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October 2, 2005 - 11:11pm 59314

The Development Agenda is the most contentious issue WIPO has ever considered. So it's pretty surprising to hear the Chair describe a "wide majority, a significant majority" of opinion on just about anything. But that's what he said about the push to keep the agenda at the center of WIPO's work. While the vast majority of countries want to continue tackling the DA in a high-level meeting process known as the IIM, holdouts like the United States and Japan are still pushing to bury discussions in a nebulous committee that hasn't met for years. We won't know the results of this jockeying until Monday or Tuesday, but we'll report here as soon as we do.

October 4, 2005 - 11:44am 59315

A European standards body is laying the ground for a sweeping mandate that mirrors and exceeds the US Broadcast Flag proposal. The European version of the Broadcast Flag promises to ban open source, compromise user freedom, and give entertainment companies a veto over the future of digital television technology.

October 4, 2005 - 2:22pm 59316

Last week, we wrote about how a company called Memletics sought to protect its books from infringement by printing the name, address, phone, and credit card number of the people who buy the books on every 10th page.

We're pleased to report that in response to our post explaining how this form of "DRM" threatens people's privacy, the publisher has now changed his policy. He says that he's sorry he ever used this method, and will no longer be printing personal information in Memletics books. Instead, he will print a unique serial number in each book. That way, if a book winds up on a filesharing network, he can track who released it. But he won't be putting his customers at risk of identity theft if they share their books with friends or make fair use copies.

October 5, 2005 - 9:12am 59317

Imagine if the RIAA could ban critics from visiting its public website just by posting a warning linked from a webpage -- "No RIAA critics are allowed to read this website!" Suppose that it actually had the power to back up the ban with federal lawsuits, criminal penalties, and even prison time.

That's the world that a lawsuit against DirecTV threatened before a federal district court correctly dismissed the suit. But there was one problem: in dismissing the lawsuit, the court redefined a term in federal privacy law in such a way that it threatens the legitimate privacy of websites that aren't supposed to be accessed by the general public -- e.g., sites protected by password.

(Read more after the jump.)

October 6, 2005 - 10:18am 59318

It's important that in yesterday's Doe v. Cahill decision, yet another court has ruled that the Constitution requires that plaintiffs meet a standard showing they have a case before unmasking an anonymous online speaker. Indeed, the Delaware Supreme Court is the first state supreme court in the country to reach this conclusion -- a welcome affirmation of the growing trend in jurisprudence of accepting that "John Doe" subpoenas must pass Constitutional muster.

But what's even more important is how the court defines the standard. In some respects, it's laudable; in others, it could be improved. On the one hand, the standard sets a high bar that will help protect anonymous bloggers unless the plaintiff shows evidence backing up claims. On the other, it oversimplifies the analysis, and may lead some courts to overlook important First Amendment concerns.

October 7, 2005 - 1:39pm 59319

In September 2003, members of the Recording Industry Association of America (RIAA) filed the first wave of lawsuits against individual peer-to-peer (P2P) file sharers. Two years and 14,000 lawsuits later, both P2P file sharing and file-sharing litigation continue unabated, and members of the Motion Picture Association of America (MPAA) are now suing individual Internet users as well. It's time to step back and consider where this litigation has been, where it's going, and whether there is a better way forward.

EFF is co-sponsoring the First Annual P2P Litigation Summit, to be held on Thursday, November 3rd, at Northwestern University School of Law in Chicago, Illinois.

October 8, 2005 - 11:49am 59320

After months of uncertainty, supporters of reliable elections earned a huge victory on Friday when Governor Schwarzenegger signed SB 370, a bill designed to plug critical holes in the state's rules governing audits and paper trail requirements. While California led the nation by passing one of the first laws mandating the use of paper-based voting technology, the state had until Friday failed to require voting officials to actually do anything with the paper. The new law mandates that:

October 10, 2005 - 4:20am 59321

Not long ago we updated you on the MPAA and RIAA's shenanigans to smuggle the Broadcast Flag through the United States Senate. Those who paid attention during "Schoolhouse Rock" will realize that's only half of the duo's burden. To make the Flag law, they must march it past the House of Representatives, too.

Now the second shoe has dropped: 20 members of the House sent an open letter to Congressman Fred Upton, Chairman of the House Subcommittee on Telecommunications and the Internet (part of the House Committee on Energy and Commerce), and its ranking member, Edward J. Markey. All 20 pledged their allegiance to the Broadcast Flag.

