technology and consulting companies that help nonprofits use the Internet, then forging an alliance in which every member agrees to cross-license any current and future business-method patents on a royalty-free basis.
Over at The Chronicle of Higher Education, Fordham University history professor Doron Ben-Atar makes short work of the entertainment industry's and the US Solicitor General's arguments in MGM v. Grokster:
On the face of it, the case for harmony of interests between the studios and the nation is clear. P2P technology allows individuals and organizations to reproduce unlicensed copies for personal viewing and even commercial sale here and abroad. Every pirated version downloaded by an American college student or sold for a couple of dollars at New Delhi's Palika Bazaar, according to this logic, is a net loss of the retail price for the studios and also adds to America's growing trade imbalance.
Washington, DC, 3:26 a.m. EST
Braving briskly mild weather and motion-detector floodlights, EFF staffers have arrived on the steps of the Supreme Court, claiming the first seats in the line reserved for members of the Supreme Court bar. The public line reached capacity at approximately 10:00 p.m. on Monday night. An informal survey of line-sitters indicates (if t-shirts can be trusted) that the majority supports the preservation of the Betamax doctrine. Further updates, laptop battery life permitting.
Oral argument has just concluded before the US Supreme Court in MGM v. Grokster. Here, from the courthouse steps, is the first EFF dispatch.
The entire bench was engaged with argument from both sides. Three key points stood out:
- In at least some questions, the Court seemed concerned that movement from a clear "capability of substantial noninfringing use" standard would cloud future innovation.
- Similarly, some justices seemed
concerned that an "active inducement" standard could chill innovation, from Xerox through the iPod.
- The Court also engaged jurisdictional questions of what acts were before the Court, and how it could separate past from current conduct.
More to come...
At the oral arguments in MGM v. Grokster before the Supreme Court today, it was hard to tell which side a majority of the justices fell on. But one thing was clear: they were asking the right questions.
Over and over, the justices hammered the lawyer for the RIAA and MPAA with questions about the potential impact of a ruling in their favor against small inventors -- the "guy in the garage" as Justice David Souter put it. Justice Stephen Breyer also grilled MGM's attorney about whether lawyers who advise technologists -- for example, the inventor of the next iPod -- could give any assurance at all to their clients under MGM's rule that he would not be sued at some point down the road for copyright infringement.
The US State Department is pushing for what may be the most misguided and dangerous travel "security" plan ever proposed: putting insecure radio-frequencyidentification (RFID) chips in all new US passports. These chips would broadcast your name, date of birth, nationality, unique passport number, and any other personal information contained in the passport to anyone with a compatible RFID reader. That's right - anyone, not just passport control.
"The upshot of this is that travelers carrying around RFID passports are broadcasting their identity," observes security expert Bruce Schneier. "It means that anyone with a reader can learn that information, without the passport holder's knowledge or consent. It means that pickpockets, kidnappers, and terrorists can easily -- and surreptitiously -- pick Americans or nationals of other participating countries out of a crowd."
Two government reports confirm what EFF and other privacy advocacy organizations have long known: the Transportation Security Administration (TSA) lied about its role in using airline passengers as guinea pigs for testing "Secure Flight" - the latest version of a fundamentally flawed passenger-profiling system for screening terrorists. And not only did TSA lie, it lied repeatedly, to everyone.