Today, the Eleventh Circuit's issued a decision in Snow v. DirecTV and preserved the legal protections for actually private websites while protecting your right to read public websites. EFF had filed a friend-of-the-court brief supporting this ruling.
The case involved a lawsuit against DirecTV for accessing the public website of anti-DirecTV activists run by plaintiff Michael Snow. The website had a banner and purported Terms of Service forbidding DirecTV representatives from entering the site or using its message board, but it was configured such that anyone in the public could enter the site, create a profile, and use the board.
According to our DC sources, the House Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property is planning on marking up and expediting a not-yet-introduced bill entitled the Section 115 Reform Act (aka SIRA) this coming Wednesday, June 7 (UPDATE: now Thursday, June 8). Why the rush? Because otherwise someone might notice that the bill represents an unholy alliance between the major music service providers (AOL, Yahoo, Apple, Real Networks, etc.) and music publishing industry. If the bill passes, they win, but fair use loses.
After our post about and call to stop the Section 115 Reform Act, some people have pointed to the Copyright Office's preliminary report and asked us to clarify why the bill's language making incidental copies license-able is a bad thing.
As we said in our post, we have no objection to SIRA's goal: clearing the legal path for music services that offer digital music downloads and streams. The problem is that the music publishers snuck language into the bill that creates a dangerous precedent for everybody else (and the music services don't seem to care, since they got a license for their own incidental copies).
American Association of Law Libraries
Bonneville International Corp.
Computer & Communications Industry Association
Consumer Electronics Association
Consumer Project on Technology
Cox Radio, Inc.
Electronic Frontier Foundation
Entercom Communications Corp
Greater Media, Inc.
Home Recording Rights Coalition
Local Radio Internet Coalition
National Religious Broadcasters Music License Committee
Salem Communications Corp.
Sirius Satellite Radio Inc.
U.S. Public Policy Committee of the Association for Computing Machinery (USACM)
XM Satellite Radio Inc.
This is yet another example of lawyers invoking copyright as a pretext for censorship. Gawker posted the thumbnail-sized image as part of its coverage of the news that an all-night bidding war drove the price of these photos into the stratosphere, with Time Warner paying $4.1m (nabbing the rights for People magazine) for exclusive U.S. rights. It seems reasonable that the story would include a thumbnail so that people know what the fuss was about.
Yesterday, the House Subcommittee on Courts, the Internet, and Intellectual Property simultaneously introduced and approved H.R. 5553, the Section 115 Reform Act (S1RA, aka SIRA). Although the measure still contains dangerous language that threatens fair use, Representatives Boucher (D-Va.) and Lofgren (D-Ca.) both explicitly stated at the hearing that they were aware of the problems and would work to fix them before the full Judiciary Committee acts on the bill. Chairman Sensenbrenner, who runs the full committee, has also expressed a preference for a consensus draft, not one awash in the unnecessary controversy created by the dangerous language that the music publishers are trying to smuggle aboard the bill.
The second edition of Line Noise, the only* EFF podcast is online for your weekend listening pleasure. This episode, we spend a few minutes walking through the Section 115 Reform Act controversy in the company of EFF's Fred von Lohmann.
Hear today's episode in your browser or player here (MP3, Ogg), or subscribe to our RSS feeds using your podcast aggregator (MP3, Ogg). You can subscribe via the iTunes podcast directory, too. All comments, suggestions and requests for future features gratefully received.
But in the future, those super powers will become the Corruptibles, three villains that invade your home, break your devices, and stop legitimate uses. EFF has launched a new Flash animation today that features exclusive, breaking news footage from the future.
Remember, the Corruptibles aren't real, but the powers that they represent could be. Don't let the entertainment industry try this at home. Find out more about the proposed laws and write your representatives now.
What does WIPO do when it's trying to secure agreement on an important treaty, but is facing fierce resistance? It organizes a meeting outside of home base in Geneva, with "experts" and businessmen to "educate" select countries on the need for the new treaty and try to shore up support. WIPO's latest meeting on the draft Broadcasting and Webcasting Treaty, announced just this morning, will take place on June 21 in Barcelona, Spain. It features a number of the experts who have spoken at previous WIPO events, including last year's controversial non-public regional consultation meetings organized in place of the regular copyright committee meeting that is open to all accredited organizations.
Having had an initial briefing on the NSA's massive spying program, Sen. Russell Feingold today fired off a letter to Attorney General Alberto Gonzales and Director of National Intelligence John Negroponte demanding that they "provide additional information to all the members of the Judiciary Committee so that these Senators can adequately evaluate the legislative proposals regarding FISA and the government's domestic surveillance authorities that are on the Committee's agenda." He also stated, "Based on what information has been provided to me, I remain absolutely convinced that the program is illegal."