October 12, 2005 - 2:41pm 59322

In the Government's response to EFF's amicus brief opposing the use of your cell phone to track your location, it supplies a new argument for the court's authority to force your wireless carrier to give this information: the All Writs Act.

The All Writs Act is a federal law that empowers federal courts to issue the writs (court orders) that are "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." It's sort of a catch-all law, allowing the court to get assistance from a third party to execute a prior order of the court, so long as the assistance required is not overly burdensome and does not violate the Constitution.

October 12, 2005 - 7:24pm 59323

Geneva - Our latest trip to the World Intellectual Property Organization (WIPO) ended last week, and we registered victories on all three of the issues that we've been following. First, the Development Agenda -- which looks at WIPO's impact on developing nations -- will continue to be a central part of the organization's work in 2006. Even as developed countries like the U.S., Japan, and most European states tried to shunt these proceedings into a committee that hadn't met for two years, developing countries from around the globe fought to keep their future on the front burner. A compromise was reached, and the Development Agenda will proceed in a provisional body specifically tasked with producing concrete recommendations for next year's General Assembly Meeting.

October 17, 2005 - 8:59am 59324

Barney the purple dinosaur is throwing another temper tantrum that his little fans would envy. And his fury is even less justified than that of a three-year-old who wants an ice cream.

Lawyers for the TV character have sent another cease and desist notice to the creator of a Barney parody site ( This is the same webpage that the same lawyer threatened back in 2002. And, just like in 2002, this Barney parody is unequivocally protected under both the First Amendment and fair use law.

October 19, 2005 - 2:01pm 59325

The story so far: the MPAA's href="">multi-million dollar travelling
salesmen had descended on Washington, pitching and wheedling to get the href="">Broadcast
Flag language, which would give Hollywood control of your digital TV and a
veto on future TV tech, into law.

In the House, the MPAA shenagled twenty representatives to support the Flag in the House Commerce Committee. But that's not a majority and support is
wobbly. Following your
letters and phone calls to members of the committee
, opposition has firmed
up and, apparently, after reading one long explanation from one expert voter,
at least one representative regrets signing the MPAA's letter.

October 20, 2005 - 1:35pm 59326

Rejoice gaming fans, for the latest new "feature" of Blizzard Entertainment's smash hit multi-player online videogame World of Warcraft is here! No, it's not a new Sword of Destruction or Staff of Power—it's spyware! Yes, unbeknownst to many gamers, World of Warcraft now has an unwanted special feature—a hidden program called "Warden" that snoops gamers' computers looking for any "unauthorized third-party program" that "enables or facilitates cheating of any type."

According to Greg Hoglund, co-author of "Exploiting Software, How to Break Code," this hidden program opens every process on a gamer's computer, from email programs to privacy managers, and sniffs email addresses, website URLs open at the time of the scan, and the names of all running programs—whether or not those programs, emails, or websites could conceivably have anything to do with hacking.

October 20, 2005 - 2:39pm 59327

Last month, we told you about the first published court decision considering when the government can track your cell phone's location. In that case, federal magistrate judge James Orenstein in New York denied the Justice Department's request to track someone's cell phone location without probable cause. EFF filed a brief in that case, urging the Court to stand by its decision despite the government's request that it reconsider.

October 21, 2005 - 6:58am 59328

It's hard not to fall in love with the idea of municipal wireless Internet access. No more trudging around with your laptop looking for hot-spots—you could just sit on a park bench, fire up your computer, and jump online. And what an easy way to erase the digital divide. People who were priced out of Internet access suddenly have a way into the world of the Web.

But if cities aren't careful, their blanket of WiFi coverage could turn oppressive. In comments submitted to the city of San Francisco this week, EFF, the ACLU, and EPIC West warned about the huge privacy implications of major muni WiFi projects. Will users be tracked from session to session, creating an archive of their online activity? Will the WiFi service provider try to commercialize the data? Will the data be protected from interception by others?

October 24, 2005 - 11:16am 59329

Professor Tim Wu has posted a great analysis of the fight between authors and Google Print. Rather than plowing the familiar fair use debate, Tim asks the right question - what will this mean for authors and the public?

Consider what it would mean, by analogy, if map-makers needed the permission of landowners to create maps. As a property owner, your point would be clear: How can you put my property on your map without my permission? Map-makers, we might say, are clearly exploiting property owners, for profit, when they publish an atlas. And as an individual property owner, you might want more control over how your property appears on a map, and whether it appears at all, as well as the right to demand payment. But the law would be stupid to give property owners that right.

