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EFFector - Volume 14, Issue 4 - EFF Announces Winners of 2001 Pioneer Awards

   
    EFFector       Vol. 14, No. 4       Mar. 5, 2001     editor@eff.org
                                      
   A Publication of the Electronic Frontier Foundation     ISSN 1062-9424
                                      
  IN THE 164th ISSUE OF EFFECTOR (now with over 26,500 subscribers!):
  
     * EFF Announces Winners of 2001 Pioneer Awards
     * 9th Circuit Napster Ruling Requires P2P Developers to Ensure No
       One Misuses Their Systems
     * EFF & ACLU-WA Defend Pseudonym-Using Message Board User
     * EFF Questions Pacifica's SLAPP Tactics
     * Administrivia
       
   For more information on EFF activities & alerts: http://www.eff.org
     _________________________________________________________________
   
EFF Announces Winners of 2001 Pioneer Awards

    Electronic Frontier Foundation Press Release March 5, 2001
    
   FOR IMMEDIATE RELEASE
   
   Mon., Mar. 5, 2001
   
   ELECTRONIC FRONTIER FOUNDATION (EFF) PIONEER AWARDS HONOR INTERNET
   LUMINARIES 
   
   Bruce Ennis, Seth Finkelstein, and Stephanie Perrin Presented Awards
   at EFF's Tenth Annual Pioneer Awards Ceremony
   
   Contact: Katina Bishop, Electronic Frontier Foundation
   (415) 436-9333 ext. 101 or
   (617) 492-1234 - during CFP from 3/5 - 3/9
   
   Monday, March 5, 2001, Boston, MA -- The ceremony for EFF's Tenth
   Annual Pioneer Awards will take place at the New England Aquarium on
   March 8, 2001, in conjunction with the Computers, Freedom and Privacy
   conference this week in Cambridge, MA. The online civil liberties
   group chose to honor Bruce Ennis, in appreciation of his lifelong
   commitment to the legal defense of free expression and the First
   Amendment; Seth Finkelstein, for his dedication to raising the level
   of public awareness about the dangers to free expression posed by
   Internet content blocking and labeling systems; and Stephanie Perrin,
   for her instrumental and long-term role in advancing understanding and
   protection of privacy internationally and in her home country of
   Canada.
   
   Since 1991, the EFF Pioneer Awards have recognized individuals who
   have made significant and influential contributions to the development
   of computer-mediated communications or to the empowerment of
   individuals in using computers and the Internet.
   
   Bruce Ennis - Described by the legal press as one of the most
   influential attorneys in the country, Bruce Ennis devoted much of his
   life and practice to defending intellecual freedom. Bruce argued many
   crucial First Amendment cases before the U.S. Supreme Court and lower
   courts, including the landmark free speech victory in ACLU v. Reno
   (the "Communications Decency Act" case). Sadly, Ennis passed away
   earlier this year, on but his contributions to free expression and
   press in the Internet, news reporting, political and other spheres
   live on.
   
   Seth Finkelstein - Anti-censorship activist and programmer Seth
   Finkelstein spent hundreds of unpaid and uncredited hours over several
   years to decrypt and expose to public scrutiny the secret contents of
   the most popular censorware blacklists. Seth has been active in
   raising the level of public awareness about the dangers that Internet
   content blocking software and rating/labeling schemes pose to freedom
   of communication. His work has armed many with information of great
   assistance in the fight against government mandated use of these
   systems.
   
   Stephanie Perrin - internationally recognized privacy and freedom of
   information expert Perrin spent 5 years engineering Canada's inspiring
   new privacy law (PIPEDA), among 15 years of important privacy and
   cryptography policy work, and has bridged the government, nonprofit
   and commercial sectors in privacy technology, policy, standards and
   education. Perrin has also been involved in privacy protection issues
   at the global scale, on the OECD Security and Privacy Committee, and
   made signifcant contributions to understanding technical privacy
   protection issues.
   
   "We, as a community of people respecting rights in technology, do not
   take enough opportunity to honor our own," stated Shari Steele,
   Executive Director of the Electronic Frontier Foundation. "Bruce,
   Stephanie and Seth are shining examples of the spirit and energy that
   makes good things happen. We're proud to present them with this year's
   Pioneer Awards."
   
