Tomorrow, the Justice Department will brief the Senate Judiciary staff on the prosecution of the late activist and Internet pioneer Aaron Swartz, who died in January. Swartz has become a lasting symbol for how the Computer Fraud and Abuse Act (CFAA) can be twisted by authorities to mete out draconian punishments and turn millions of Internet users into criminals.
Previously, Sen. John Cornyn asked pointed questions to Attorney General Eric Holder about the case in an oversight hearing of the Justice Department (DOJ). Thursday’s briefing will be an opportunity for the Judiciary Committee to ask more detailed questions and follow up on answers that Holder promised the Senators.
It’s a tried and true principle that once a work enters the public domain, absent an act of Congress, it stays there. It can be preserved, shared and reused freely, without even a need to attribute to the original author. Archives of public domain works are extremely valuable to the public, a treasure trove of entertainment and source materials. That is one reason the Internet Archive, a nonprofit digital library dedicated to expanding access to knowledge and culture, has made preserving and facilitating access to public domain materials a central part of its mission.
Those materials include old televisions shows, such as a popular 1950s show called “You Asked For It.” You can watch the show via the Archive site, and/or use footage from it to create new works: just what the public domain is supposed to enable.
Together with the Digital Media Law Project, we filed an amicus brief today in federal court in Massachusetts. We are urging the court to ensure that the Digital Millennium Copyright Act provides protection for victims of abusive takedown notices—specifically, that the DMCA requires copyright owners to consider fair use before sending takedowns.
EFF Analyzes Last-Minute Amendments Made to CISPA
In an opinion met by groans from open-government advocates across the country, the U.S. Supreme Court this week unanimously ruled that government transparency has its limits—and those limits can be a state’s boundaries and the citizens living within them.
Open-records laws, most notably the Freedom of Information Act on the federal level, guarantee the public’s right to access government documents and data. There are a few general exceptions (such as records related to ongoing criminal investigations and records containing sensitive personnel information), but the idea is that transparency is a prerequisite for good governance. Open-government advocates believe officials are less likely to abuse their authority when they know their work is subject to citizen scrutiny.
Today, the White House announced that Michael Froman is the nominee to be the new U.S. Trade Representative. The U.S. Trade Rep is the office in charge of negotiating all trade agreements including the Trans-Pacific Partnership (TPP) agreement, the Anti-Counterfeiting Trade Agreement (ACTA), and the upcoming US-EU trade agreement. This office has therefore been a fundamental player in the game of international copyright policy laundering.
Yesterday, the Ethiopian Supreme Court upheld the conviction and extreme sentence of award-winning online journalist Eskinder Nega, who now faces 18 years in prison. Nega was arrested in September 2011 and charged with “terrorism” under a vague law in Ethiopia that has been used to target online journalists and political dissenters. His trial and appeal faced repeated delays, while international human rights and free expression groups continued to criticize his imprisonment and punishment. EFF, PEN America, the Committee to Protect Journalists, and others campaigned for his release, and a United Nations panel found his conviction to be in violation of international law.
Twenty years ago today, the United Nations (UN) established World Press Freedom Day to raise awareness of press freedom and remind governments of their duties under Article 19 of the Universal Declaration of Human Rights. This year’s official celebration, sponsored by the UN, highlights what EFF has known for a long time: that free expression is an imperative for all media, from online newspapers to blogs to sites like Twitter and Facebook.
In the 15 years since the Digital Millennium Copyright Act (DMCA) went into effect, bogus copyright and trademark claims and overzealous enforcement bots have misused the system to silence legitimate speech and creative expression online. We collect the most egregious examples of this kind of abuse in our gallery of villains — the Takedown Hall of Shame.
Today we name and shame three new honorees: Kern's Kitchen, meanspirited censors who seek to shut down recipe-sharing; Time Warner Cable, whose idea of entertainment doesn't extend to jokes about its customer service; and Fox, which doesn't mind if its efforts to police the Homeland cause collateral damage.
