all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website
New NSA Spying Decision Undermines Arguments for Telecom Immunity
Today, Chief Judge Vaughn Walker of the Northern District of California, issued an opinion in Al Haramain v. Bush, one of the cases challenging the NSA warrantless wiretapping program. The Court found that the Foreign Intelligence Surveillance Act (FISA) preempted the state secret privilege. This important decision is particularly timely, as it undermines key arguments for telecom immunity on the eve of the Senate vote on a FISA bill, set for next week.
The Court's Holding
Apparently no longer even bothering with coherent or rational arguments, supporters of the flawed surveillance bill have now resorted to namecalling. Here's Senator Orrin Hatch's argument in last Thursday's Senate debate. (h/t ThinkProgress)
As EFF has been saying for years, the best way forward in the wars over illegal filesharing is the creation of a Voluntary Collective Licensing system. It sounds simple enough: Music fans would pay a small fee each month in exchange for a blanket license to share and download whatever they like. Collecting societies would collect the money and divvy it up between rights-holders based on which files are shared the most.
As we reported yesterday, Chief Judge Vaughn Walker of the Northern District of California has just issued a key ruling in Al Haramain v. Bush, one of the cases challenging the NSA's warrantless wiretapping program. Judge Walker is also overseeing the consolidated litigation against the telecoms. With the Senate poised to vote on the FISA Amendments Act and immunity this Tuesday, this decision is particularly timely, as it demolishes key arguments made by proponents of telecom immunity:
A few months back, SF Gate cartoonist Mark Fiore introduced his character Snuggly, the Security Bear, with a brilliant take on telecom immunity. Now, Snuggly is back, and he has a few words to say about "compromise."
- Is the Gov't Tracking Us Through Our Cellphones? Lawsuit Seeks Answers
A lawsuit brought by EFF and the ACLU seeks to force release of documents on cellphone tracking.
- RIAA requests internet filtering in international treaty
The ACTA treaty is too secret for the public to see, but the RIAA has been able to make suggestions -- including gutting "safe harbor" provisions that protect ISPs.
- US and Europe near agreement on private data
Law enforcement agencies are looking for common ground to increase the sharing of private data across the Atlantic.
Yesterday, a district court dismissed several claims in the case Coupons, Inc. v. Stottlemire, in which we had, in March, filed an amicus brief. Coupons offers online coupons that consumers can access and print using software provided by Coupons. The software tries to limit the number of times a user can print each coupon. Coupons claims that John Stottlemire created a tool that modifies the Coupons software, allowing users to print more coupons.
Viacom released the following statement today in response to the YouTube user data controversy (first reported on this blog):
"It is unfortunate that we have been compelled to go to court to protect Viacom's rights and the rights of the artists who work with and depend on us. YouTube and Google have put us in this position by continuing to defend their illegal and irresponsible conduct and profiting from copyright infringement, when they could be implementing the safe and legal user generated content experience they promise.
A history teacher and part-time book publisher wanted to use two photographs from the archives of the Brooklyn Historical Society -- and was willing to pay for the rights to use them. But the Brooklyn Historical Society refused his offer, because the copyright status of the photographs is unclear. The article notes:
Former intelligence officer Daniel Ellsberg, the whistleblower who in the early 1970s released the Pentagon Papers, has spoken out against the Senate's version of FISA reform and warrantless wiretapping. In this video posted on Boing Boing Gadgets, he reminds viewers that all members of Congress have taken an oath to uphold the Constitution.
I have to say that no senator, Republican or Democrat, should be voting for this Senate bill. Not one. Everyone who does so is in fact, I would say, violating his or her oath to defend the Constitution. But they can do better than that.
Today the Bush Administration released a letter threatening to veto the upcoming FISA legislation if it included the Bingaman Amendment, which puts both telecom immunity and the court cases on hold until after the Inspector General reports about the warrantless wiretapping program. If given the choice between new surveillance powers without immunity for telcos on the one hand, or surveillance under the existing law on the other, the Bush Administration said its choice was clear: keep with the existing law.