October 26, 2005 - 6:27am 59330

The FCC's new tech mandate requiring Internet backdoors exceeds the FCC's authority, is arbitrary, capricious, unsupported by the evidence, and is contrary to law, and EFF and six other groups have teamed up to stop it.

The coalition has petitioned an appeals court to review the FCC ruling that would expand the Communications Assistance to Law Enforcement Act (CALEA) to broadband ISPs and VoIP providers, forcing them to build insecure backdoors into their networks. Law enforcement says it needs the backdoors because, they argue, it's just too hard for them to intercept all the communications that they need. But that kind of easy access will also endanger the privacy of innocent people, stifle innovation, and risk the Internet as a forum for free and open expression.

October 26, 2005 - 11:36am 59331

As part of the Digital Millennium Copyright Act (DMCA), Congress instructed the U.S. Copyright Office to consider every three years whether we need exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka Digital Rights Management or DRM) used to lock up copyrighted works. So if you want to make a legitimate use of a piece of media, but have been turned back by DRM and the DMCA, now is your chance to take your case to the Copyright Office and try to make the world a happier and safer place for the next three years. As two-time-successful-exemption-requester Seth Finkelstein says: "The lawsuit you prevent may be your own."

Read on for more info about the process, pitfalls and deadlines.

The Copyright Office is soliciting exemption proposals for the next three-year period, 2006-2009. Proposals must be submitted to the Copyright Office by no later than December 1, 2005.

October 26, 2005 - 3:15pm 59332

Previously, we wrote about the DOJ's attempts to justify invasive surveillance with the All Writs Act, a federal law that empowers federal courts to issue any "necessary or appropriate" court order. The government was trying to convince Federal Magistrate Judge Orenstein that he could authorize the government to track someone's location using their cell phone—without a search warrant and despite the lack of any statute allowing such surveillance.

It now looks like Orenstein, who just issued a decision reaffirming his denial of the government's request, saw the DOJ's argument for the snake oil it was:

October 27, 2005 - 8:57am 59333

Senator Patrick Leahy, the chief sponsor of the Communications Assistance for Law Enforcement Act CALEA), had a few strong words for the FCC ruling that would expand the CALEA to broadband ISPs and VoIP providers. In a statement Leahy writes "The expansion of the Communications Assistance for Law Enforcement Act (CALEA) to the Internet is troubling, and it is not what Congress intended." He goes on to warn that "...stretching this law without changing it, and without properly examining the implications of doing that, invites a basketful of potential new problems." Leahy further explains:

October 27, 2005 - 6:58pm 59334

As we've reported recently, two bold new legal decisions have exposed how the Justice Department has been getting secret court orders to track people's locations using their cell phones—without probable cause and based on interpretations of the law that the newly vigilant courts are now calling "misleading," "contrived," "unsupported," a "Hail Mary" play, and even "perverse."

October 28, 2005 - 11:49am 59335

EFF created the Legal Guide for Bloggers, in order to help bloggers understand their rights and, if necessary, defend their freedom. Forbes' recent cover story, Attack of the Blogs, illustrates the need for bloggers everywhere to be prepared to defend their rights. Attack of the Blogs' fear mongering opener is that blogs "are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective," and it goes on in the same vein.

In a sidebar to the blistering article, entitled Fighting Back, Forbes includes the following dangerous suggestion:

October 28, 2005 - 11:54am 59336

Printing presses are the prized platform of a public lynch mob spouting liberty but spewing lies, libel, and invective. Their potent allies in this pursuit include Ben Franklin and John Hancock.

Take the tea tax. Revenue was coming, providing much needed funding to help with his Majesty's benevolent aims in the colonies.

Then the pamphleteers attacked. A supposed crusading journalist launched a broadsheet long on invective and wobbly on facts, posting articles with his printing press calling your King "deceitful,""unethical,""incredibly stupid," and "a pathological liar" who had misled the colonists. The author claimed to be "Silence Dogood," a middle-aged widow who started a one-woman "watchdog" pamphlet, to expose alleged regal excess.

(Read more after the jump.)

October 31, 2005 - 8:26pm 59337

If you would like to join our jamboree

There's a simple rule that's compulsory

Mortals pay a token fee

Rest in peace; the haunting's free

- The Crypt, Disney's href="">The
Haunted Mansion

Halloween is traditionally the time when the undead walk; preposterous
monstrosities that no-one could imagine living stumble and moan through the

So guess what the entertainment industry decided to dust off for an extra
spooky session with the House Judiciary Committee on Thursday?

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