Copyright trolls are nothing new, and Righthaven is just the latest group of lawyers to try to turn copyright litigation into a business model. What these lawyers have in common is that they seek to take advantage of copyright's draconian damages in order to bully Internet users into forking over money. To anyone who has watched the file-sharing lawsuits of the last few years or the current BitTorrent cases brought by a DC law firm, the Righthaven saga is developing into a familiar, unfortunate story. It also has some especially troubling twists.
This morning, the Third Circuit Court of Appeals in Philadelphia issued its highly anticipated ruling in a hotly contested cell phone location privacy case. EFF filed a friend-of-the-court brief and participated at oral argument in the case, arguing that federal electronic privacy law gives judges the discretion to deny government requests for cell phone location data when the government fails to show probable cause that a crime has been committed.
On Saturday, after years of pressure from law enforcement officials, Internet classified ad web site Craigslist bowed to demands to remove its "Adult Services" section which critics charged encouraged prostitution and other sex-related crimes. Or at least it appears that it did. Without explanation, following the latest in a series of open letters from state attorneys general decrying the third party content permitted on the site, Craigslist replaced the "Adult Services" link that formerly appeared on the front page of the site with a white-on-black "censored" bar. Whether this move will substantially affect the rate of illegal prostitution across the country remains to be seen.
In a victory for democracy and transparency, the European Parliament adopted Written Declaration 12/2010 (WD 12) on the proposed Anti-Counterfeiting Trade Agreement earlier this week. WD 12 calls on EU negotiators to ensure that ACTA does not weaken citizens' fundamental rights of freedom of expression, privacy, and judicial due process, and will not require Internet intermediaries to act as copyright police at the behest of the entertainment industry. WD 12 also calls on EU negotiators to make the ACTA negotiation texts public, and to ensure that ACTA's proposed border measures do not interfere with access to affordable medicines.
In a major blow to user rights, the Ninth Circuit Court of Appeals has issued a decision that will go a long way toward ensuring that software buyers will rarely be software owners.
In a triumph of legal formalism over reality, the Court held that the copyright’s first sale doctrine – the law that allows you to resell books and that protects libraries and archives from claims of copyright infringement – doesn’t apply to software (and possibly DVDs, CDs and other “licensed” content) as long as the vendor saddles the transfer with enough restrictions to transform what the buyer may think is sale into a mere license.
EFF is pleased to announce two new additions to our FOIA Litigation for Accountable Government (FLAG) Project: Staff Attorney Jennifer Lynch and Open Government Legal Fellow Mark Rumold. Our FLAG Project uses the Freedom of Information Act (FOIA) and other tools to uncover and expose important government information, protect individual liberties, and hold government agencies accountable.
The Censorship Research Center announced on its blog today that it has halted testing of the Haystack anti-censorship software in Iran pending a security review by a third party. Based on this announcement, we recommend that users stop using all versions of the Haystack software immediately.
The 9th Circuit Court of Appeals, ruling en banc in a case called Mohamed v. Jeppesen Dataplan, yesterday adopted the Bush and Obama Administration's joint Executive Branch power grab in the form of the state secrets privilege. The Court, in a 6-5 en banc ruling, dismissed a case brought by victims of horrendous torture and forced disappearance against a Boeing subsidiary whose employee admitted that they knew they were handling the "torture flights." In refusing to hear the case, even the portions that could be based solely on already public evidence, the Court shunned its role as a co-equal branch of government protecting the rights of individuals against overreaching government. It also demonstrated just how badly we need Congress to step in and reform the state secrets privilege.
When it comes to copyright enforcement and the government, EFF frequently warns that giving government agents a reason to censor, search, seize, and indict must be taken very seriously. Without safeguards and a thorough accounting of the consequences, laws and policies targeting so-called "pirates" can be used to pry away human rights and undermine fundamental elements of democracy and freedom.
We saw damning evidence of this unfold this past weekend. On Saturday, the New York Times broke news of Russian law enforcement officers raiding an environmental group's offices and confiscating computers. What excuse did the police officers give for raiding the environmental group? Because Russian security services were investigating claims (unfounded, as it turned out) that the group had unauthorized copies of Microsoft software.
Yesterday, the Ninth Circuit issued an unfortunate revised opinion in United States v. Comprehensive Drug Testing Inc., a case featuring blatantly unconstitutional government action. As the court put it:
“This case is about a federal investigation into steroid use by professional baseball players. More generally, however, it’s about the procedures and safeguards that federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.”
