We applaud the Patent Office's (PTO) efforts to streamline the reexamination process, which can be slow and expensive. Patent reexaminations can serve as a crucial check when the PTO has issued an overbroad patent that is harmful to the public interest. That's one reason EFF launched its Patent Busting Project, which has been successful in narrowing and, in some cases, invalidating harmful and overbroad patents.
It’s especially important to make sure that the PTO hears the voice of third parties – individuals and businesses that don’t often apply for patents or otherwise interact with the PTO but whose day-to-day activities may be profoundly affected by PTO decisions. In many instances, those third parties have an important perspective on how to best implement processes that reject bad patents and allow innovation to thrive. EFF will continue to be a voice for those third parties before the Patent Office and support policies and reforms that will spur innovation.
The copyright trolling world has been hopping in the past several weeks, and some developments seem to bode well for the protection of due process. All in all, we’ve seen the number of total Does sued rise to over 190,000, and we estimate that the number of Does remaining after the various dismissals is over 140,000. The following are the cases in which Does have been dismissed since we last reported.
In the Northern District of California, Judge Samuel Conti denied the plaintiff’s request to issue subpoenas in the case of Millennium TCA, Inc. v. Does 1-21. In his opinion, Conti states that the plaintiff’s argument for early discovery was not strong enough to convince him that the court should order it without anyone to contest it (which is what happens when the court makes decisions before the defendants are named and notified). He also says that the 21 parties do not appear to be properly joined as defendants. Conti admonished the plaintiff, who “tellingly claims that were the Court to grant Plaintiff’s Application, it would ‘allow Plaintiff to identify additional defendants.” Not good enough, said the court: “This Court does not issue fishing licenses.”
In four other troll cases in the Northern District of California -- New Sensations, Inc. v. Does 1-1768, Diabolic Video Productions, Inc. v. Does 1-2099, Boy Racer, Inc. v. Does 1-71 and Boy Racer, Inc. v. Does 1-52 (not to be confused with the Boy Racer cases in Illinois) -- Magistrate Judge Paul Grewal found that the defendants had been improperly joined and severing all but one of the defendants in each case. As a magistrate, Judge Grewal doesn't have power to dispose of the cases altogether, so he has split each into two cases, with the new cases including Does 2-n (2-1768, etc.). The new cases have all been assigned to different judges, and Judge Grewal recommended that they be dismissed.
Last in the list of Northern District of California decisions, Magistrate Judge Bernard Zimmerman has ordered plaintiff in On the Cheap, LLC v. Does 1-5011 to show cause by July 13th why the case should not be dismissed for all defendants 2-5011 for improper joinder. The court has given any Doe defendant until July 27th to file an opposition to the plaintiff’s response, i.e., to make an argument that the case should be dismissed given the lack of legally meaningful relationship between the thousands of defendants. The hearing is scheduled for August 24th; we’ll report on the outcome.
And in the Southern District of New York, Judge Thomas P. Griesa held that plaintiffs in Digiprotect USA Corporation v. John Does 1-266 et al may serve subpoenas only for IP addresses that had already been identified as being in New York State. A mere 25 of the original 266 subpoenas will be served, so if you’ve received a notice that your information has been subpoenaed in this case, consider whether the subpoena is valid.
In an interesting turn for those who are watching the case law in these cases develop, the judge also noted that the plaintiff, Digiprotect, is not the producer of the film that was allegedly downloaded illegally, but had purchased the rights to peer-to-peer distribution of the film. While Digiprotect tried to justify its business model, the judge recognized the scheme for what it is:
Digiprotect aquires such rights from various copyright holders in order to—as Digiprotect’s counsel described it—‘educate consumers.’ This ‘education’ of consumers consists primarily of bringing suit against such consumers and seeking ‘modest settlements.'
Meanwhile, one attorney has decided to try a new tactic in the Eastern District of Texas. In March, Evan Stone used a provision in the Copyright Act that allows copyright holders to ask federal clerks to issue subpoenas in order to obtain the identity of a copyright infringer, getting 49 subpoenas issued. Large ISPs are fighting these subpoenas and a judge has granted one motion to quash. Stone says that he’ll appeal that decision, and, if forced to sue, may seek admission in the District of Columbia where he feels he'll get a more sympathetic hearing. He may find a different reception than he expects: judges -- in DC and around the nation -- don't much care for this kind of forum-shopping.
