Extraordinarily good news from Communications Daily (behind a pay wall, unfortunately):
The Motion Picture Association of America is unlikely to push for a broadcast flag component in DTV legislation establishing a 2008 hard date because the bill's main author, House Commerce Committee Chairman Joe Barton (R-TX), is against the provision. Meanwhile, the MPAA will keep briefing House and Senate members on a broadcast flag bill's importance and seek other ways to get the content protections it wants.
Judge Marilyn Patel issued a ruling (PDF) Wednesday that settles an important question in the ongoing Napster (yes, Napster) case -- whether under the law, simply offering copyrighted material to others (say, by listing it in an index) means you're distributing it.
Apple fans who don't like digital rights managment (DRM) have been fretting about Apple's announcement Monday that it will move from the "PowerPC" to the Intel architecture. The Intel hardware platform is seen as more DRM-laden because of Intel's high-profile involvement in various DRM initiatives (something it's quite proud of). Intel has also promoted "trusted computing" projects (TCG and the LaGrande Technology) that can be used to strengthen DRM alongside traditional computer security applications. Does Apple's move mean more, or stronger, DRM in the Macintosh of the future?
CNN has a report detailing an unsavory practice euphemistically called "price customization." In short, websites examine the web data you automatically shed (cookies, IP address, etc.) so they can charge you a different price for a product or service depending on your "identity" and shopping habits.
The article cites "a retail photography Web site charging different prices for the same digital cameras and related equipment depending on whether shoppers had previously visited popular price-comparison sites" and "one [Amazon] buyer [who] deleted the electronic tags on his computer that identified him as a regular customer and noticed the price of a DVD changed from $26.24 to $22.74."
Yep -- it's good old-fashioned price discrimination, the inevitable result of an increasingly "personalized" Internet.
Feel like your democracy is a bit opaque these days? Beginning tomorrow, EFF will help shed a little light in two interconnected ways. On Thursday and Friday, June 9th and 10th, EFF will provide a series of weblog reports of a two-day lobbying effort by a coalition of activist groups fighting for transparent, auditable electronic voting.
How does one become a voting lobbyist? Enthusiastic activists from 26 states are just now finishing up three hours of training from event coordinators that included a briefing on HR 550 and similar Senate legislation, a run-down on how to conduct a successful and effective meeting with Congressional staff, media training, and more. All volunteers received a master schedule of who they have been assigned to meet with and when meetings with Congressional staff will occur. Meetings with over 80 members of Congress, designed to push for passage of the nation's best paper trail bill, now begin.
How much impact can citizen lobbyists have on the legislative process? Plenty, says Warren Stewart, Director of Legislative Issues and Policy for Vote Trust USA, who generously, breathlessly, called to share his thoughts in his three free minutes between lobbying meetings.
As expected, citizen lobbyists today encountered a range of responses, both positive and negative, to their efforts to push for the passage of HR 550. Mark Fresolone, a NJ activist, thinks that the lobbying effort is making headway but also that political maneuvering and misinformation continue to slow progress.
John Gideon, Information Manager for Voters Unite, reports back from Day 1 of the two-day HR 550 lobbying blitz with (mostly) encouraging signs. And also, a few reminders that the merits of legislation alone rarely determines the final outcome.
Staffers for Representative Jim Leach (R-IA) rebuffed efforts to attach his name to the important bill as a co-signer, citing a long-standing policy of limiting such efforts to certain legislative subject areas and bills he authored.
Congressman Holt addressing HR 550 Lobby Days attendees at Thursday's Capitol Hill reception.
Although "endorses" is a bit of an understatement: "Every member of Congress who cares about American democracy should get behind Mr. Holt's bill." The editorial reads with a familiar, almost exasperated tone, one begging the obvious question: how can there still be any disagreement about this?
Kudos to the Times for throwing down the gauntlet. Members of Congress: the ball is in your court.
Click here to tell your member of Congress to support HR 550!
Constituent lobbyists Joannie Ashbrook and Jennie Woodard report a familiar mix of responses from HR 550 House visits. Rep. Gene Green's (D-TX) staffers were very receptive and indicated that he would likely vote for the bill, despite the fact that he is also a co-sponsor of HR 278, a competing paper trail bill authored by Rep. Steve King (D-IA). Rep. Ron Paul (R-TX), on the other hand, indicates that he will not support HR 550 and will instead support Rep. King's bill, partly because he believes that the federal government should continue to exercise only limited control over elections and instead leave state and local governments with greater flexibility.
This morning, Rep. Holt was joined by Chellie Pingree (Common Cause), Joan Krawitz (VoteTrustUSA), and Pam Smith (VerifiedVoting.org), along with dozens of other election reform activists at a Capitol Hill news conference in support of HR 550. The conference was covered by major news outlets such as the Chicago Tribune, the National Journal, and ABC Radio, among others.