   The judges for this year's EFF Pioneer Awards were: Herb Brody (Senior
   Editor, Technology Review); Whitfield Diffie (Distinguished Engineer,
   Sun Microsystems); Moira Gunn (Host, "Tech Nation", National Public
   Radio); Donna L. Hoffman (Associate Professor of Management,
   Vanderbilt University); Peter G. Neumann (Principal Scientist, SRI
   Intl.; Moderator, ACM Risks Forum); Drazen Pantic (Media & Tech.
   Director, NYU Center for War, Peace, & the News Media); Barbara Simons
   (past President, Association for Computing Machinery, & U.C. Berkeley
   Distinguished Alumnus); Karen G. Schneider (Technical Director,
   Shenendehowa Public Library, NY).
   
   The Tenth Annual EFF Pioneer Awards ceremony will be held on the
   evening of March 8th, 2001, at the New England Aquarium. The ceremony
   and reception are made possible by generous contributions from
   Guardent, Michael Golub and Mark Belden, MEconomy, Inc, Organic, Inc,
   Privada, Inc., and Sun Microsystems.
   
   For more information on EFF Pioneer Awards, see:
   http://www.eff.org/awards/pioneer.html
   
   For more information on the Electronic Frontier Foundation see:
     http://www.eff.org
   
    About EFF:
    
   The Electronic Frontier Foundation is the leading civil liberties
   organization working to protect rights in the digital world. Founded
   in 1990, EFF actively encourages and challenges industry and
   government to support free expression, privacy, and openness in the
   information society. EFF is a member-supported organization and
   maintains one of the most linked-to Web sites in the world:
     http://www.eff.org
   
     _________________________________________________________________
   
9th Circuit Napster Ruling Requires P2P Developers to Ensure No One Misuses
Their Systems

  Supreme Court's "Betamax" Defense to Secondary Liability Narrowed
  
    Appeals Court Requires Judge to Rewrite Software to Prevent Infringement
    
      By Robin D. Gross, EFF Staff Attorney for Intellectual Property
      
   Like the district court before it, the 9th Circuit Court of Appeals
   found little sympathy for Internet music swapping service Napster,
   finding it liable for both contributory and vicarious copyright
   infringement. The decision chipped away at the famous holding in the
   "Betamax" case where the Supreme Court held that the movie studios
   could not outlaw a technology (VCRs) that was capable of substantial
   non-infringing uses. The appellate court then ordered Napster to
   police and control its systems to prevent future infringement and sent
   the case back to the district court for specific rulings about how
   Napster must rewrite its software to meet the court's requirements.
   
   This ruling marks a stark departure from the Supreme Court's standard
   for third party liability in Betamax where knowledge that VCRs would
   be used for some infringement was irrelevant. In Betamax, the Supreme
   Court held that allowing copyright holders to ban devices capable of
   substantial non-infringing uses would go beyond the power of copyright
   monopoly, regardless of whether the creators knew their devices would
   be used to infringe copyrights.
   
   Although the appellate court disagreed with the district court and
   held that Napster is capable of substantial non-infringing uses, it
   nonetheless held that the Betamax defense was unavailable to Napster
   because of its actual knowledge of specific infringement and
   unwillingness to prevent that infringement. This distinction narrows
   the protection for technology providers under Betamax since lawful
   uses of the system apparently become irrelevant once knowledge of
   infringement can be shown. And knowledge can be easily established by
   a content holder sending a "cease and desist" letter, rendering
   technology providers thereafter liable for the infringing actions of
   third parties who misuse their systems.
   
   Under the ruling, "if a computer system operator learns of specific
   infringing material available on his system and fails to purge such
   material from the system, the operator knows of and contributes to
   direct infringement." Furthermore, the court held that Napster
   materially contributed to infringement by providing the site and
   facilities for the infringement to occur. And the opinion could
   arguably reach to ISPs and upstream providers including technology
   companies and individuals.
   
   The appellate court attempted to recognize a distinction between
   merely providing a technology that allows for sharing of information
   and specific conduct that encourages the illegal distribution of
   music. "We are compelled to make a clear distinction between the
   architecture of the Napster system and Napster's conduct in relation
   to the operational capacity of the system," said the court. But the
   decision still cuts a wide swath through Betamax, since P2P providers
   will be required to prevent infringement or face liability. The lack
   of the traditional Betamax "substantial noninfringing uses" defense to
   P2P providers who receive notice of infringement will have a chilling
   effect on speech as operators will be required to act as copyright
   police over their systems to avoid liability themselves.
   
   It will also undoubtedly have a chilling effect on the growth of
   technology, as developers and entrepreneurs will be reticent to
   release and promote new products, services and ideas when their
   liability hinges on such a thin requirement as the receipt of a single
   complaining letter or, as the court's vicarious liability analysis
   suggests, on an affirmative duty to make sure no one misuses their
   tools or products and a threat that the court itself will second guess
   their design decisions should someone do so.
   