We'll keep tracking these cases, intervening where we can, and keeping you informed.
Sherman Frederick is the former CEO of Stephens Media, former publisher of the Las Vegas Review Journal, and one of Righthaven’s biggest cheerleaders. When the litigation campaign of Stephens Media's copyright enforcer Righthaven first got underway, Frederick famously wrote “So, I'm asking you nicely once againdon't steal our content. Or, I promise you, you will meet my little friend called Righthaven.”
In the wake of last week’s ruling against Righthaven in Righthaven v. Democratic Underground, Frederick wrote an unintentionally ironic column for Stephens Media entitled “Content protection -- Night of the unthinking commentator.” Frederick starts out with an ad hominem attack, comparing bloggers commenting in favor of the Nevada federal court’s ruling to “a bunch of kids camping out in the backyard, sticking a flashlight under their chin and telling each other scary stories.”
Following his strained and somewhat nonsensical metaphor, Frederick suggests that readers should instead look at three posts by GametimeIP blogger Patrick Anderson. Frederick links to the three posts, and then copies, verbatim, from each. Five sentences from the first article, three from the second, and ten sentences from the third. The quotes are not denoted as such, but basically everything after "Article 1, which in part points out:" is copied.
Which is, to say the least, quite ironic. Righthaven v. Democratic Underground is a case about copying five sentences from a Review-Journal news article. To bolster his claim that commenters are writing without thinking about the real IP issues, Frederick does exactly what his company has contended was infringement. Without, apparently, thinking about it.
The irony does not end there. Frederick claims that the bloggers writing about the decision “mischaracterize reality when it comes to newspaper attempts to control its own content.” As you may recall, in the Democratic Underground case, Righthaven argued it could sue because it was the true owner. Judge Hunt ruled that Stephens Media (the publisher of the Review-Journal newspaper) was actually the owner of the news article. Thus, when Frederick refers to “newspaper attempts to control its own content,” he is unintentionally agreeing with the judge by admitting that the content is the newspaper’sas opposed to Righthaven’s.
As for the substance of the linked blog posts, blogger Anderson (who once worked at the same law firm as Righthaven CEO Steve Gibson) disagrees with the court and most commenters. While Anderson's analysis is not particularly persuasive, it is not surprising that Frederick was delighted that a blogger with a law degree agreed with him. It is perfectly appropriate for Frederick to links to and quote from the GametimeIP blog to add to the conversation. If only Frederick had realized this was acceptable behavior before he introduced the Democratic Underground to his little friend.
If you don't agree that these excerpts are fair use, however, you'd be interested to know that Anderson decided to put the copyright rights for each of the three articles up for sale. Unlike Stephens Media's deal with Righthaven, GametimeIP is offering a total assignment, including the right to sue for past infringement.
Over the past two weeks, EFF has won the dismissal of two bogus infringement lawsuits filed by notorious "copyright troll" Righthaven LLC. In the first case, a federal judge ruled that Righthaven had no standing to sue an online political forum for a five-sentence excerpt of a news story posted by a user, because EFF sleuthing revealed that Righthaven did not own the copyright. Last week, the court relied on the evidence presented in the first case and dismissed Righthaven's lawsuit against a non-commercial blog that provides prosecutor resources for difficult to prosecute "no body" homicide cases.
These victories are sweet, but Righthaven and copyright trolls like them have filed thousands of additional lawsuits across the country, using the threat of massive damages available under copyright law to pressure defendants into quick settlements. One copyright troll is attempting to subpoena the identities of thousands of BitTorrent users and sue them collectively to minimize their own court costs, while another is targeting alleged adult film downloaders with hopes of exploiting the additional threat of embarrassment associated with porn. We need your financial support to bring an end to this awful business model.
EFF's hard work has provided the facts and precedents needed to dismiss even more lawsuits. Please support EFF today, and help us topple a troll!