Representative Holt took a moment from his busy day to express his thanks to the hundreds of volunteer lobbyists and to reiterate his strong belief that his bill needs to be passed:
"These people came to Washington on their own -- on their own time, at their own expense -- not to lobby for a special interest but for democracy itself. This is a strong movement across the country, representing a deeply felt commitment to America's democratic promise.
"Anything of value should be auditable. We have been presented by the founders of this country with a self-correcting governmental system. And it works as a self- correcting system because citizens like these make the effort, make the commitment -- in some cases the sacrifice -- to see that it works, to see that we correct the errors as we find them and improve on our record over the years.
Claire Miller, an Oregon teacher who is participating in the HR 550 lobby effort, canvassed the Oregon House delegation and reports an 80% favorable response. Representatives David Wu, Earl Blumenauer, Peter DeFazio, and Darlene Hooley all indicated support for the bill and for the need for transparent, auditable voting. Representative Greg Walden has yet to commit his support to the bill, although activists have received some encouraging signs from his staff.
Click here to tell your member of Congress to support HR 550!
Like all journalists and publishers, bloggers sometimes publish information that other people don't want published. You might, for example, publish something that someone considers defamatory, republish an AP news story that's under copyright, or write a lengthy piece detailing the alleged crimes of a candidate for public office.
This week brought yet another privacy scandal for the Transportation Security Administration's (TSA) fundamentally flawed "Secure Flight" passenger surveillance program. The Department of Homeland Security's (DHS) chief privacy officer, Nuala O' Connor-Kelly, is launching an investigation to find out whether the program broke federal privacy law by hiding from the public the extent to which it has been digging through commercial databases for the private information of innocent Americans.
Secure Flight plans to force airlines and reservations services to hand over your personal travel information in order to match it against the names on secret government "watch lists" to decide whether you're allowed to fly.
Rumor is afoot that Hollywood is taking another crack at the Broadcast Flag on Capitol Hill, this time by sneaking a Flag provision into an appropriations bill before the Senate.
If what we hear is true, the provision will be introduced before a subcommittee tomorrow and before the full appropriations committee on Thursday. That gives us 48 hours to stop it.
* There has been No Debate in the Appropriations Committee over the Broadcast Flag.
We kicked off the second WIPO intergovernmental inter-sessional meeting (IIM) on the Development Agenda yesterday, and the procedural climate was hot. The heart of the matter was how -- or even whether -- to tackle the substantive reforms presented by countries like Brazil, Argentina and others in the 14-country "Friends of Development" proposal. These changes are designed to make the concerns of developing nations central to WIPO's work, but some countries (like the UK and US) have proposed punting that discussion to a committee that currently meets only every few years and previously focused exclusively on technical assistance -- one small part of the thoughtful and wide-ranging FoD proposal.
After only one year, the international student movement FreeCulture.org is already a smashing success. Founded by the Swarthmore students who fought to keep the Diebold e-voting memos online, the organization has expanded into nine chapters across the country with more to come. They've monster mashed-up the dead, tried to rescue orphans, and helped save future iPods from the Induce Act.
The story so far: ever since the courts struck down the Broadcast Flag, we've been waiting for Hollywood to seek a legislative fix.
The truth is, it's tough to pitch the Broadcast Flag to politicians.
It's not a "Think of the Children" kind of deal. It's not even a "Think of the Evil Pirates" easy sell (remember, it won't stop unauthorized copying). It's a stretch to make Broadcast Flag legislation sound like anything but what it is: "The Break Your Constituents' TV Sets Bill of 2005."
Today didn't bring us the hotly anticipated Grokster decision, but it did bring the FTC Staff Workshop Report on P2P. The workshop, in which EFF participated, considered the consumer protection and competition issues raised by P2P software. As in Grokster, some participants tried to demonize P2P as a uniquely dangerous hazard, exposing consumers inadvertently to data security risks, adware, spyware, viruses, pornography, and more.
But the FTC didn't fall for it, concluding:
After an afternooon listening to the fascinating work of the full Senate Appropriations committee in streaming audio, I can safely report that the rumored Broadcast Flag amendment was not introduced. If this was a trial balloon for future proposals, EFF and Public Knowledge supporters brought it down with a heavy barrage of ground-to-air missiles (by our last count, more than 15,000 of them, by fax and email).
It's also safe to say that over the week, senators and their staffers likely became more and more uncomfortable with embracing the Flag without debate.
Will there be other sneaky attempts to get the Flag into law? Of course. That's what lobbyists are paid to do. As a friend in Washington said, "It's that whole eternal vigilance thing, I'm afraid."