   The 9th Circuit laid out a new test for holding third parties liable
   for contributory infringement for providing file-sharing technology.
   According to the court, contributory liability may potentially be
   imposed to a file-sharing technology provider who:
    1. receives reasonable knowledge of specific infringing files;
    2. knows or should know that such files are available on the system;
       and
    3. fails to act to prevent viral distribution of the works.
       
   Although the court stated that the mere existence of a file-sharing
   technology, absent notice and a failure to remove the offending
   material, is insufficient to impose contributory liability under
   Betamax, P2P providers should be wary since "knowledge" of
   infringement trumps substantial non-infringing uses of the system
   under the new standard. While the 9th Circuit's decision asserts that
   it follows the Supreme Court in Betamax for dealing with contributory
   liability, its result is a dangerous narrowing of the doctrine that
   ignores and imperils the constitutional limitations to a copyright
   holder's power.
   
   DANGER: Right + Ability to Supervise = Vicarious Liability if Fail to
   Police 
   
   Even more worrisome, the appellate court found that Napster engaged in
   vicarious copyright infringement, a doctrine based in the context of
   employee/employer relationship. It imposes liability when a third
   party has the right and ability to supervise the infringing activity
   and also has a direct financial interest in such activities. Despite
   Napster's lack of a business model, the court found it financially
   benefited because the availability of the music acted as a draw for
   future customers.
   
   The 9th Circuit's holding also dramatically narrowed Betamax's
   protection against vicarious liability by requiring technology
   providers to affirmatively police their systems for potential
   infringement, a practice which essentially forces technology creators
   to serve as law enforcement for the content industry, even in the
   absence of notification that specific infringement has occurred. In
   addition to creating an undue burden, this outsourcing of police
   functions will undoubtedly result in over-policing, limiting the
   distribution of legitimately shared materials and the creation of new
   technology.
   
   The 9th Circuit found that Napster sufficiently "supervises" its
   system to trigger vicarious liability because Napster retains the
   right and ability to control access to its system and it failed to
   exercise that right to prevent infringement. "The ability to block
   infringers' access to a particular environment for any reason
   whatsoever is evidence of the right and ability to supervise," stated
   the three-judge panel.
   
   The court held that to escape vicarious liability, "the reserved right
   to police must be exercised to its fullest extent." Napster has an
   express reservation of rights policy on its Web site and regularly
   exercises those rights including terminating users. Consequently, the
   court ruled Napster "bears the burden of policing the system within
   the limits of the system," which is designed to give it the ability to
   locate infringing material listed on its search indices. Put simply:
   because Napster granted itself a right and ability to police its
   system, it is required under law to do so in order to avoid liability.
   
   Napster's failure to police its system and the court's finding that it
   financially benefited from infringement led to its imposition of
   vicarious liability. Under the ruling, a file-sharing technology
   provider may be vicariously liable when it fails to affirmatively use
   its ability to patrol its system and prevent access to potentially
   infringing files listed in its search index (if it has one). A
   file-sharing technology provider such as Freenet that is incapable of
   blocking access to users or disabling files because of its
   architectural design, seems to be at a legal advantage to systems such
   as Napster under the ruling.
   
   P2P developers must proceed cautiously as 'knowingly' ignoring
   infringement will not absolve operators of vicarious liability for the
   illegal actions of others. "Turning a blind eye to detectable acts of
   infringement for the sake of profit gives rise to liability" said the
   court. Once informed of infringement, a technology provider may not
   escape vicarious liability because of the substantial non-infringing
   uses of that technology, dramatically narrowing Betamax's protection
   against vicarious liability.
   
   The Napster decision makes clear that maintaining a right and ability
   to police the actions of users creates a dangerous legal obligation
   for that P2P technology provider to police its system to the fullest
   extent possible. Consequently, the court's treatment of secondary
   liability will significantly impact the future design of P2P
   technology (to disable right and ability to police) in order to avoid
   secondary liability.
   
   Freedom of Speech Threatened as Copyright Holders' Power Extended 
   
   The legal protection P2P technology providers enjoyed under the
   Supreme Court's Betamax standard for secondary liability has been
   curtailed in the 9th Circuit under Napster, restricting freedom of
   expression online. The copyright industry continues to secure
   dangerously broad legal precedents against innovative technologies
   whose full ramifications have not yet been thoroughly considered by
   courts or society.
   