UPDATE: These comments relate to the DRAFT Communique distributed to all the participants at the High Level Meeting. The final Communique is scheduled to be released on 29 June at 13:00 pm
EFF has joined with a coalition of more than 80 global civil society groups which have declined to endorse a set of Internet Policy Principles presented today in Paris by the Organization for Economic Co-operation and Development (OECD). EFF and the other members of the OECD’s Civil Society Information Society Advisory Council (CSISAC) were unwilling to accept the high profile OECD Communiqué on Internet Policy-making because it could encourage states to use Internet intermediaries to police online content, undermining freedom of expression, privacy and innovation across the world.
EFF and CSISAC urge OECD member countries to adopt policies that protect the open Internet and affirm existing limits on the liability of Internet intermediaries. We oppose legal and policy frameworks that encourage Internet intermediaries to filter and block online content or disconnect Internet users under a “graduated response” system after alleged copyright violations. Civil society calls on OECD member states to defend free expression and support due process and procedural safeguards in the protection of intellectual property rights.
Following is the press release issued by CSISAC today, and a more detailed explanation of CSISAC members’ concerns with the text of the Communique is available here.
Civil Society Coalition Declines to Endorse OECD DRAFT Communiqué on Principles for Internet Policy-Making; Urges OECD to Reject “Voluntary” Steps For Filtering and Blocking of Online Content
Paris – The Civil Society Information Society Advisory Council to the Organization for Economic Co-operation and Development (CSISAC) today declined to endorse an OECD DRAFT Communiqué on Internet Policy-making principles. CSISAC believes that the Communiqué, which was presented today at the OECD’s High Level Meeting on the Internet Economy in Paris, could undermine online freedom of expression, freedom of information, the right to privacy, and innovation across the world.
The OECD DRAFT Communiqué covers a broad range of current Internet policy issues, CSISAC supports many of the proposed principles, in particular, policies that support the open, interoperable Internet, and multi-stakeholder policy development processes.
CSISAC strongly supports OECD multistakeholder policy development processes and sees much value in working at the OECD. While CSISAC appreciates the efforts made by the OECD Secretariat and various OECD member states to accommodate CSISAC’s concerns with the draft Communiqué, CSISAC was not able to accept the final draft’s over-emphasis on intellectual property enforcement at the expense of fundamental freedoms, and its movement away from the longstanding principle in many OECD countries’ laws of granting “mere conduit” online service providers limitations on liability for the actions of their users.
The DRAFT Communiqué advises OECD countries to adopt policy and legal frameworks that make Internet intermediaries responsible for taking lawful steps to deter copyright infringement. This approach could create incentives for Internet intermediaries to delete or block contested content, and lead to network filtering, which would harm online expression. In addition, as has already happened in at least one country, Internet intermediaries could voluntarily adopt “graduated response” policies under which Internet users’ access could be terminated based solely on repeated allegations of infringement. CSISAC believes that these measures contradict international and European human rights law.
CSISAC is also concerned about limits on access guarantees to “lawful” content and references to lawful behaviour throughout the Communiqué. This language ostensibly would require Internet intermediaries or other private parties and interests to make determinations about the legality of content and of user behavior on their platforms and networks. Internet intermediaries are neither competent nor appropriate parties to make such rulings., CSISAC believes Internet intermediaries should not be responsible for identifying infringement and enforcing intellectual property rights, and requiring them to do so compromises transparency, accountability and due process. All restrictions must be based on court orders obtained after due process and judicial review.
CSISAC notes that the direction of some of the text in the Communiqué is inconsistent with the approach taken by other intergovernmental organizations including the United Nations and the Council of Europe, and could result in divergent regulatory approaches across countries, undermining the stated goal of the Communiqué to provide assistance to policymakers in OECD member states. In his 2011 Report to the UN Human Rights Council, the UN Special Rapporteur on Freedom of Opinion and Expression has specifically criticized national laws that impose liability on Internet intermediaries if they do not agree to adopt filtering and blocking measures. Furthermore, the Rapporteur has stated that cutting off users from Internet access, regardless of the justification provided, including alleged violations of intellectual property rights, is disproportionate and thus a violation of the International Covenant on Civil and Political Rights. The Council of Europe has previously published in 2008 Recommendations to member states and Guidelines to Internet intermediaries on measures to promote the respect for freedom of expression and information with regard to Internet filters and in 2007 Recommendations on measures to promote the public service value of the Internet. It is in the process of publishing a Declaration on Internet Governance Principles.
