Yesterday, a federal court ruled in Elektra v. Barker that "an offer to distribute ... for the purpose of further distribution" may be enough to violate a copyright owner's distribution right. This ruling opens the door open for civil attempt liability when it comes to distribution -- in other words, that having a song in a shared folder without authorization might be infringing, even if no one ever downloads it from you.
What Could It Mean for Warrantless Domestic Surveillance?
Update: Click here to read the AP article on the Yoo memo and the Fourth Amendment.
Today's Washington Post reports on a newly released memo, "Memorandum for William J. Haynes II, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" (March 14, 2003) , which which was declassified and released publicly yesterday. Balkinization has commentary on the very troubling opinion.
We've written previously about the showdown between the states and the Department of Homeland Security (DHS) over Real ID -- a federal mandate that seeks to turn states' driver's licenses into national identity cards. Several states have rightfully vowed to oppose Real ID because it's expensive and a massive violation of privacy for their citizens.
Earlier this year, the Department of Homeland Security gave the states an ultimatum: If you aren't going to implement Real ID by May 2008, file for an extension by March 31, 2008. If you don't file for an extension, you risk having your states' ID's rejected when your citizens try to get on planes or enter federal buildings in May.
Same day, two federal courts, two different rulings on "making available."
As we mentioned yesterday, a New York court in Elektra v. Barker gave a boost to the recording industry by ruling that an offer to distribute a file on a P2P network can infringe the distribution right, even if no one ever actually downloaded it from you. Well, on the same day, a Massachusetts court in London-Sire v. Doe ruled just the opposite, holding that "merely exposing music files to the internet is not copyright infringement" (we just received the ruling today).
- Chaos Computer Club Publishes German Official's Fingerprint
Snatched from a glass left after a talk, Interior Minister Wolfgang Schauble's fingerprint is now (irrevocably) the biometric of choice for German pranksters...
- A Technical Guide to Phorm
The Foundation for Information Policy Research's Richard Clayton analyses exactly how Phorm works -- including fake cookies for every website you visit, and fake HTTP redirects every time you visit a new site.
- UK ISPs Against "Allegation-Based Enforcement"
Last time we wrote about the EU's Bono Report on the Cultural Industries, it was
of a rightsholders' hijack. Lobbying groups like href="http://www.eff.org/files/filenode/effeurope/ifpi_filtering_memo.pdf">IFPI
were encouraging amendments that would give a European Union stamp of approval to ISP
filtering content, blocking sites and cutting off Net users at the demand of
the entertainment industry.
Now the tables have turned - and the same report has become a strong demonstration of the
deep discontent in the heart of Brussels with how far the entertainment industry wants
to impose its policies on the European Internet.
In re Bilski is an appellate court case that provides an opportunity to eliminate business method patents and curtail efforts to claim monopolies on basic human skills, behaviors, and interactions. Bilski is challenging the rejection of his application for a patent on a method of managing the risk of bad weather through commodities trading. EFF submitted an amicus brief (in conjunction with The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law, Public Knowledge, and Consumers Union) supporting the rejection of Bilski's patent application and setting forth a framework for determining patentable subject matter that focuses on the use of technology in the claimed invention.
In a brief filed in federal court yesterday, Universal Music Group (UMG) states that, when it comes to the millions of promotional CDs ("promo CDs") that it has sent out to music reviewers, radio stations, DJs, and other music industry insiders, throwing them away is "an unauthorized distribution" that violates copyright law. Yes, you read that right -- if you've ever received a promo CD from UMG, and you don't still have it, UMG thinks you're a pirate.
Who owns the B-24, the bomber that helped win World War II? U.S. taxpayers paid for it, Consolidated Aircraft built it, U.S. military pilots flew it, but Lockheed Martin says it owns the bomber—or at least it owns the name.
Some readers may already be familiar with the case of John MacNeill, the respected graphic artist and illustrator who had several digital images of classic military aircraft removed from TurboSquid, a stock images site, after Lockheed Martin claimed the images infringed its trademarks. The central mark at issue? The term “B-24,” which Lockheed managed to register as a mark for use in connection with scale models of airplanes. That’s right, Lockheed Martin claims the right to control use of the term “B-24” in connection with models of, um, B-24s.
Despite last minute attempts by the French government to divide them, European
MEPs today voted decisively against "three strikes", the IFPI-promoted plan to
create a class of digital outcasts, forbidden from accessing the Net if
repeatedly accused by music companies of downloading infringing content.
In a vote held today, hundreds of MEPs supported
which declared termination of Internet access to be in conflict with "civil
liberties and human rights and with the principles of proportionality,
effectiveness and dissuasiveness", all core values of the European Union.
- DoD Collaborating with FBI to Gain Access to Individuals' Data
The ACLU says the US Military is using the FBI to skirt
legal restrictions on domestic surveillance.
