Our friends at Public Knowledge have been doing a great job in Washington, D.C., fighting against the MPAA's efforts to selectively disable the high-definition analog (i.e., "component" video) outputs on your cable box. In essence, Hollywood is telling the FCC that it won't give Americans early access to blockbuster movies unless the FCC lets it kill your analog outputs.
Public Knowledge has an update today, letting us know that Hollywood is back at the FCC pushing for this anti-consumer, anti-innovation change in the FCC rules:
The MPAA claims it needs this power in order to prevent infringement of “high value content” its members would make available to Americans “for the first time” — or, as we like to call it, “the exact same content in the exact same format at the exact same quality, 30 days earlier.” It also continues to ignore the fact that other studios already release content this early, and that the content in question is available on the Internet long before the proposed window. Clearly, something else is actually at work here: the MPAA is attempting to hold content ransom to convince the FCC to give them the ability to control how consumer electronics are built and used. And to get there, it has asked the FCC to give them a special immunity to the pro-consumer rule that bans SOC without a single iota of evidence that it is necessary.
For more, check out the comments filed by EFF, PK, and a number of other consumer groups with the FCC last year or Public Knowledge's issue page about selectable output control (SOC).
As we reported in June, ASCAP believes that when your cell phone's musical ringtone sounds in a public place, you're infringing copyright. A federal court yesterday firmly rejected that argument, ruling that "when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly." This is exactly the outcome urged by EFF, Public Knowledge, and the Center for Democracy & Technology in an amicus brief filed in the case.
The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright. That's thanks to Section 110(4) of the Copyright Act, which exempts public performances undertaken "without any purpose of direct or indirect commercial advantage." In the words of the court, "customers do not play ringtones with any expectation of profit." This ruling should also protect consumers who roll down their car windows with the radio on, who take a radio to the beach, or who sing "Happy Birthday" to their children in a public park (remember, ASCAP once demanded royalties from Girl Scouts for singing around the camp fire!).
The court also found that cell phone carriers do not publicly perform when they download a ringtone to a phone (the carriers already pay 24 cents in royalties for the reproduction of the ringtone, but ASCAP was hoping to double dip by charging a public performance royalty on top of that). This is another important ruling, expanding on a 2007 ruling that also concluded that a download is not a public performance. The court reasoned that because the download was transmitted to just one person, it was not a "public" performance.
On Thursday, October 22, EFF hosts the 2009 Pioneer Awards in conjunction with the Web 2.0 Summit, and keynote speaker Reid Hoffman will be answering pre-submitted questions from EFF supporters. Wanna know how he came up with the idea for LinkedIn? Curious about what he thinks the Next Big Thing will be? Here's your chance to ask!
Reid Hoffman is the Executive Chairman and co-founder of LinkedIn, the business-oriented social networking site. Before LinkedIn, Reid was Executive Vice President of PayPal and has also held management roles at Fujitsu Software Corporation and Apple. Reid serves on the Board of Directors for SixApart, Kiva.org, and the Mozilla Corporation.
Reid will be interviewed on stage by EFF Legal Director Cindy Cohn, who will present pre-submitted questions alongside a collection of our own inquiries on innovation and digital freedom. If you have a question you'd like to ask, please submit it to email@example.com no later than noon on Thursday, October 22.
The EFF Pioneer Awards have been presented since 1992 to honor leaders in the fight for freedom and innovation on the electronic frontier. This year's winners -- Limor Fried (aka Ladyada), Harri Hursti and Carl Malamud -- have made a critical impact on our digital future with their efforts in open-source hardware and software hacking, electronic voting, and public domain advocacy.
Today a federal district court denied the government's latest emergency motion asking for a 30-day stay in last Friday's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. The new deadline is October 16, at 4 p.m. Pacific time. We sought the records pursuant to the Freedom of Information Act.