CSISAC supports the strong emphasis on the need for multi-stakeholder process regarding the development of Internet policy. CSISAC recognizes that several international bodies and organizations are currently discussing whether and how to regulate the Internet at the global level. Unlike such intergovernmental meetings such as the recent eG8 and G8 events, in which civil society was not invited to participate, the OECD has demonstrated commitment to developing Internet policies in a genuine multi-stakeholder process.
CSISAC calls on OECD member states to take a stand to combat digital censorship and uphold international human rights standards, including the fundamental rights to freedom of expression, to freedom of information, to privacy and to the protection of personal data, which are the cornerstones of democracy. Any Internet policy guidelines developed by the OECD should be grounded in legal principles that are widely accepted, and be compliant with international human rights standards. It is inappropriate for such guidelines to be derived from ad hoc regulations and policy experiments that have been adopted in a small number of countries, especially since the impact of these regulations is still far from clear. We invite member states of the OECD to protect the open Internet and make a public commitment to opposing Internet filtering and blocking by intermediaries, to affirm existing limitations on intermediaries’ liability, and to support due process and judicial review of allegedly illegal content and behavior.
A more detailed explanation of CSISAC members’ concerns with the text of the Draft Communique is available here.
The Organization for Economic Co-operation and Development is an intergovernmental body that produces economic and policy analysis and promotes policies that will improve the economic and social well-being of people around the world. The OECD provides a forum in which its 34 member governments can work together to share experiences and seek solutions to common problems. Its reports and recommendations are highly influential and have formed the basis for national laws and policies in its member states. More information is available here.
CSISAC is a coalition of more than 80 civil society groups and several concerned individuals from across the globe that, since 2009, has provided input into the development of OECD policies relating to the Internet, and formally represents the civil society perspective at certain OECD meetings.
At the beginning of June, EFF issued its Tor Challenge, calling on individuals and organizations to set up Tor relays to strengthen the Tor network and help Internet activists all over the world. Then we added the Poster Challenge, offering a Molly Crabapple poster to anyone who set up five or more relays. Today we’re unveiling the final achievement in our Tor Challenge: the Tor Video Challenge.
Tor is a service that helps you to protect your anonymity while using the Internet. Internet activists depend on Tor to maintain their anonymity online and access websites that have been blocked by their governments. The Tor network depends on volunteers to operate relays, but setting up a relay for the first time can be a tricky and confusing process for some. That’s why EFF has launched the Tor Video Challenge.
We’re asking for participants to create instructional videos that explain how to set up Tor relays on different operating systems – and compete to win awesome prizes and props from EFF. We’ve already made the first video, showing people how to set up a Tor relay on a Mac. Now we want other videos to explain how to set up Tor on different operating systems. Be creative! Videos can be funny, cute, scary, serious – but they must show users the steps they need to take in order to run a Tor relay in one of the six operating system categories. Please see the Official Rules for minimum standards and other requirements.
The videos which are created will be useful to Internet users for months or even years to come. By taking part, you’ll be helping others help Tor – creating a ripple effect for defending online privacy and anonymity.
A panel of experts will be judging each video on accuracy and clarity, creativity and entertainment value, and how well it promotes EFF values, especially anonymity and freedom of expression. This contest is open to all US residents over the age of 18. Videos must be submitted by July 5th, 2011. We will be judging videos in the following categories: (1) Windows 7, (2) Windows XP, (3) Debian-based Linux, (4) Red Hat-based Linux, (5) Other Unix-based Operating Systems, and (6) Setting up Virtual Machines. Videos should be less than six minutes in length and must be licensed using the Creative Commons Attribution 3.0 license. Check out the detailed rules.
To enter you must upload1 an original video that you have personally created to a hosting site of your choice and send the link to email@example.com. This email must include a first and last name with your email address, and physical addresses where we can send your prize if you are the winner.2
Winners will be announced by July 12th. Winners will receive a gorgeous poster about Tor by New York artist Molly Crabapple, signed by the EFF staff. Winning videos may be showcased on our Setting Up Tor page .