Late last night, the Government filed its reply brief, providing a last round of written briefing in advance of next week's hearing in our case against AT&T for collaborating with the Government's surveillance program. Finally the Administration has come out and flatly said what it has hinted at throughout its arguments: that the Program is above the law. The Government wrote that
the court—even if it were to find unlawfulness upon in camera, ex parte review—could not then proceed to adjudicate the very question of awarding damages because to do so would confirm Plaintiffs' allegations. (emphasis added)
"[W]hy shouldn't the price be lower [than DVDs sold in Wal-Mart]? There are no hard media, packaging or distribution costs, and iTunes markets itself, so the marketing costs should not be as high. So instead of leaping at a new business opportunity that is practically a sure thing, Hollywood is running to Congress for more protection for its old business model, like requiring the broadcast flag scheme and closing the analog hole." (links, mine)
This week, the Consumer Electronics Association (CEA) is running a great ad [PDF] in the Capitol Hill newspaper, Roll Call, reminding Congress that the entertainment oligopolies have cried wolf about new technologies many times before.
The ad collects a century-worth of fear mongering by an industry focused on legislating to protect out-dated business models, rather than adjusting to changing market opportunities:
"I forsee a marked deterioration in American music...and a host of other injuries to music in its artistic manifestations, by virtue—or rather by vice—of the multiplication of the various music-reproducing machines..."
-John Philip Sousa on the Player Piano (1906)
Our latest EFF podcast reverses the polarity of the standard media interview, as we quiz Washington journalist Drew Clark, the National Journal's tech policy expert. He gives us his impartial, frontline view of the battle for the broadcast and audio flags in Congress.
On Friday, June 23, at 9:30 a.m., a federal judge in San Francisco will hear oral arguments on the U.S. government's motion to dismiss EFF's class-action lawsuit against AT&T. Today, the court issued an order stating, "In addition to all other matters pertinent to the hearing noticed for June 23, 2006, the parties should be prepared to address the following questions" -- read them beneath the fold (order to be uploaded shortly):
1. Regardless how the court decides the government?s motion to dismiss on state secret grounds, should the court grant an interlocutory appeal of that decision pursuant to 28 USC ?1292(b)?
2. If the court denies the government?s motion to dismiss on state secret grounds and grants an interlocutory appeal, should the court stay proceedings?
Kim Zetter at Salon.com reports: "In a pivotal network operations center in metropolitan St. Louis, AT&T has maintained a secret, highly secured room since 2002 where government work is being conducted, according to two former AT&T workers once employed at the center.... The former workers say company supervisors told them that employees working inside the room were 'monitoring network traffic' and that the room was being used by 'a government agency.'"
Wendy Seltzer, former EFF staff attorney, now professor at Brooklyn Law School, debates Fritz Attaway, attorney for the MPAA, at the Wall Street Journal Online (subscription NOT required). It's a nice, concise exposition of the two sides of the DMCA controversy.
Ms. Seltzer: We're both talking about balance, but our equilibrium points are very different. You seem content if we can pay in lots of different ways to see the same movies on a constrained set of devices. I see balance in an ecosystem of big and small media and independent innovation of technologies around them. I want to see what iPod for movies and TiVo for radio look like, and not just from companies who can strike deals with the major movie studios and record labels before they start.
This week the Department of Justice issued a 100-page "progress report," [3mb PDF] measuring its activities in the intellectual property arena (copyright, trademark, patents, trade secrets) against the October 2004 Report [also a big PDF] issued by the DoJ's "IP Task Force" (this task force was headed by David Israelite, who then left DoJ to become head of the National Music Publishers Association).
This "progress report" is fascinating reading, describing the DoJ's current enforcement priorities in the intellectual property realm. Here are a few tidbits that caught my eye:
The RIAA and MPAA have been
href="http://action.eff.org/site/Advocacy?id=223">jostling to get the
broadcast flag and audio flag into the monster telecom reform bill. These are two of the bills that our recent Corruptibles animation describes -- not futuristic theories about what Hollywood could do, but actual laws being considered right now.
The flags got into Senator Ted Stevens' (R-AK) bill, which is being considered in committee tomorrow (Thursday). But Senator John Sununu (R-NH), who href="http://www.eff.org/deeplinks/archives/004343.php">peppered the MPAA and RIAA with tough questions when they spoke to the committee, has filed an amendment to get the flags thrown out. This amendment has a legitimate chance -- Democrats are angry at the anti-consumer tone of the final bill, and Republicans are chafing at the entertainment industry's yearning to over-regulate another market.
As if it wasn't convoluted enough, the 159-page Stevens telecoms reform bill -- which now includes broadcast and audio flag provisions -- got buried under an avalanche of 200 proposed amendments today. At the markup committee meeting, senators became quickly mired in discussions over a tiny fraction of these proposals. The remainder of the amendments -- including Senator Sununu's proposal to throw out the flags wholesale -- were postponed until next Tuesday.
