Today, Chief Judge Vaughn Walker of the United States District Court in San Francisco denied the government's third motion to dismiss the Al-Haramain v. Bush litigation. The ruling means that the case can proceed and the court also set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information.
Over the holidays, video hosting site Veoh won another victory under the DMCA safe harbors, this time against Universal Music Group (UMG). The ruling should put to rest the argument that transcoding and other activities necessary for making content accessible on the web are not covered by the DMCA's Section 512(c) safe harbor for storing material on behalf of users (i.e., hosting user-generated content). This is good news not just for Veoh, but also for YouTube and every other site that hosts material uploaded by users.
At this week's Macworld Expo, Apple announced that by April, music from the iTunes Store will no longer be shackled by digital rights management (DRM). Finally, DRM is good and fully dead for digital music -- gone from CDs, gone from downloads, and largely dead for streaming.
Apple's announcement comes nearly a year after Amazon.com's DRM-free MP3 deals went live, demonstrating that the record labels were holding the DRM card until they could wring business concessions from Apple (in the form of variable pricing). This just underscores that DRM is not really about stopping piracy, but rather about leverage over authorized distributors.
In a scenario that has become depressingly familiar, a news organization has again used the Digital Millennium Copyright Act ("DMCA") to censor legitimate political speech. Citizen Media Law Project reports that YouTube cancelled Progress Illinois' YouTube channel after Fox News had sent three notices of copyright infringement demanding the takedown of Progress Illinois' videos. In the videos, Progress Illinois, a union-sponsored blog, apparently used short clips of Fox News coverage of local and national political events to set up political commentary about those events. Progress Illinois sent a counternotice asking YouTube to restore the video, but that won't happen for several days, i.e. long after public interest in the event Progress Illinois is talking about has waned.
iPhone application developers have until February 2, 2009 to submit comments to the Copyright Office in support of EFF's proposal for a DMCA exemption for iPhone owners who want to "jailbreak" their iPhones to gain the freedom to install applications of their choice. If you're an iPhone app developer, and you have a story about your frustration with Apple's chokehold over iPhone apps, please share it with the Copyright Office. Legalizing jailbreaking is a critical step in loosening Apple's grip and creating an open market for iPhone applications.
2008 was another tough year for proponents of digital rights management (DRM). As we have pointed out in years past, the infamous Darknet assumptions — three big reasons that DRM copy protection will never work, as set forth in 2002 by a team of Microsoft engineers — continue to be proven true by events.
Let's review the three Darknet assumptions one at a time, and see how they fared in 2008.
1. Any widely distributed object will be available to a fraction of users in a form that permits copying.
We've just started an EFF account on Twitter, the popular social networking service. It's a bit of an experiment — we're not really sure how we'll wind up using it. But expect to see everything from breaking news to random trivialities to conversations between EFF members and supporters.
If you've got an account, follow us. If you've got a question or something to say, send us a @.
- Mobile Phone Searches — Warrant Required?
Courts are weighing the question of whether searches of handheld devices during arrests require a warrant.
- Inside a DHS Travel File
Sean O'Neill made a FOIA request for his travel dossier kept by the Department of Homeland Security.
- An Analysis of Obama's DOJ Pick
President-elect Obama has selected David Kris to head the National Security division at the Department of Justice.
- P2P Meets Social Networking
Across the world, politicians perennially declare their intention to purge or
blacklist websites they fear are damaging to children or the public welfare. The call for censorship hasn't stopped, despite many years of evidence that pervasive Net censorship is invasive, infeasible, and href="http://www.huffingtonpost.com/michael-a-santoro-and-wendy-goldberg/chinese-internet-censorsh_b_156212.html">economically
damaging. Nor is it likely to be stopped by today's href="http://cyber.law.harvard.edu/node/4987">Internet Safety Technical
Taskforce Report on protecting children from internet predators, which reinforced that href="http://www.nytimes.com/2009/01/14/us/14cyber.html?_r=1">Net censorship is an ineffective solution to an exaggerated problem.
The FISA Court of Review (FISCR) today released a public version of an opinion concerning warrantless wiretapping. An unnamed telecommunications carrier stood up for its customers' privacy by fighting the case through an initial decision by a FISA court and the appeal to the FISCR. The Court approved the specific application of the expired Protect America Act (PAA) and expressly rejected arguments that the law was unconstitutionally applied in the case before it.