Since the tragedy in Boston three weeks ago, there has been much talk in the media and political circles about technology that helped capture the suspects, the role of surveillance, and the critical issue of how privacy should be handled in the digital age. Yet the public facts known so far do not call for new governmental surveillance powers or tools. Instead, the investigation supports the conclusion that the government’s current actions did not cross the Fourth Amendment line, and complying would not harm future terrorism investigations.
How would you react if you found out that traffic laws made the roads more dangerous for pedestrians? Or if existing building codes led to newly constructed houses becoming less structurally sound? Most people would probably be distressed to find out if regulations meant to serve a certain public good in fact undermined their very purpose.
The rhetoric around copyright and patents has been that they are unquestionably effective at promoting creativity and innovation. If you’ve been following EFF’s work over the years however, you would know that that’s simply untrue. In the U.S., we have seen case after case where new businesses, innovators, researchers, and artists have been silenced or sucked dry in the face of harsh copyright enforcement provisions.
Law enforcement agencies are increasingly using sophisticated cameras, called “automated license plate readers” or ALPR, to scan and record the license plates of millions of cars across the country. These cameras, mounted on top of patrol cars and on city streets, can scan up to 1,800 license plate per minute, day or night, allowing one squad car to record more than 14,000 plates during the course of a single shift.
With the arrival of warmer weather, I'm pleased to present a slightly less black EFF member t-shirt! The bold industrial icons offer a sleek way to raise awareness about EFF's tireless protection of innovation, privacy, free speech, international digital freedom, fair use, and transparency with the enduring proclamation "Defend Digital Freedom" in the center. Get one when you join or renew your membership today!
Last week, Mozilla took an important step in the fight against the proliferation of pervasive surveillance technologies by sending a cease and desist letter to Gamma International, demanding Gamma stop using Mozilla’s trademark. Gamma makes the notorious Finspy and Finfisher malware that has ended up in the hands of authoritarian regimes. Citizen Lab’s Morgan Marquis-Boire has spearheaded research showing that Finspy tries to trick users by using the Mozilla Firefox name to masquerade as legitimate software.
When The Great Gatsby rolls out to theaters across the country this weekend, it will bring to the screen a story familiar to millions from a literary classic that's often dubbed the proverbial "Great American Novel." Here’s what many folks don’t know: even though the book was published nearly 90 years ago and is a long-established part of our shared cultural heritage, it has not yet entered the public domain.
Yes, even though F. Scott Fitzgerald died 73 years ago (and is therefore unlikely to be incentivized to produce more work), The Great Gatsby is still restricted by copyright.
In the 15 years since the Digital Millennium Copyright Act (DMCA) was passed into law, we've seen all sorts of abuse and unintended consequences stemming from its more lopsided clauses. The safe harbors it creates for Internet service providers have provided useful protections for service providers, but the takedown process it authorizes makes it too easy for bad actors to shut down legitimate speech, from personal home videos to political commentary.
From time to time, we've named (and shamed) some of the worst abusers of the takedown process in our Takedown Hall of Shame. But every once in a while a history of attempts to silence speech is so extraordinary, so truly ridiculous, that an entry in the Hall of Shame is not dishonor enough.
More than 15,000 people have signed onto our Defend Innovation campaign, demanding much needed change to the broken patent system. This is the time to act: key members of Congress—and even President Obama—are ready for patent reform. We're planning on compiling your feedback into proposals for reform that Congress can understand—and can act upon. If you haven't spoken up or signed on yet, now's the time.
The Internet is rejoicing with news that notorious copyright troll Prenda Law, and its attorneys John Steele, Paul Hansmeier, Paul Duffy, and Brett Gibbs, received a stinging sanction from federal judge Otis D. Wright, II - over $81,000 in attorney's fees and a referral to federal prosecutors. Using no fewer than twelve Star Trek references, Judge Wright accused Prenda Law of using "the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs" to "plunder the citizenry." He referred the matter to "the federal agency eleven decks up" - the U.S.
One of our most recent additions to the Takedown Hall of Shame is Kern's Kitchen, the company behind the "most litigious dessert in America." It owns a trademark on the term Derby Pie, which is the name of a popular Southern confection made with chocolate, pecans, and lots of sugar. Anybody's allowed to make it—and there are plenty of variations online and in cookbooks—but if you call it Derby Pie, you might find yourself on the receiving end of a legal threat from Kern's Kitchen.