Got questions? Email firstname.lastname@example.org.
1. We suggest using a video sharing site such as YouTube, Vimeo, or blip.tv that allows you to attach a Creative Commons Attribution license to your Video. You may need to register with that site. Once you have created your Video, upload it to the hosting site of your choice and take the steps necessary to make it public and licensed as Creative Commons Attribution.
In a move that could have a profound impact on Fourth Amendment law, the Supreme Court has agreed to consider a question that has split the nation's appeals courts: can the police install and use a GPS tracking device to follow a person's movements around the clock every day for a month—without a search warrant?
The Supreme Court granted certiorari (pdf) today in United States v. Jones (once known as United States v. Maynard). In this case, FBI agents planted a GPS device on Antoine Jones' car while it was on private property and tracked the location of the vehicle for a full month without a warrant. Jones challenged the surveillance tactic, arguing that it violated his Fourth Amendment right against unreasonable search and seizure.
The United States Court of Appeals for the District of Columbia Circuit ruled last summer that the government's prolonged use of the device to track Jones' car required a search warrant based on probable cause, noting, "When it comes to privacy . . . the whole may be more revealing than the parts." The court went on to explain:
It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.
EFF and the ACLU of the National Capital Area partnered on an amicus brief (pdf) in the D.C. Circuit, arguing that warrantless GPS surveillance would open the door for police to abuse their authority and continuously track anyone's physical location for any reason—without ever having to show a judge that such monitoring is justified.
Other appeals courts have grappled with the question of warrantless GPS tracking, deciding under othercircumstances that such surveillance is constitutional.
In Jones, the Supreme Court will review two specific questions:
Whether the warrantless use of a tracking device on Jones' vehicle to monitor its movements on public streets violated the Fourth Amendment, and
Whether the government violated Jones' Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
EFF will continue to be involved as the Supreme Court weighs this important case. Stay tuned...
A federal appellate court this week issued a fascinating decision on whether the much-maligned “hot news doctrine” – which confers a quasi-property right in facts -- will survive in the digital age. The answer? Yes, but barely, and not as an easy way to defend an outdated business model.
The defendant in the case, TheFlyOnTheWall.com, runs a financial news service that gathered and reported on stock recommendations from investment banking firms like Merrill Lynch, Morgan Stanley, and Lehman Brothers (the"Firms") and reported them on its website. The Firms claimed that the information was "hot news" and that Fly was free-riding on the firms' work in creating the recommendations. A federal court agreed, and ordered Fly to delay reporting of the information for two hours after the reports are released.
The Second Circuit Court of Appeals reversed that holding. After a lengthy disquisition on the history of the doctrine (including a detailed analysis of its own landmark decision in NBA v. Motorola, most of which it treated as dicta, or nonbinding), the court found that the tort survives only in the narrow circumstance (the opinion uses the term “narrow” repeatedly) where a party is truly “free-riding.” Otherwise it is preempted by the Copyright Act, which forbids ownership claims in facts, or news of the day.
Free-riding, the court stressed, is not a matter of “fairness” or morality. The Firms had complained vociferously that Fly’s rapid reporting on their recommendations – made possible in part by new technologies – was impairing their traditional business model, which, they said, depends upon controlling the dissemination of their research reports. Said the court:
The adoption of a new technology that injures or destroys present business models is commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort.
Fly, the court decided, was not free-riding because it was reporting on the fact of the Firms’ recommendations -- not attempting to pass those recommendations off as its own.
The Firms are making news; Fly, despite the Firms’ understandable desire to protect their business model, is breaking it.
Several amici, including EFF (joined by Citizen Media Law Project and Public Citizen), Google, and Twitter, had urged the court to consider the doctrine in light of the First Amendment. The court largely declined. Too bad – it still seems strange to us that this vestigial doctrine that clearly impacts speech about news of the day has never received First Amendment scrutiny. That scrutiny seems especially necessary now, when the Internet is increasingly allowing Americans to publicly gather, share, and comment on the news of the day. Misuse of the "hot news" doctrine could stifle this extraordinary growth of free expression.
This is a pretty good outcome nonetheless: the high bar that the court sets for applying this dangerous doctrine will help ensure it is rarely used.