On September 24, Judge Jeffrey White had ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009. Last week, the agencies asked him to postpone his order while the government decided whether or not to appeal, which EFF opposed. Judge White denied the motion.
On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.
Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.
Judge White also noted that, even if the government had actually appealed, "in order to obviate the need for the parties to appear once again before this Court before seeking the same redress on appeal, the Court has addressed the pertinent factors it would analyze in denying a motion to stay this action pending appeal," and found the "equities weigh in favor of denial of a stay."
In particular, the Court noted the "current administration’s pointed directive on transparency in government, and the public’s renewed interest in the question of legal immunity for the telecommunications companies that participated in the warrantless wiretapping program while considering currently pending legislation repealing the amendments to FISA, the Court finds that the public interest lies in favor of disclosure."
Free file hosting provider MediaFire seems to think that, when you follow a link to download a file from its service, it has the right to control your browser. This is yetanother example of a web site owner forgetting that it's your computer, and it's none of their business how you choose to experience their web pages.
This latest spat involves SkipScreen, a Firefox plug-in that automates the process of downloading from free hosting sites like RapidShare, zShare, MegaUpload, and others (including, until recently, MediaFire). Some of these ad-supported download sites try to force downloaders to sit through a "waiting period" before revealing the actual download link— a "feature" that these sites doubtless tout to advertisers in order to get premium ad rates. SkipScreen automates this waiting-and-clicking for you. Simply put, it does nothing you couldn't accomplish just as well by hiring a human to browse for you.
MediaFire has responded by sending a lawyer letter to Mozilla, which hosts the SkipScreen plug-in, along with thousands of other Firefox add-ons. EFF has taken SkipScreen's creators as clients, and has sent a letter to Mozilla explaining why MediaFire doesn't have a leg to stand on.
Here's the short version: it's my browser, and I can ignore your ads if I want to.
MediaFire's arguments to the contrary are entirely misguided. First, they suggest that SkipScreen somehow lets users "steal bandwidth." That's wrong on the facts: SkipScreen just automates the exact process that the user would otherwise have to do themselves in order download a file. No "extra downloads," no additional bandwidth for MediaFire. Second, MediaFire argues that the use of SkipScreen violates MediaFire's "acceptable use policy." That's wrong on the law: users who follow a link to a MediaFire download never click-through or otherwise agree to any "acceptable use policy," so there's no contract here that prohibits a user from using whatever browser she likes (including whatever plug-ins she likes) to download a file.
Sure, MediaFire probably would prefer that we all sit, transfixed, while they display ads for us, just like certain Hollywood executives wish we would never leave the couch or hit FFWD when commercials run during our favorite TV shows, and certain websites wish they could ban Firefox ad-blockers. Fortunately, there's nothing in the law that says that by simply visiting a website, I give up the right to control my desktop.
OCTOBER 9, 2009 UPDATE: Mozilla has announced it will continue to support our client SkipScreen in its add-on library. Good news for browser users everywhere!
Today, the 9th U.S. Circuit Court of Appeals denied the government's emergency motion asking for a 30-day stay in today's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. A district court imposed that deadline in our long running Freedom of Information Act case. The government filed another emergency motion in the district court this afternoon following the 9th Circuit decision, again asking for stay pending its decision on whether or not to appeal. You can find more background in yesterday's blog post and we'll post any more information as soon as we get it. UPDATE: The district court held the matter over until next week, when it will decide whether a further stay is warranted.
In DC, the summer doldrums have ended, and Congress has begun a flurry of activity. Legislators are in the midst of considering several important bills:
The Informed P2P User Act is the latest effort from Rep. Mary Bono Mack, who in 1998 gave us the Mickey Mouse Protection Act. The bill is ostensibly aimed at protecting users of peer-to-peer file-sharing software from accidentally sharing their private information. Unfortunately, it takes a paternalistic approach that assumes that more pop-up warnings and FTC enforcement actions will somehow stop users from misconfiguring their software. Public Knowledge has the details. The House is due to vote on it soon; let's hope they send it back to committee for refinement.