A new bill introduced in Congress today aims to resolve the restrictions that complicate phone unlocking, and it's doing it the right way. While other proposals would apply temporary "bandaid" fixes that fail to address the underlying problems behind the restrictions, this bi-partisan proposal from Representatives Zoe Lofgren, Thomas Massie, Anna Eshoo, and Jared Polis, gets to the root of the issue.
Contact your representative today to ask them to join in supporting this bill.
Proposals to update the email privacy law, the Electronic Communications Privacy Act (ECPA), are moving quickly in Congress. ECPA is in dire need of an update as it was written in the mid-1980s long before the advent of ubiquitous webmail and cloud storage. In the past, ECPA was used by the Department of Justice (DOJ) to obtain emails and other private online messages older than 180 days without a probable cause warrant. If law enforcement sought those same messages in the physical world, a warrant would be required. This difference is not only wrong, but also inconsistent with the Fourth Amendment. Senators Patrick Leahy and Mike Lee plan to fix this.
The Trans-Pacific Partnership (TPP) — a sprawling international agreement currently being negotiated in secret meetings between government and industry representatives around the world — claims to be focused on the kind of trade regulations that affect countries and huge corporations. But in fact, many of its provisions would have profound chilling effects on hackers, makers, and tinkerers.
The problems for hackers and makers stem from the so-called "anti-circumvention" rules that have appeared in leaked drafts of the agreement. That language reflects a controversial clause of U.S. copyright law that makes it illegal to bypass technical measures that are put in place to restrict copyrighted content — such as measures that limit the number of devices on which you can play a video you legally purchased.
Today, the Federal Circuit handed down a 135-page decision in an effort to set the record straight on what can and cannot be patented under § 101 of the Patent Act. Unfortunately, the ten judges could only agree on 55 words:
Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.
Excuse us, what?
We submitted the following comment to the US Trade Rep today regarding the proposed United States-European Union trade agreement.
The Electronic Frontier Foundation (EFF) is a digital civil liberties organization that has defended technology users’ rights for over 23 years. We primarily take the fight to court, but also engage in global advocacy campaigns and direct public action towards lawmakers to ensure digital policies uphold the public interest. We have over 18,000 active paying members worldwide.
The EFF submits this document in response to the United States Trade Representative’s solicitation for comment listed in the Federal Registry on April 1, 2013, regarding the coming negotiations over the US-EU trade agreement, now called the Transatlantic Trade and Investment Partnership (TTIP).
For years the content copyright industries have been lobbying, in national law or within trade agreements, for overreaching rules that would break the Internet in the name of copyright enforcement. Lately, such proposals ranges from the termination of user access account on the mere allegation of copyright infringement, to enacting censorship powers that would make parts of the global Internet disappear from view, as well as imposing digital locks laws that stifle online innovation and restrict the ability to use lawfully-acquired digital content.
Though it was paraded around as the biggest change to patent law in half a century, the America Invents Act (AIA) of 2011 failed to address many of the patent system's largest problems. In particular, patent trolls continue their deplorable business model of buying up patents and using the threat of litigation to force companies—frequently startups—to pay up or face ruinous legal fees. These trolls have a weapon of choice: overly broad software patents—many of which shouldn't have been granted in the first place.
Today the Associated Press reported that the Department of Justice has collected the telephone calling records of many of its reporters and editors. By obtaining these records, the DOJ has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news. As James Madison understood, "a popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy, or perhaps both." AP had it right when it told Attorney General Holder that it was "a serious interference with AP’s constitutional rights to gather and report the news."
The debate to nail down the long overdue Do Not Track (DNT) standard continued at the W3C Tracking Protection Working Group face-to-face meeting in Sunnyvale last week. Despite a less hostile tone in the room, there seemed to be no clear path forward towards agreement regarding the core issue of ensuring that the standard provides users with enough privacy protection to justify its existence. With the group set to begin winding down in July, there is a lot of uncertainty about whether a consensus standard can be reached with such a short time frame, and if no consensus standard emerges, what will happen next.