One shocking example: the government seized and reviewed the drug testing records for hundreds of players in Major League Baseball—and many other people—even though the judicially authorized warrant was limited to the records of the ten players for whom the government had probable cause.
After months of dragnet litigation and intimidation, some of the thousands of “John Doe” Defendants targeted in mass copyright lawsuits filed in the District of Columbia are fighting back in earnest.
The lawsuits are the brainchild of a Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG). USCG investigators have identified IP addresses they allege are associated with the unauthorized uploading and downloading of independent films, including "Far Cry" and "The Hurt Locker." Using those addresses, USCG has filed several "John Doe" lawsuits in D.C., implicating well over 14,000 individuals, and has issued subpoenas to ISPs seeking the identities of the subscribers associated with those IP addresses.
Writing software to protect political activists against censorship and surveillance is a tricky business. If those activists are living under the kind of authoritarian regimes where a loss of privacy may lead to the loss of life or liberty, we need to tread especially cautiously.
Senator Patrick Leahy yesterday introduced the "Combating Online Infringement and Counterfeits Act" (COICA). This flawed bill would allow the Attorney General and the Department of Justice to break the Internet one domain at a time — by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites. The bill would also create two Internet blacklists. The first is a list of all the websites hit with a censorship court order from the Attorney General.
Continued good news in the fight to bust bad software patents: the Patent Office has issued an encouraging office action in the reexamination of the C2 patent, one of EFF's "Most Wanted" patents. The C2 patent claims to cover a “Method and Apparatus for Implementing a Computer Network/Internet Telephone System,” broad enough to essentially wholesale claim using the Internet to call someone’s phone.
The New York Times reported this morning on a Federal government plan to put government-mandated back doors in all communications systems, including all encryption software. The Times said the Obama administration is drafting a law that would impose a new "mandate" that all communications services be "able to intercept and unscramble encrypted messages" — including ordering "[d]evelopers of software that enables peer-to-peer communication [to] redesign their service to allow interception".
With all of this talk about copyright trolls and spamigation, it is easy to get confused. Who is suing over copies of Far Cry and The Hurt Locker? Who is suing bloggers? Who is trying to protect their anonymity? Who is defending fair use? What do newspapers have to do with any of this? In order to cut through the confusion, here’s a concise guide to copyright trolls currently in the wild, with status updates.
(Update: we've added a few engineers who asked to sign on right as the letter was going out; the final count is 96 signatures)
Today, 87 prominent Internet engineers sent a joint letter the US Senate Judiciary Committee, declaring their opposition to the "Combating Online Infringement and Counterfeits Act" (COICA). The text of the letter is below.
Readers are encouraged to themselves write the Senate Judiciary Committee and ask them to reject this bill.
We, the undersigned, have played various parts in building a network called the Internet. We wrote and debugged the software; we defined the standards and protocols that talk over that network. Many of us invented parts of it. We're just a little proud of the social and economic benefits that our project, the Internet, has brought with it.
On Friday, the Director of a popular alternative Thai news portal Prachatai was arrested by the Thai government. Chiranuch Premchaipoen — popularly known as Jiew — was charged under the intermediary liability provisions of the 2007 Computer Crime Act and for "Lèse Majesté," or defamation of the Thai royal family. She faces a 32-year prison sentence.
Today EFF, joined by Public Knowledge, the Computer & Communications Industry Association and the Apache Software Foundation, filed an amicus brief asking the U.S. Supreme Court to hear a case in which Microsoft is trying to make it easier to invalidate an issued U.S. patent. If successful, this challenge should help in the fight against bad patents by lowering the standard required to prove that the patent is invalid to the same one required to prove infringement. It should especially help the free and open source community.
This morning's Politico brought with it great news for those who care about free speech and fair use online:
A markup on SJC Chairman Leahy’s IP infringement bill was postponed late Wednesday, as staffers anticipated the chamber would finish legislative work and adjourn for recess before the hearing could commence. The change in plans should delight some of the bill’s critics, at least, who expressed concern that the legislation was moving forward quickly.
Translation: The Senate Judiciary Committee won't be considering the dangerously flawed "Combating Online Infringement and Counterfeits Act" (COICA) bill until after the midterm elections, at least.