The final Senate debate on the dangerously flawed FISA Amendments Act began this morning. Senator Feingold spoke at length in favor of Senator Dodd's amendment to strip retroactive immunity from the bill:
...Granting retroactive immunity under these circumstances will undermine any new laws that we pass regarding government surveillance. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to give them a "get out of jail free" card for allegedly ignoring the law in the past...
In a move that I can only describe as cowardice, Congress just passed legislation meant to immunize telephone companies for their illegal, disloyal, and irresponsible behavior. EFF has been fighting against telecom immunity, and we need your help to bring the fight to the next level:
Two and a half years ago, EFF sued AT&T on behalf of its customers, seeking to hold the telecom giant responsible for its craven complicity in the White House's illegal warrantless wiretapping program.
Since then, the phone companies and their allies in Washington have spent tens of millions of dollars lobbying Congress to grant them retroactive immunity. They ran ridiculous fear-mongering attack ads against any politician who dared to oppose them. President Bush threatened to veto any bill that allowed EFF's lawsuit to continue.
The debate over telecom immunity has now spanned almost two years. When the first proposal to grant immunity to the telecoms was introduced in Congress, in September of 2006, no one thought the fight would last this long.
As we ponder the bizarre spectacle of a Congress that has willingly and repeatedly rolled over on the Bush administration's expansive claims of executive power, it is worth remembering that at one time it appeared that there would be hardly any resistance at all to the question of whether to grant immunity to the telecoms that participated in Bush's illegal warrantless wiretapping program.
Today, the full panel of Sixth Circuit judges dismissed [opinion] on procedural grounds the case of Warshak v. US, a lawsuit challenging the constitutionality of no-notice, warrantless searches of email stored by an email provider. A three-judge panel of Sixth Circuit judges had previously held [PDF], based in part on briefing by EFF [PDF], that the federal statute that authorized such searches of remote email accounts — the Stored Communications Act — violated the Fourth Amendment on its face.
Our long war against warrantless wiretapping has only just begun, and we will not stop until we get that legal ruling we’ve been fighting for. Wednesday we only lost a battle, not the war, and EFF’s struggle to hold the White House and the telecoms accountable for their lawbreaking will continue on multiple fronts — starting with a constitutional challenge to the immunity provisions...
FCC Chairman Kevin Martin sent a signal today that the FCC may issue an order against Comcast in the wake of the scandal over their use of packet forgery to interfere with BitTorrent, Gnutella, and other Internet protocols.
EFF worked with Robb Topolski to run the first controlled tests of Comcast's RST forgery practices last year. We've been following the issue closely since then, and believe that Comcast's decision to switch to less discriminatory network management practices represented a victory for transparency, for an open network, and for common sense.
In a decision that surely will be cited many times in coming years, Judge Richard Sullivan today sided with eBay in his decision [sixty-six page PDF] in the Tiffany v. eBay trademark trial. In so doing, the judge confirmed that trademark law is about consumer protection, not about squelching speech, and also rejected an attempt by Tiffany radically to expand the reach of contributory infringement.
Yesterday, Google/YouTube and Viacom reached a stipulation agreeing to anonymize information about most YouTube users prior to production. As YouTube's blog put it, "Viacom, MTV and other litigants have backed off their original demand for all users' viewing histories and we will not be providing that information."
In a devastating blow to user rights, an Arizona federal court has ruled that consumers can be guilty of copyright infringement if they violate the end user license agreement ("EULA") that comes with the software--even where the so-called "violation" is specifically excluded from copyright liability. Why? Because those protections only apply if you own the software you buy--not if you license it. Stunningly, this means that "cheating" while playing a computer game can expose you to potentially huge statutory damages for copyright infringement.
Today Michael Fricklas, Viacom's General Counsel, sent EFF a letter in response to the concerns we raised regarding the user viewing data controversy over the past week. The letter, arriving on the heels of the stipulation entered between Google and Viacom last night, helps assuage a remaining concern: what if the parties changed the stipulation at a later time?
To address this concern, Viacom's letter promises:
Monday’s stipulation between YouTube and Viacom did not “extend to records reflecting the business activities of the parties’ employees and agents.” Instead, as we noted yesterday:
The parties will meet and confer within 14 days of the execution of this Stipulation concerning records reflecting the business activities of the parties’ employees and agents. If the parties cannot reach agreement on this issue, any party may submit it to the court.