Today, we’re pleased to announce that we are revising our third-annual “Who Has Your Back?” report to award Myspace three stars.
The public lost another battle in the U.S. v. Aaron Swartz case, this one over transparency. On May 13, 2013, the U.S. District Court judge handling the prosecution sided with the government, the Massachusetts Institute of Technology and JSTOR and refused to make public any information in the case that any of these three entities wished to keep under seal. The ruling effectively grants the Department of Justice, MIT and JSTOR a veto over what the public gets to know about the investigation.
This article has been written by Miguel Morachimo, Executive Director, Hiperderecho and Katitza Rodriguez, EFF International Rights Director
Hoy día nuestro gobierno se reunirá en Lima con los representantes de Estados Unidos y otros diez estados para discutir el Acuerdo de Asociación Transpacífico (TPP). Este es un nuevo acuerdo comercial en negociación entre los países del Asía Pacífico muy poco discutido en nuestro país. Sin embargo, en países como Japón, Chile o Nueva Zelanda es objeto de intenso debate porque su texto no sólo habla de libre comercio sino también regula temas tan delicados como acceso a medicamentos, libertad de expresión e innovación en entornos digitales.
Today, trade negotiators from 11 countries meet again to secretively draft the terms of the Trans-Pacific Partnership agreement (TPP). The TPP is a sprawling multinational trade agreement that includes expansive and unfair copyright provisions. If signed, the TPP will entrench these digital enforcement measures as a global standard, leading to harsh regulations that would be disastrous for Internet users worldwide.
EFF is on the ground in Lima, Peru for the 17th round of negotiations. As with all the previous TPP talks, the public is completely excluded from the process. We're here to educate and call attention to this secretive agreement until they make these negotiations transparent and democratic. As long as they continue to shut out digital rights groups, it will be impossible for them design pragmatic innovation policy that addresses our users' concerns.
Last week’s big decision in CLS Bank v. Alice saw a divided Federal Circuit tackle the patentability of software. Five judges voted to strike down patent claims to a “computer system” programmed to implement a financial transaction. But five judges would have upheld the claims. With the case seemingly headed to the Supreme Court, what’s at stake?
An expanded edition of EFFector, EFF's almost-weekly newsletter.
I’m Danny O’Brien, EFF’s new International Director. Five years ago, I worked on the EFF team that identified the threat of ACTA, a secret global intellectual property treaty we discovered was being used to smuggle Internet control provisions into the laws of over thirty countries. Together with an amazing worldwide coalition of activists from Europe to South Korea, we beat back that threat.
I’m writing to you today to explain what's happening with the new ACTA: the Trans-Pacific Partnership (TPP). TPP has been around since the Bush administration, but recently the pace has picked up, with governments saying they want to get the agreement signed and done by the end of this year.
Today EFF joins organizations from the around the world representing a diversity of interests in launching a new coalition to ask for A Fair Deal on intellectual property (IP) in the Trans-Pacific Partnership Agreement (TPP). The coalition has launched a website at www.OurFairDeal.org calling for TPP negotiators to “reject copyright proposals that restrict the open Internet, access to knowledge, economic opportunity and our fundamental rights.” The TPP meetings are taking place in Lima, Peru this week until May 25th, and EFF has been on the ground working with groups to fight those provisions and demand a seat at the table at these secretive negotiations.
To steal a line from Rep. Virginia Foxx, the gentlewoman from North Carolina: This is our shocked face.
Far be it for us to complain about Congress making noise about press freedom and improper surveillance, but c'mon—it's about darned time someone other than Sen. Ron Wyden and Rep. Zoe Lofgren stood up for civil liberties. It's just too bad that something like the Department of Justice's subpoenas for Associated Press phone records has to happen first before our elected leaders take notice.
Today, we’re happy to announce that we will be accepting Bitcoin donations through our website. You can use them to make one-time donations, set up monthly donations or get an EFF membership (which includes awesome membership swag like EFF hats and digital freedom t-shirts).
While we are accepting Bitcoin donations, EFF is not endorsing Bitcoin. EFF does not typically endorse products or services, and we certainly do not endorse any of the electronic payment methods that we currently accept (credit cards, PayPal, and now BitPay).