Wired reporter Ryan Singel has a must-read piece providing an update on the Transportation Security Administration's (TSA) outrageous behavior in testing the fundamentally flawed "Secure Flight" passenger-surveillance program:
Homeland Security officials who defied Congress and misled the public by creating secret files on American citizens while testing a new passenger screening program may have engaged in multiple counts of criminal conduct, and at least one employee has already lied to cover-up the misdeed.
On Monday, the Transportation Security Administration confirmed allegations that officials running the so-called Secure Flight program violated legally binding promises by secretly sharing and collecting detailed personal data on American citizens from commercial data brokers.
On June 23, new regulations from the Department of Justice went into effect, dramatically expanding the reach of a statute, 18 U.S.C. § 2257, intended to regulate the adult entertainment industry. Now it includes every blogger, online journalist, and website owner who displays any image falling under the law's broad (and vague) definition of "sexually explicit" materials.
How? The new regulations expand the definition of a so-called "secondary producer" of materials to include anyone "who inserts on a computer site or service a digital image of" sexually explicit conduct. If you're a blogger or you host a website and write an online article or personal ad with a photo that falls under that definition, that means you.
Here's a reader's guide to help you keep your eye on the ball while reading Monday's Supreme Court ruling in MGM v. Grokster.
That's what the Pakistani delegation said about the second WIPO meeting on the Development Agenda, and we couldn't agree more. Even as the discussion "officially" moved on to substantive reforms of WIPO, each proposal was met with suggestions to hand the debate over to an aimless, underfunded subcommittee. It's no surprise that the most vocal advocates for this proposal are wealthy countries like the US, UK, Canada, Australia, and most of Western Europe.
We'll have a complete wrap-up of the proceeding later today, but first we've got the 2nd day's notes after the jump.
Blogging WIPO and the Development Agenda, Round 2
The Second IIM, June 20-22: Day 2
Ren Bucholz, ren at eff.org, Electronic Frontier Foundation [RB]
Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on Technology
[NOTE: This is not an official transcript. Any errors and ommissions are regretted.]
The second meeting on the WIPO Development Agenda is now finished, and the opponents of reform have made their strategy clear: tie-up the meeting in procedural posturing to forestall substantive debate on the real issues. Even as the Friends of Development tried to discuss unassailable reforms like an ethics code for WIPO, the proceedings kept getting sidetracked by countries that wanted to cut off debate.
[We've got deeper analysis and the whole day's notes after the jump.]
The Supreme Court unanimously ruled today that creators of P2P file-sharing software could be held liable for intending to induce infringements, reversing the lower court's ruling. The Court's murky standard puts at risk technology creators of all stripes.
"Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators," said Fred von Lohmann, EFF's senior intellectual property attorney. "The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."
At the least, one could hope that the Supreme Court's decision in December to hear the Grokster case was a first step in bringing clarity to secondary copyright infringement doctrines. Instead, the Court introduced a new doctrine, the contours of which are entirely unclear. The ambiguity invites more lawsuits and will raise doubts in the minds of all innovators.
Apparently, the inducement test requires "clear expression" or "affirmative steps" to promote infringement. The Court includes communications to users and internal messages as possible evidence of wrongful purpose. But the Court says little about how explicit or on point such actions must be.
In light of the decision, some on the petitioners' side argue (once again) that the standard only targets "bad actors," not harming any legitimate businesses. However, in some ways, the decision may make it difficult for legitimate businesses to avoid inducement.
In the respondents' press conference, Grokster counsel Michael Page pointed out the perverse aspects of focusing on the P2P companies' attempting "to satisfy a known source of demand for copyright infringement." On the bright side, one could produce a tool that is used substantially for infringement but, because one did not intend to satisfy those users, one will not necessarily be liable. However, follow-on innovators who create similar products might be precluded; a court might conclude that they were attempting to satisfy that demand.
Today, during an interview on the News Hour with Jim Lehrer, lead counsel for the movie studios and record labels, Don Verrilli, accused me of "fear-mongering." While I suspect his barb may be something out of MPAA/RIAA talking points, others who I respect have suggested that the ruling in MGM v. Grokster is good news for technology companies.
Color me skeptical. As I see it, things are at least as bad as they've ever been, and maybe a bit worse.
Justice Stevens' Sony opinion discusses in some detail how patent law's "staple article of commerce" doctrine will be imported into copyright. The Grokster decision purports to import the active inducement standard from patent law, too. But it's unclear whether the Court actually has done so.
First, patent law requires a causal connection between the inducer and direct infringer. The inducement has to have actually influenced someone to commit an infringement. A court reading Grokster may be tempted to conclude, however, that a mere intent to encourage people to infringe may be enough. In particular, the Court focused on the P2P companies' decision to attract Napster users, without pointing to any evidence that Napster users actually migrated to either the Grokster or Morpheus systems.
The Court also leaves open precisely what the remedy is if one is found to have actively induced infringement.