Today we expand upon why the Video Privacy Protection Act protects the records showing the video viewing habits of Google/Youtube and Viacom employees.
- Apple Sues Psystar
The Psystar OpenMac has incurred the wrath of the "Closed Software Movement."
- Prosecutor Flagged by US Terror Watch List
Air travel is difficult for Assistant Attorney General Jim Robinson, who has been put on a secret list by mistake.
- A Foreign Correspondent Speaks Out About the FISA Amendments Act
Chris Hedges is a long-time reporter on the Middle East and says his ability to report the news will be compromised.
- Democrats Who Spoke Out on Immunity
The chorus of voices criticizing the Digital Millenium Copyright Act (DMCA) has just gotten a bit louder with the addition of a new and authoritative voice: The Library of Congress. In a new report, jointly released with the U.K.'s Joint Information Systems Committee, Australia's Open Access to Knowledge (OAK) Law Project, and the Netherlands' SURFfoundation, the Library of Congress' National Digital Information Infrastructure and Preservation Program points out that the work of preserving, documenting and archiving the nation's intellectual output is made unnecessarily difficult by antiquated copyright law exceptions and limitations, and TPM (technological protection measure) laws designed to restrict the making of digital copies.
New York Attorney General Andrew Cuomo recently succeeding in pressuring AOL and AT&T to join the ranks of Verizon, Sprint, and Time Warner Cable in limiting access to many or all of the Usenet newsgroups hosted on their servers. This tactic will hinder free speech and the access to information in Usenet communities, without deterring the child pornographer. But since the ISPs are “voluntarily” bowing to political pressure, rather than obeying a statutory edict, traditional First Amendment court challenges are unlikely to protect these online communities.
EFF's Patent Busting Project, continues to march forward, this time with more good news about the petition that EFF, in conjunction with Paul Grewal and James Czaja of Day Casebeer Madrid & Batchelder, filed last April seeking reexamination of the NeoMedia bar-code lookup patent. We're happy to report that the United States Patent and Trademark Office (PTO) recently rejected all ninety-five claims [5.3 MB PDF] of the patent.
Public Knowledge, joined by EFF as well as the Consumer Federation of America, the Digital Freedom Campaign, the Media Access Project, the New America Foundation and U.S. PIRG, yesterday filed an opposition [PDF] to the MPAA's FCC petition seeking a waiver of the ban against selectable output controls (SOC) (we have an explanation of what a "selectable output control" is on our Digital Video issue page).
Salon today published a new article in it's series of investigations into the Bush administration's illegal spying programs: Exposing Bush's Historic Abuse of Power (log-in may be required).
The article describes how some in Washington D.C. are discussing the idea of a new and sweeping investigation into the White House's surveillance programs, one inspired by the famous Church Committee investigations of the 1970s. The Church Committee uncovered the extent of illegal surveillance begun during the McCarthy era and expanded under President Nixon, and lead eventually to the FISA reforms which President Bush has so famously ignored.
The article also makes new claims about the extent of the current spying program, citing the use of a secret database with roots in programs begun under President Reagan in the 1980s:
It’s been two weeks since the Senate’s cowardly vote to pass the FISA Amendments Act (FAA), caving in to the president’s demands. With this vote, Congress gave the president virtually all of the spying powers he has sought for so long, and delivered the one thing he demanded above all else: Immunity for his telecom buddies for their role in his illegal spying program.
EFF fought long and hard to prevent passage of immunity for the telecoms, and this vote was a serious setback for our case seeking to hold AT&T and the other telecoms accountable. But the fight is far from over. As we suggested in the immediate aftermath of the vote, Congress may have caved, but EFF has not. In the coming months and weeks, we will continue the fight against immunity on multiple fronts.
Just over a month after consumer backlash caused MSN Music to rescind its decision to deactivate the digital rights management ("DRM") servers that allowed MSN Music purchasers to "reauthorize" music files after upgrading operating systems or buying new computers, Yahoo! Music has decided to deactivate its own DRM servers.