Representative Ted Deutch (D-FL) introduced a new transparency bill last week called the End Anonymous Patents Act (H.R. 2024, PDF)—the third piece of legislation in the last year to take on the problem of patent trolls.
EFF has been on the ground in Lima, Peru for the 17th round of Trans-Pacific Partnership (TPP) negotiations. The TPP is a secretive, multinational trade agreement, and one chapter carries overreaching copyright enforcement provisions that pose a huge threat to the Internet and users' access to devices and digital content.
This is a video from a protest outside the J.W. Marriott where TPP talks are taking place. Katitza Rodriguez, EFF's International Rights Director, talks about how U.S. negotiators of the TPP aim to create a global norm of copyright enforcement by mirroring terms of the Digital Millennium Copyright Act in this treaty. This impacts the U.S. and other countries' ability to maintain or enact their own balanced innovation policies. Besides a few leaks of previous drafts, the text of the agreement is completely secret and civil society continues to be shut out of the process.
The journalism world has been rightly outraged by the Justice Department dragging the Associated Press (and now a Fox News reporter) into one of its sprawling leak investigations. As we wrote last week, by obtaining the call records of twenty AP phone lines, “the Justice Department has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news."
But there are several other important lessons that this scandal can teach us besides how important free and uninhibited newsgathering is to the public’s right to know.
With patent trolls and patent wars creating a massive drag on innovation, a number of companies have investigated ways to navigate the patent system while still promoting openness and competition. Twitter has been especially active in this space—both by fighting back against patent trolls and in giving its own developers a voice through its Innovator’s Patent Agreement (IPA).
There is exciting news out of the Green Mountain State this week: folks in Vermont are so fed up with patent troll abuse that they are taking matters into their own hands. With trolls filing thousands of lawsuits every year and blanketing the country in threat letters, states are looking for ways to protect victims—especially small entities that lack the resources to defend against a patent suit. Vermont is tackling trolls on two separate fronts.
Today, Sen. John Cornyn (R-Texas) introduced the Patent Abuse Reduction Act, a wide-ranging bill targeting abusive litigation tactics—a favorite tool of the patent troll.
The good news first. The bill would do significant harm to the patent troll business model, making it harder to be a troll and easier to fight one in court. Patent trolls have long taken advantage of the fact that patent litigation is expensive (costing into the millions of dollars) and can take years, draining companies of resources. Patent trolls are in the very business of litigation and deploy a variety of techniques (shell companies and contingency fee arrangements, for example) to keep their own costs much lower.
Today, EFF filed a motion in a secret court.
When most people think of a trade agreement, they're unlikely to think that it would have anything to do with regulating the Internet. For more than a decade however, the Office of the U.S. Trade Representative has included copyright enforcement in international trade deals. Such provisions empower countries to enact digital restrictions in the name of preventing illegal file sharing. In practice, these copyright measures strip Internet users of their rights to privacy, free speech, and access to knowledge and culture, and could even work to undermine their very purpose of enabling and promoting innovation and creativity.
Bad facts make bad law: it’s legal cliché that is unfortunately based on reality. We saw as much yesterday, in the case of Ryan Hart v. Electronic Arts. Presented with a situation that just seemed unfair, the Third Circuit Court of Appeals proceeded to make a whole bunch of bad law that puts dollars ahead of speech.
In the midst of the major press blitz surrounding its annual I/O Conference, Google dropped some unfortunate news about its instant messaging plans. In several places around the web, the company is replacing the existing "Talk" platform with a new one called "Hangouts" that sharply diminishes support for the open messaging protocol known as XMPP (or sometimes informally Jabber), and also removes the option to disable the archiving of all chat communications. These changes represent a switch from open protocols to proprietary ones, and a clear step backward for many users.
According to the New York Times, President Obama is "on the verge of backing" a proposal by the FBI to introduce legislation dramatically expanding the reach of the Communications Assistance for Law Enforcement Act, or CALEA. CALEA forces telephone companies to provide backdoors to the government so that it can spy on users after obtaining court approval, and was expanded in 2006 to reach Internet technologies like VoIP.