   The potential for contributory and vicarious liability present a real
   danger for file-sharing technology providers and great care should be
   paid to the architectural design of P2P systems including consulting
   an attorney. The Napster decision represents another instance where
   the legal code will influence the design of computer code,
   consequently limiting the public's ability to access and exchange
   information online and distorting the growth of the Net.
   
   Despite Napster's demise, P2P's legal struggle lives on -- certain to
   battle RIAA further in the coming months, as the industry continues to
   wage a war to cripple the technology it cannot control and attempts to
   wrestle music distribution away from the people at the expense of
   freedom of speech and innovation.
   
     _________________________________________________________________
   
EFF & ACLU-WA Defend Pseudonym-Using Message Board User

    Electronic Frontier Foundation Press Release -
    February 26, 2001
    
  Free Speech Advocates Seek to Protect Anonymous Speech on Internet
  
      For Immediate Release
      
      Contact:
      
     Cindy Cohn
     Director of Legal Services
     Electronic Frontier Foundation
     (415)436-9333 x 108
     
     Doug Honig
     ACLU
     (206)624-2184
     
   Seattle- In a case involving free speech and privacy rights online,
   the American Civil Liberties Union (ACLU) and the Electronic Frontier
   Foundation (EFF) today asked a federal court in Washington to quash a
   subpoena that would force an Internet service to disclose the identity
   of a person who spoke anonymously on an Internet bulletin board.
   
   The ACLU and EFF are representing J. Doe in seeking to block a
   subpoena by 2TheMart.com, Inc., which is currently defending itself
   against a class-action lawsuit alleging the company engaged in
   securities fraud. The subpoena requests InfoSpace turn over the
   identities of 23 speakers who used pseudonyms in participating on the
   Silicon Investor Web site owned by InfoSpace. The motion to quash the
   subpoena was filed in U.S. District Court in Seattle.
   
   This case differs from many other Internet anonymity cases because J.
   Doe, who used the pseudonym "NoGuano," is not a party to the case, and
   no allegations of liability against Doe have been made. While Doe does
   maintain a Silicon Investor account, Doe never made any statements
   about 2TheMart, nor has Doe ever posted on Silicon Investor's 2TheMart
   message board.
   
   "If the courts don't establish a standard for the issuance of
   subpoenas in cases where the anonymous speaker is not a party, every
   party in every civil action could start subpoenaing the identities of
   online speakers in the desperate hope of finding something useful for
   their case," said Cindy Cohn, Legal Director for the Electronic
   Frontier Foundation, a civil liberties organization working to protect
   rights in the digital world. "The courts should not allow subpoenas to
   be used for 'fishing expeditions' when individuals' First Amendment
   rights are at stake. The chilling effect on free speech would be
   catastrophic."
   
   "People commonly use pseudonyms when speaking on the Internet. This
   promotes a diversity of viewpoints in cyberspace. The right to speak
   anonymously on an
   
   Internet bulletin board should be upheld just as is the right to
   distribute a leaflet using a pseudonym," said Aaron Caplan, staff
   attorney for the American Civil Liberties Union, an organization with
   an 80-year history of defending freedom of speech.
   
   In their brief filed today, the ACLU and EFF argue that the Court
   should adopt the same test currently used to determine whether to
   compel identification of anonymous sources of journalists or members
   of private organizations. Under that test, the Court must first
   determine whether the person seeking the protected private information
   (in this case 2TheMart.com) has a genuine need for the information in
   the context of the case and cannot discover the information any other
   way. If so, the Court must then balance the harm to the anonymous
   speakers against the plaintiff's need to discover the identity of the
   speaker. Anonymity should be preserved unless the identity of the
   anonymous person is clearly shown to be of central importance to the
   case.
   
   2TheMart.com was a fledgling company that intended to launch an online
   auction house. After its stock price plunged in 1999, a number of
   investors sued for securities fraud, alleging that the company had
   misled them about its prospects. Like many Internet start-ups,
   2TheMart.com had a number of people who chatted about the company on
   investor-related bulletin boards. One of these bulletin boards was
   operated by Silicon Investor, a Web site now owned by Seattle-based
   InfoSpace. The postings were made under 23 different user names,
   including "The Truthseeker," "Edelweiss," and "NoGuano."
   
   John Doe is being represented by ACLU staff attorney Aaron Caplan and
   Cindy Cohn, legal director and senior staff attorney for EFF.
   