- "Fusion Centers" Compile Data on Individuals
States are operating their own intelligence centers to
track citizens and analyze data. (Log-in may be required.)
- Everything You Always Wanted to Know About Wiretapping
...but were afraid to ask.
- The Backstory on Surveillance
The National Journal tells the story of past wiretapping
Yesterday, Senator Leahy asked tough questions [Audio Excerpt MP3, 2.75MB] and this morning the San Francisco Chronicle continued its investigation of the mysterious phone call that Attorney General Mukasey referenced while speaking at the Commonwealth Club in San Francisco a few weeks ago. During the questions after his speech, Mukasey said that the government:
FISA has been missing from the front pages of the nation's newspapers for a while, but behind the scenes and on the editorial pages, the story is still very much alive. The Hill recently reported that Congressional Republicans are changing focus away from FISA and towards economic issues:
Minority Leader John Boehner (R-Ohio) is expected to announce Thursday that the House GOP floor emphasis will transition away from passing the Foreign Intelligence Surveillance Act (FISA) and earmark reform to “stop the tax hike.”
- UK Judge Won't Stop Publication, Because Net Told the World
British court turns down a request for an injunction preventing publication of a video, because the footage was already widely available online.
- British Music Industry Threatens UK ISP for Speaking Out
"The music industry has consistently failed to adapt to changes in technology and now seeks to foist their problems on someone else. Rather than threatening us, the BPI's time would be better spent facing up to the reality of our times and adapting its business model accordingly."
- EU to Google, Et Al: Your Retention Policies Break Privacy Law
Today, EFF published a report on the misuse of a National Security Letter to seek educational records from North Carolina State University at Raleigh in 2005. The NSL authority does not allow the government to seek educational records.
The detailed report stems from EFF's Freedom of Information Act request for records about NSL abuse. FBI documents show that, over the span of three days in July 2005, the Charlotte Division of the FBI first obtained educational records pursuant to a grand jury subpoena, and then -- at the direction of FBIHQ -- returned the records and sought them again pursuant to an improper NSL.
The San Francisco Chronicle reports that lawmakers are still looking for answers about Attorney General Michael Mukasey's strange tale of an unmonitored terrorist phone call. Mukasey gave the account at a speech in San Francisco last month as part of an emotional plea to legalize warrantless wiretapping. But House Judiciary Committee members say this is the first they have heard of such a call.
- EU Intends to Criminalize Terrorist "Provocations"
Online speech will be included.
- The Creep of Overbroad Surveillance Laws
RIPA, a UK bill intended to be used in serious crimes, was used to spy on a couple suspected of forging school application forms.
- French Assembly Seek to Ban Anorexia Speech
Bill which criminalizes "incitement to excessive thinness by publicising of any kind" passes the Assembly, but needs Senate approval before becoming law.
- Repression 2.0
Update: A victory! On Thursday, the Senate Judiciary Committee approved the State Secrets Protection Act. Thanks to everyone who contacted their Senator. Stay tuned to Deeplinks for more info as the bill moves through the Senate.
This week presents an opportunity to put a stop to one of the main tactics in the Bush administration's bag of sketchy legal tricks.
On April 21st, the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely to use the opinion to argue that almost every property search at the border is constitutionally acceptable.
- Feds to Collect DNA from Every Person They Arrest
Anyone arrested by the feds would have their DNA included
in a massive database.
- Chertoff Says Fingerprints Aren't 'Personal Data'
Homeland Security Secretary Michael Chertoff told the
Canadian press that fingerprints should not be considered
- Domestic Satellite Surveillance Coming Soon
The Department of Homeland Security is set to begin using a
new domestic spy program using advanced satellite
The California Assembly took a crucial first step yesterday towards closing a significant gap in protection for anonymous speech online. One of the most pernicious threats to anonymity is the filing of bogus lawsuits as an excuse to force ISPs to reveal speakers’ identities. Once such a lawsuit is filed, speakers who want to protect their anonymity must find a way to pay a lawyer to go to court and prevent disclosure of their personal information. That can be a real hardship—in fact, even the threat of having to go to court may intimidate many people from speaking out in the first place.
Last week, Microsoft announced that it was leaving the paying customers of its MSN Music store out in the cold. Rob Bennett, the head of MSN Entertainment and Video Services, told customers in an email that “[a]s of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers."
In other words, the DRM copy protection that Microsoft and the major record labels insisted customers put up with has now drastically devalued that music -- at least for consumers who like to regularly upgrade their PCs. Come August 31st, if you buy a new computer, or even upgrade your OS, you’ll have to give up your MSN Music.
The district court in Atlantic v. Howell today denied the recording industry's motion for summary judgment against Mr. and Mrs. Howell, two lawyer-less defendants caught up in RIAA's litigation campaign against file-sharers. EFF filed an amicus brief on their behalf in the case and participated in oral argument.