Here, too, the relationship to patent law may be relevant. In that context, the appropriate remedy has not included forbidding distribution of the defendant's technology. Rather, the remedies have prohibited the ongoing, present misconduct found to be actively inducing infringement.
As Fred von Lohmann pointed out in the press conference today, alleged misconduct by the P2P companies took place years ago. What is there to enjoin today?
If past misconduct can be used to prove that present actions also amount to inducement, the potential harm to innovators would be substantial. Finding that an action from long ago amounts to inducement could open the door to claims about all subsequent activities.
One potential consequence of the MGM v. Grokster ruling may be an uptick in courts deciding fair use cases involving personal, noncommercial activities like "time-shifting" and "space-shifting."
A variety of new digital technologies are advertised and promoted for uses that the technology vendors believe to be fair uses. For example, Time Trax promotes its technology for recording satellite radio, Mercora for recording music from webcasts, and Sling Media for transmitting your TiVo'd TV shows to yourself over the Internet. All maintain that these personal, noncommercial, nontranformative uses of copyrighted works fall within the scope of fair use. No court, however, has ever weighed in on these (or virtually any other) personal digital fair uses.
We're sure to have more here for you on Grokster, but don't miss the excellent commentary elsewhere. Ernest Miller has a round-up here, and group discussions are still going on at SCOTUS Blog and Picker MobBlog.
Yesterday, nearly lost amid all the Grokster coverage, was an important ruling from the Second Circuit Court of Appeals in the fight to resist the effort by trademark owners to control our computers whenever we visit their websites. EFF filed a friend-of-the-court brief in this case, with the able assistance of Professor Eric Goldman of Marquette University Law School, on behalf of ad-ware vendor WhenU.
Hey, we are frustrated by ad-ware as much as you are, but that's no reason to let trademark owners take over our computers in cyberspace, any more than we should let them control where products get placed on drug-store shelves:
Imagine if "Macworld" couldn't be used to name a publication devoted to Macintosh-related products. Sounds bizarre, no?
Some don't seem to think so. EFF announced Monday that it has filed a lawsuit against French pharmaceutical giant Sanofi-Aventis Group on behalf of Medical Week News, publishers of the medical news website AcompliaReport.com. The website reports news about Acomplia, a forthcoming Sanofi-Aventis drug. Based on use of the drug's name in the website domain name, Sanofi-Aventis recently threatened Medical Week News with legal action.
In the lawsuit, filed in US District Court in San Francisco, Medical Week News asserts its fair use right to use the word "Acomplia" in publishing independent news about the forthcoming drug.
- Fair Use and Intellectual Property: Defending the Balance
- Free Speech
- Know Your Rights
- Trade Agreements and Digital Rights
- State-Sponsored Malware
- Abortion Reporting
- Analog Hole
- Anti-Counterfeiting Trade Agreement
- Bloggers' Rights
- Broadcast Flag
- Broadcasting Treaty
- Cell Tracking
- Coders' Rights Project
- Computer Fraud And Abuse Act Reform
- Content Blocking
- Copyright Trolls
- Council of Europe
- Cyber Security Legislation
- Defend Your Right to Repair!
- Defending Digital Voices
- Development Agenda
- Digital Books
- Digital Radio
- Digital Video
- DMCA Rulemaking
- Do Not Track
- E-Voting Rights
- EFF Europe
- Encrypting the Web
- Export Controls
- FAQs for Lodsys Targets
- File Sharing
- Fixing Copyright? The 2013-2015 Copyright Review Process
- Genetic Information Privacy
- Hollywood v. DVD
- How Patents Hinder Innovation (Graphic)
- International Privacy Standards
- Internet Governance Forum
- Law Enforcement Access
- Legislative Solutions for Patent Reform
- Locational Privacy
- Mandatory Data Retention
- Mandatory National IDs and Biometric Databases
- Mass Surveillance Technologies
- Medical Privacy
- National Security and Medical Information
- National Security Letters
- Net Neutrality
- No Downtime for Free Speech
- NSA Spying
- Online Behavioral Tracking
- Open Access
- Open Wireless
- Patent Busting Project
- Patent Trolls
- PATRIOT Act
- Pen Trap
- Policy Analysis
- Public Health Reporting and Hospital Discharge Data
- Reading Accessibility
- Real ID
- Search Engines
- Search Incident to Arrest
- Section 230 of the Communications Decency Act
- Social Networks
- SOPA/PIPA: Internet Blacklist Legislation
- Student and Community Organizing
- Surveillance and Human Rights
- Surveillance Drones
- Terms Of (Ab)Use
- Test Your ISP
- The "Six Strikes" Copyright Surveillance Machine
- The Global Network Initiative
- The Law and Medical Privacy
- Trans-Pacific Partnership Agreement
- Travel Screening
- Trusted Computing
- Video Games