What does that mean for cases in the public, nonsecret courts challenging dragnet surveillance? Legally: nothing.
- Online Gamers in China To Register with Real Names
No anonymity, even in MMORPGs.
- South African IP Bill locks down innovation
Public sector innovators will have to hand over their ideas to be patented by the government.
- EU Privacy Watchdog: Protections Are Growing Weaker
Data retention laws have weakened European privacy, says Peter Hustinx, the European Data Protection Supervisor.
- Piracy Tax for the UK?
The Kentucky Court of Appeals today granted petitions by the Interactive Gaming Council (IGC) Interactive Media Entertainment and Gaming Association, Inc. (iMEGA) to overturn an earlier trial court ruling authorizing the seizure of domain names owned by operators of overseas gambling websites. While challenged on several additional fronts -- including on a wide range of Constitutional grounds by EFF and its fellow amici the ACLU of Kentucky and the Center for Democracy and Technology (CDT) -- the Court overturned the prior ruling based on an interpretation of Kentucky's "gambling device" forfeiture statute:
From reading the official European Commission documentation on its proposed Copyright Term Extension Directive, one might believe perpetuating performer copyrights from 50 to 95 years in Europe is a charitable policy with no ill effects at all. That's certainly how Commissioner Charlie McCreevy would like it to appear, as he pushes for the Parliament to vote on the Directive in March of this year.
But lawmakers in Brussels are only hearing one side of the story from the Commissioner. That's why the campaign against copyright term extension is holding a public meeting in Brussels next week, for you or your MEP to attend free.
More good news for EFF's Patent Busting Project! Last week, the United States Patent Office (PTO) rejected all twenty claims of the Internet subdomain patent [PDF] on the Project's Ten Most Wanted list. Based on a combination of prior art that EFF had supplied and similar Internet newsgroup postings, the PTO concluded that the ideas claimed by the patent were obvious and, therefore, unpatentable.
The patent essentially attempted to claim ownership of the idea of virtual subdomains. But that idea was well known long before the patent issued. For example, over a year before the patent application was filed, members of the Apache developer mailing list were discussing how best to create virtual subdomains.
- Obama's AG on the Patriot Act
Eric Holder said at his confirmation hearing that he supports renewal of Patriot Act provisions that allow the government to access library and bookstore records.
- Report Finds Online Threat to Children Overblown
Many parents fear the Internet may make their children vulnerable to sexual predators online, but 49 state attorneys general now say the Internet may be safe for kids after all.
- Payment Processor Breach May Be Largest Ever
A data breach at a payment processor in Princeton, NJ may have exposed tens of millions of credit card records.
In a victory for online free speech, the U.S. Supreme Court today refused to hear the government's appeal of a July 2008 ruling holding the Child Online Protection Act of 1998 (COPA) unconstitutional and enjoining COPA's enforcement. The case was brought by the ACLU, EFF, and a coalition of plaintiffs.
Today's decision marks the end of the road for COPA, a federal law that violated 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.
It's only his first day in office, but President Obama has already signaled a serious commitment to transparency and accountability in government. The President ordered federal agencies in a memorandum released today to approach the Freedom of Information Act (FOIA) "with a clear presumption: in the face of doubt, openness prevails."
This message is in line with advice EFF and other nonprofits gave the Obama Transition Team on transparency issues shortly after the election.
According to Obama's memo:
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
Last night, less than 48 hours after George Bush left office, whistleblower and former NSA analyst Russell Tice revealed new information about the NSA's warrantless wiretapping program:
On December 11, 2008, Boston.com launched a "hyper-local" site for the town Newton, Massachusetts. The site heavily features links to news stories aggregated from around the web. Much like many blogs and news aggregation sites do, the site includes the headline and a snippet from these stories, attributed and linked through to the original article.
Linking to posts by others on the web is ordinary, expected, and usually appreciated. But in a situation reminiscent of the AP debacle of last summer, GateHouse Media, the publisher of a Newton-focused weekly, blog, and news site, didn't much care for the free traffic Boston.com was sending it.