An alternate bill called
">The AWARE Act would attempt to address "cyber-bullying" issues by providing funding for childhood online safety education — a much less invasive and more appropriate strategy.
Other problematic laws continue to lurk in the hallways of Congress. Congressional Quarterly reported last week that Democratic leadership is working hard to bring
">PASS ID, the national identification card scheme, to the floor. Senators Snowe and Rockefeller continue to promote The Cybersecurity Act of 2009, which would grant the President power to shut down the Internet. And, as we noted earlier today, a proposal from Senator Chuck Schumer is
">threatening to deny bloggers the protections of an important press shield law.
Yesterday, as the Senate Judiciary Committee voted to recommend and send to the Senate floor a USA PATRIOT Act renewal bill lacking critical civil liberties reforms, EFF's reaction was much the same as Senator Feingold's, as he expressed in his post-vote blog post at Daily Kos.
Feingold, one of only three Democrats to vote against the bill and a sponsor of the PATRIOT reform bill the JUSTICE Act, was left scratching his head over how a Democratic super-majority with a Democratic Administration could so thoroughly fail at reforming the PATRIOT Act, a law long maligned by Democrats as an affront to civil liberties. He closed by posing a choice to his Democratic colleagues: "In the end...Democrats have to decide if they are going to stand up for the rights of the American people or allow the FBI to write our laws."
Funnily and disappointingly, as you listen to the video, you can hear Committee Chairman Leahy — typically a stalwart civil liberties advocate — letting out an exasperated "oh boy" as Feingold rallies against the bill. Leahy disappointingly voted for the amendments to weaken the bill's new privacy protections and ultimately for the bill itself, after being pressed for a final vote by Senator Feinstein, who can be heard in the video at 155:58 urging the Chairman to "do it, do it!"
In contrast to Leahy, Senator Specter — a former Chairman of the Committee who recently switched parties to join the Democrats — emerged as a key civil liberties advocate, joining with Senators Feingold and Durbin to vote for reform amendments and against the final bill.
A special disappointment at yesterday's hearing was freshman Senator Al Franken's vote for the bill, which amongst other things renewed PATRIOT's "roving" "John Doe" wiretap authority allowing the government to get a wiretapping order that doesn't name the wiretapping target or specify the phone lines and email accounts to be wiretapped. Just two weeks ago, Senator Franken was lecturing a Justice Department official on how the Fourth Amendment requires that search warrants specify with particularity the persons and places to be searched. He was right, then; he was wrong, yesterday.
Another sad but humorous moment of disappointment came from Senator Klobuchar, who opposed Senator Durbin's amendment to ensure that the FBI only use National Security Letters to obtain records related to a spy or terrorist. Thinking that she was reading the text of the bill that she was about to vote for, Klobuchar recited instead Senator Durbin's proposal to defend the reasonableness of the NSL standard in the bill. In other words, as the transcript reprinted here shows, Senator Klobuchar praised the NSL standard in Durbin's amendment immediately before she voted to help kill it.
However, the biggest disappointment of all yesterday was the Obama Administration itself. Of the seven amendments to water down the bill's civil liberties protections that were offered by the Committee Republicans, at least five of them were recommended by Obama's Justice Department. As one anonymous Democratic staffer told the New York Times, the amendments "were a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday."
As we said yesterday, this vote isn't the end of the fight: there is still a chance to improve the PATRIOT renewal bill — or stop it — on the Senate floor. There's also still a chance that the House Judiciary Committee and ultimately the full House will respond to yesterday's events by introducing and passing its own, more reform-minded, PATRIOT bill. When that happens, you can learn all about it here at Deeplinks; in the meantime, we need your help to keep the pressure on the Senate to support PATRIOT reforms like those in the JUSTICE Act. So, if you haven't already, please contact your Senator today!