The ACLU, EFF, and a coalition of plaintiffs achieved yet another victory for online free speech this week when the U.S. Court of Appeals for the Third Circuit affirmed [decision, PDF] a district court's decision [decision, PDF] granting a permanent injunction against enforcement of the Child Online Protection Act of 1998 (COPA), a federal law that would violate the First Amendment by imposing civil and criminal penalties on commercial website operators that publish sexually explicit material without also using credit card authentication or other technological measures to verify viewer age and block access by minors.
When I was a kid, it seemed that every third commercial I saw was for Reese's Peanut Butter Cups. In these commercials, a chocoholic would collide with a peanut butter lover, quickly followed by the memorable exchange of "you got peanut butter in my chocolate" and "you got chocolate in my peanut butter." But then something amazing happened. Each of them sampled the combined treats, and their faces lit up with delight as they unexpectedly discovered "two great tastes that taste great together."
- Parents to Be Punished For Children's Net Piracy
Households that are suspected of illegal downloads will be blacklisted and have Internet access curbed under new rules in the UK.
- Senate Bill Asks Attorney General to Investigate Piracy
Senators Leahy and Specter have introduced a new bill that would allow documents and records to be seized in civil copyright-infringement suits.
- ISP Admits Secret Web Snooping in Kansas
An ISP in Kansas admits to eavesdropping on the web surfing habits of it's customers without notifying them.
On Friday, a U.S. District Court granted the motion for judgment on the pleadings we and our co-counsel Tom Burke of Davis Wright Tremaine LLP filed in a copyright infringement suit brought by talk show host Michael Savage against the Council on American-Islamic Relations. Savage had sued CAIR back in December 2007, alleging that CAIR infringed the copyright in his show when it posted on its web site brief excerpts from Savage's radio program in order to criticize Savage's remarks. Savage also added a federal racketeering claim stemming from that alleged copyright infringement.
Last week, the patent office agreed to reexamine a patent it granted in 1994 on a "Computer-assisted parts sales method." Orion IP (later renamed Clear with Computers) has filed many, many lawsuits asserting infringement of this and related patents by many, many defendants. Although EFF didn't file this request for reexamination, at one time the patent was owned by Firepond, just like one of the patents on our Patent Busting Project's Ten Most Wanted list.
Last week, Yahoo! faced a predictable backlash when they announced that they would be ending support for the DRM that came with music sold through its Yahoo Music service. EFF and others criticized the decision, saying Yahoo should either continue to support the DRM or compensate their customers with refunds and/or replacement mp3s. Now, Yahoo has happily chosen to do right by their customers and provide full refunds for any music sold through Yahoo Music that came wrapped in what is soon-to-be obsolete copy protection.
It's no exaggeration to say that Ed was one of the preeminent consumer rights activists of the digital age. During his more than 20 years as a "reader advocate" at InfoWorld, he was far ahead of his time, recognizing that in a world increasingly dominated by software and online services, the digital consumer needed a champion when squaring off against the likes of Microsoft, Adobe or AutoDesk. Following in the traditions of the best consumer reporters before him, Ed exposed software vendors and online service providers that treated their customers shabbily.
Last week, members of the Senate Judiciary Committee introduced S. 3325, the "Enforcement of Intellectual Property Rights Act of 2008," a bill that proposes a number of alarming changes to copyright law. The bill is the Senate's gift to big content owners, creating new and powerful tools -- many of which will be paid for by your tax dollars -- for the entertainment industry to go after infringers. But it doesn’t offer a lick of protection for legitimate innovators and technology users that may be buried by the copyright juggernaut.
- Kansas Sentator Outraged by Chinese Spying
Senator Brownback objects to dragnet surveillance — when it is done by other countries.
- Networks Sue Redlasso
Fox and NBC made good on a threat to sue Redlasso, the popular service that allows users to clip and post TV shows.
- Is the Air Force Immune to DMCA Suits?
A DMCA suit against the US Air Force alleging copyright infringement and anti-circumvention violations was thrown out of federal court on the basis of "sovereign immunity."
- Pelosi's Revisionist FISA History
- 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