In a recent review of the HP Color LaserJET CM3530 printer, the magazine Government Computer News called out the use of tracking codes -- which GCN referred to as "a secret spy program" -- as the biggest problem with that printer. GCN found that the yellow dots produced by this printer particularly degraded print quality and noted that some people would question the "logic or appropriateness" of having printers produce the dots at all; it concluded that even people who didn't object to the tracking codes in principle would regret the poor print quality they produced in this case.
The incoming Obama administration has impressed advocates of open government, first by making a clear commitment to answer FOIA requests with a presumption of openness, and now by responding quickly -- within 24 hours! -- to criticism from CNET blogger Chris Soghoian and others that the retooled WhiteHouse.gov is placing cookies on user computers via YouTube videos embedded on the site.
- Swedish Police want Personal Info from P2P users
Court orders obtaining info on file-sharers would be easier under a proposed new Swedish law.
- China's Porn Crackdown may be Aimed at Dissent
Observers note that the Chinese arrests aimed at removing "vulgarity" from the Internet are part of a wider, political, dragnet.
- Australian Net Filtering is an "Insult to Parents"
Opposition senator Nick Minchin on the disempowering nature of the proposed compulsory net blocking by the Rudd administration.
Late last week, Microsoft launched a mobile phone music downloading service in the UK, but the public has quickly focused its attention on Microsoft UK's mystifying choice to include digital rights management (DRM) on its music files. PC Pro reports that the restrictions prevent buyers from playing the music anywhere but on the mobile phone used to make the purchase, while tracks from the iTunes Music Store and Amazon's MP3 store are cheaper and DRM-free.
In a follow-up Q&A published by PC Pro, a Microsoft UK executive attempts a familiar "defense" of the DRM antifeature -- acting like the consumer may want less freedom with their purchased media:
With trial looming, GateHouse Media and the New York Times over the weekend settled their dispute over "hyper-local" news aggregation sites on the NYT-owned Boston.com website.
The parties' joint press release pointed interested parties to the binding letter agreement [PDF] the parties signed over the weekend. The agreement includes several key points addressing past behavior:
As we noted last week, the new WhiteHouse.gov site uses embedded YouTube movies, raising concerns of privacy and open government advocates. Embedded video clips can place or add to a cookie on the user’s computer – thus enabling tracking of users as they use the web. In response, the Obama Administration acted quickly, implementing a partial fix that ensures cookies will only be used when the user chooses to play the video, and not automatically upon loading a page.
This is an improvement, particularly impressive for the speed of the response, and we commend the Obama Administration for it.
Today, the New America Foundation, PlanetLab and Google announced the launch of the Measurement Lab project, an initiative to provide server resources for researchers interested in network neutrality and performance testing. This is good news for the community of academics and activists who are trying to map, measure and record the state of network management by ISPs as well as many other aspects of Internet performance.
While there were rumors today that Comcast and AT&T might be entering into an agreement with the RIAA in the United States, it was in Ireland where the recording industry made its latest "three strikes" subscriber termination deal with the telecom industry -- using the courts and the threat of mass Internet filtering obligations as the inducement.
The Irish Recorded Music Industry (IRMA), the local recording industry organization, and Irish internet service provider Eircom announced a settlement this morning, ending a lawsuit in which IRMA was demanding that the ISP pro-actively discriminate content on their networks.
According to briefs filed last month by the RIAA and Universal Music Group, it's illegal to sell, give away, or even throw out "promo CDs." Of course, this is exactly the argument that UMG made, and lost, in court last year. Despite that loss, and despite the open secret that many music reviewers have been dumping promo CDs in used record stores for years, UMG has opted to appeal.
- ACLU Requests Bush-era Memos
In a test of President Obama's commitment to transparency, the ACLU requested sensitive Bush administration memos on torture and wiretapping that have long been sought by privacy and human rights advocates.
- Patriot Act Used to Punish Fliers
Conflicts with airline staff have led to fliers facing federal terrorism charges.
- Cox Ready to Throttle P2P
The cable service will give preference to time-sensitive traffic during periods of congestion.
- Blair Backs Telecom Immunity
- 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
- Stupid Patent of the Month
- 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
- TPP's Copyright Trap
- Trans-Pacific Partnership Agreement
- Travel Screening
- Trusted Computing
- Video Games