EFF went to court today to tell a federal judge that the government should not be allowed to use the "state secrets privilege" to preempt our class-action lawsuit against AT&T. The Department of Justice argues that even if the NSA program is illegal, pursuing the case might expose "state secrets." However, in court today, EFF attorneys asked the judge to allow the case to proceed -- considering the privilege step-by-step instead of derailing the suit all together.
This week WIPO is holding the final round of talks on establishing a WIPO Development Agenda. The WIPO Development Agenda offers the possibility of creating global intellectual property laws that balance rightsholders' interests with the human rights of the world's citizens for access to medicine and knowledge. The scope of proposals on the table is truly amazing. WIPO is being asked to create ways to protect the Public Domain and to rebalance its technical assistance to developing countries. But so far, the talks have been marred by procedural stalling and little agreement on specifics. Now it's crunch time. In the next five short days, WIPO member states have to come up with concrete recommendations for the September WIPO General Assembly.
While the Senate floor was
href="http://abcnews.go.com/Politics/wireStory?id=2126247">rejecting one flag
amendment, the Senate Commerce committee was letting another two—the broadcast flag and audio flag—slip
by. Senator Sununu spoke strongly against the flags, noting that we don't need technology mandates that inject federal bureaucrats into technology design decisions, but chose ultimately to withdraw his amendments to remove the audio and broadcast flags from the larger telecom package. But he said he may
propose to remove them again when—or if—the bill reaches the Senate
The bill still has
another day of mark-up in committee, focusing on the controversial
network neutrality proposals. But they won't be revisiting the flags. So, if the committee ultimately passes a telecom reform bill, the flags will be in it.
Last week, Congress held yet another hearing about "plugging the analog hole." Why is Hollywood so bent on making all analog-to-digital technologies obey copyright holders' commands? Because in an age of DRM on digital media, the analog hole is often the last refuge for fair use and for innovators trying to build new gadgets to take your rights into the digital age.
Take the Neuros MPEG4 Recorder 2 (the "R2"), an endangered gizmo that digitizes analog video output and records it to a CF card or a memory stick in MPEG4 format. The video can then be put on your computer, burned to DVD, moved to your video iPod, or slotted right into your Sony PSP. You can also output video to a display device from the R2.
For most of day 2 of this week's meeting on the WIPO Development Agenda, we counted. We heard statements from Brazil, Chile, Uruguay, and South Africa about the importance of protecting the public domain, balancing intellectual property rights with human rights, and the very real problems facing developing countries . In between, we listened to developed countries reel off lists of the numbers of the 111 proposals that they would -- and in the case of the U.S., Japan and Mexico -- would not support.
There was no real engagement or debate on matters of substance; the developed countries have clearly decided that the real action will be at the September WIPO General Assembly. Meanwhile, Brazil on behalf of the Group of Friends of Development, continued carefully documenting how their 21 proposal document (PCDA/2/2) addresses and summarizes the proposals on the table.
CDT has issued a useful report summarizing the actions taken so far by law enforcement agencies against spyware and adware vendors. Both federal (FTC and DoJ) and state (Attorneys General) actions are discussed. (As Prof. Eric Goldman points out, there are also a variety of civil cases that have been brought around the country.)
The report is a useful reminder to Congress that we may not need more new laws to tackle the spyware problem. As we've pointed out in the past, if Congress weighs in with new laws, those laws may do more harm than good (especially once the lobbyists for adware companies get into the game).
Professor Jason Mazzone at Brooklyn Law School has just published an interesting article on "copyfraud"--the common practice of putting false copyright notices on public domain materials.
Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.
Negotiations on the WIPO Development Agenda came to a grinding halt today, after the Chair presented the Committee with a proposed recommendation for the WIPO General Assembly that raised concerns about procedural fairness and transparency. Brazil and Argentina announced that they had instructions from their governments to withdraw from the process due to unfair procedural treatment, and requested that the existing proposals be sent to the WIPO General Assembly to decide the future of the Development Agenda. The only thing that was clear by day's end is that the annual General Assembly meeting on September 25-October 3 will be very interesting indeed.
Read on for more analysis and the NGO Coalition's notes after the jump.
In a follow-up to its story last month on the NSA's illegal spying, USA Today backed off claims about BellSouth and Verizon, but confirmed its claims about AT&T, reporting that, "Five members of the intelligence committees said they were told by senior intelligence officials that AT&T participated in the NSA domestic calls program." AT&T told the paper that "The U.S. Department of Justice has stated that AT&T may neither confirm nor deny AT&T's participation in the alleged NSA program...."