   The brief may be found at the EFF Web site at:
      http://www.eff.org/Legal/Cases/2TheMart_case/
   
    About EFF:
    
   The Electronic Frontier Foundation is the leading civil liberties
   organization working to protect rights in the digital world. Founded
   in 1990, EFF actively encourages and challenges industry and
   government to support free expression, privacy, and openness in the
   information society. EFF is a member-supported organization and
   maintains one of the most linked-to Web sites in the world:
     http://www.eff.org
   
     _________________________________________________________________
   
EFF Questions Pacifica's SLAPP Tactics

  EFF letter to Pacfica Foundation board
  
    questioning Pacfica's attempt to silence critics by taking away their
    domain names
    
   The following is an electronic copy of a letter to the Pacifica
   Foundation board of directors from the Electronic Frontier Foundation.
                 __________________________________________
   
   Board of Directors
   Pacifica Foundation
   2390 Champlain St. NW
   Washington, DC 20009
   
   March 1, 2001
   
   An open letter to the Board of Directors of the Pacifica Foundation
   from the Electronic Frontier Foundation:
   
   It has come to the attention of the Electronic Frontier Foundation
   (EFF) that counsel for the Pacifica Foundation (Pacifica) has been
   systematically threatening Web sites that are critical of Pacifica or
   some of your member stations with domain name lawsuits. While EFF is
   not representing any of those sites being threatened at the present
   time, we have been a vocal opponent to such anti-speech tactics and
   are representing defendants in a similar lawsuit filed by the Ford
   Motor Company. (See http://www.eff.org/Legal/Cases/Ford_v_GreatDomains
   .)
   
   We write to you today because it has also come to our attention that
   you are displaying EFF's blue ribbon on the homepage of your Web site,
   http://www.pacifica.org . We are proud of our Blue Ribbon Campaign,
   and we are happy to see that Pacifica, at least in theory, believes in
   the principles of free speech that our blue ribbon symbolizes.
   
   EFF's blue ribbon is displayed on tens of thousands of Web sites
   throughout the Internet as a symbol of support for the essential human
   right of free speech, a fundamental building block of a free society.
   This right was affirmed by the U.S. Bill of Rights in 1791 and by the
   U.N. Declaration of Human Rights in 1948. The Blue Ribbon Campaign has
   been one of EFF's ways of raising awareness of online censorship and
   freedom issues, both locally and globally.
   
   We at EFF feel that free speech is such an important part of our
   humanity that no one, no company and no government, should have the
   right to abridge it. We also think that free speech has
   responsibilities such as being truthful and non-oppressive. We don't
   always agree with the speech we protect. So long as the blue ribbon is
   used simply to support our campaign, we would not bar its use based on
   whether or not we agree with the opinions of the user. That would
   contradict what the symbol is about. We would be concerned if the
   ribbon were used to imply endorsement of parties or ideas we don't
   support.
   
   EFF believes that Internet domain names impact greatly on this
   fundamental right to free speech. It is through Internet protocol
   addresses and domain names that individuals and organizations place
   their speech on the Internet and give titles to that speech, or to
   collections of that speech. And it is through these addresses that
   others locate that speech to read and use it. A domain name is in some
   ways like a book title. A company does not have the right to stop
   publication of a book with their name in the title which says
   something negative about them, so why they should they be able to stop
   an online publication with what amounts to the same kind of title.
   
   When individuals or groups choose to use domain names that identify
   things of which they are critical, that is a protected free speech
   right. Courts have upheld this use of speech as protected time and
   time again, and courts have upheld utilizing domain names for this
   purpose. It is only when there is true confusion that courts have
   intervened and ruled that free speech does not rule the day. The
   question EFF poses is "How should critical Web sites name themselves,
   if not in reference to what they criticize?" It's a serious question
   all people trying to block a domain should answer.
   
   The sites that you have targeted are not confusing anyone. You seem to
   be systematically targeting them because you disagree with the
   criticisms they make of Pacifica. Pacifica has a history of being an
   ally of free speech and EFF asks you to be guided by your own mission
   statement, which states that you will "promote freedom of the press
   and serve as a forum for various viewpoints." We have come into the
   age of an electronic press and EFF asks you to promote these same
   values on the Internet. Though EFF is not taking a position on the
   issues that caused this domain name dispute, we urge you to do the
   right thing and have your lawyers cease attempts at censorship while
   the courts of law and public opinion come to their conclusions.
   
   Thank you for your prompt attention to this matter. Together, we can
   ensure that the civil liberties we hold so dear are protected in this
   digital arena.
   
   Respectfully,
   
   Henry Schwan
   Electronic Frontier Foundation
   owlswan@eff.org
   
     _________________________________________________________________
   
Administrivia

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