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EFFector - Volume 16, Issue 15 - EFF Asks Court to Uphold Betamax in Aimster Case


EFFector - Volume 16, Issue 15 - EFF Asks Court to Uphold Betamax in Aimster Case

EFFector       Vol. 16, No. 15       June 6, 2003

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 254st Issue of EFFector:

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Electronic Frontier Foundation Expands San Francisco Staff

Hires New Attorneys, Technologist, and DC Policy Liaison

San Francisco and Washington, DC - The Electronic Frontier Foundation (EFF) this week announced it has hired five staff to support its mission of protecting and promoting civil liberties in the digital realm.

EFF hired the following staff, listed in alphabetical order:

Kevin Bankston, an attorney specializing in free speech and privacy law, is joining EFF as the Equal Justice Works/ Bruce J. Ennis Fellow for 2003-05. Before joining EFF, Bankston was the Justice William J. Brennan First Amendment Fellow for the American Civil Liberties Union in New York City. At the ACLU, Kevin litigated Internet-related free speech cases, including First Amendment challenges to both the Digital Millennium Copyright Act (Edelman v. N2H2, Inc.) and a federal statute regulating Internet speech in public libraries (American Library Association v. U.S.). Bankston received his J.D. in 2001 from the University of Southern California Law Center, and spent his undergraduate years at the University of Texas in Austin. Bankston's fellowship at the EFF, which begins this fall, is sponsored by Equal Justice Works Fellowships and the Bruce J. Ennis Foundation.

Lisa Dean joins EFF as a Washington Policy Liaison and will be based in Washington, DC. Dean comes to EFF from the Free Congress Foundation (FCF) where she was Director of the Center for Technology Policy. In her capacity at FCF, she worked on privacy and constitutional issues ranging from banking privacy to dataveillance and government surveillance standards for nearly a decade. Dean led the fight against the Know Your Customer banking regulations and organized opposition to national IDs. Dean will continue to work on these issues by attending meetings and providing a presence for EFF in Washington, DC.

Dan Moniz is a Staff Technologist focusing on free speech and privacy issues. Previously, Moniz served as a research consultant to a number of high-tech companies, including Cloudmark, Inc., and has also held positions with peer-to-peer software firm OpenCola and security software development house Viasec, Ltd. Moniz has a background in computer security research and strong interests in programming language design and artificial intelligence.

Jason Schultz is a Staff Attorney specializing in intellectual property and reverse engineering. Prior to joining EFF, Schultz worked at the law firm of Fish & Richardson P.C., where he spent most of his time invalidating software patents and defending open source developers in lawsuits. While at F&R, he co-authored an amicus brief on behalf of the Internet Archive, Prelinger Archives, and Project Gutenberg in support of Eric Eldred's challenge to the Sonny Bono Copyright Term Extension Act. Prior to F&R, Schultz served as a law clerk to the Honorable D. Lowell Jensen and as a legal intern to the Honorable Ronald M. Whyte, both in the Northern District of California federal court system. During law school, Schultz served as Managing Editor of the Berkeley Technology Law Journal and helped found the Samuelson Clinic, the first legal clinic in the country to focus on high tech policy issues and the public interest. Schultz also has undergraduate degrees in Public Policy and Women's Studies from Duke University.

Wendy Seltzer, who joined EFF in January 2003, is a Staff Attorney specializing in intellectual property and free speech issues. As a Fellow with Harvard's Berkman Center for Internet & Society, Seltzer founded and leads the Chilling Effects Clearinghouse, helping Internet users to understand their rights in response to cease-and-desist threats. Prior to joining EFF, Seltzer taught Internet Law as an Adjunct Professor at St. John's University School of Law and practiced intellectual property and technology litigation with Kramer Levin Naftalis & Frankel in New York. Seltzer speaks frequently on copyright, trademark, open source, and the public interest online. She has an A.B. from Harvard College and a J.D. from Harvard Law School. Seltzer occasionally takes a break from legal code to program (Perl).


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EFF Asks Court to Uphold Betamax in Aimster Case

EFF and twelve other public interest, technology industry, and library organizations asked the 7th Circuit Court of Appeals to uphold the important Sony "Betamax" doctrine in a friend-of-the-court brief filed on May 31 in the Aimster peer-to-peer software litigation. In a landmark 1984 decision called Sony Corporation v. Universal Studios, Inc., the U.S. Supreme Court ruled that creators and distributors of technology could not be held liable under copyright law as long as a technology was capable of substantial non-copyright-infringing uses. Known as the "Betamax doctrine" because the decision upheld Sony's right to sell Betamax video recorders, the court's decision has guided technological innovation for almost two decades.

Aimster (now called Madster) was one of several P2P software companies sued by entertainment industry copyright owners for contributory and vicarious copyright infringement following the defeat of Napster in 2001. The copyright owner plaintiffs obtained an injunction from the district court of the Northern District of Illinois in 2002 to prevent Aimster from distributing its P2P software. That decision is on appeal to the 7th Circuit, and oral argument was held on June 4, 2003.

The following organizations joined EFF on the Amicus brief: American Association of Law Libraries, American Library Association, American Research Libraries, Computer & Communications Industry Association, Consumer Electronics Association, Digital Future Coalition, Grokster, Ltd., Home Recording Rights Coalition, Music Library Association, Net Coalition, Public Knowledge and Streamcast Networks, Inc.

EFF is pleased that so many organizations joined to support preservation of the important Sony-Betamax doctrine. Unfortunately, the 7th Circuit Court of Appeals declined to accept the Amicus brief. While this was a disappointing outcome, EFF looks forward to future opportunities to raise these important issues before the courts.


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Analysis: EFF Breaks Down Recent Report on TIA

On May 20, 2003, the Defense Advanced Research Projects Agency (DARPA) issued its "Report to Congress regarding the Terrorism Information Awareness Program" (TIA). The Report, mandated by Congress and written to "assess[] the likely impact of the implementation" of TIA on civil liberties and privacy, was an opportunity for DARPA to make a careful review of the components of TIA and require accountability for each of these components. Unfortunately, the Report did not take advantage of this opportunity.

The Report makes one thing quite clear: TIA is being tested on "real problems" using "real data" pertaining to U.S. persons, apparently from Defense Department (DoD) intelligence files.

Otherwise, the Report doesn't shed much light on the issues that concern EFF. It provides an overview of the various TIA components, including some that we hadn't heard of before. Unfortunately, several of these new programs only make us more worried about TIA: If successful, they'll make surveillance and dataveillance even more powerful.

The Report also provides a few not-very-reassuring clues to the government's thinking about privacy and civil liberties. As far as the government's concerned, existing law protects our privacy. But there's little concern for data accuracy, and there's no mention of TIA's accountability to individuals. Also conspicuously absent is any concrete discussion of privacy or civil liberties issues in the actual use of TIA.

In short, the Report is a major disappointment. The government had an opportunity to open public discourse about TIA; for the most part, it chose to hide behind broad and vague generalities.


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Bay Area EFF Supporters: Help Test our Email Encryption Tutorial!

How would you like to help make encryption easier for you and your fellow Internet users? A crack team of EFF Interns is working on an email encryption primer and related tutorials, and we need some guinea pigs.

We are in the process of developing a PGP tutorial, a GPG tutorial (with related Eudora and Outlook plug-ins), and documentation for using Hushmail, a web based email encryption service.

We're looking for individuals who are willing test these tutorials at the EFF HQ (in San Francisco's sunny Mission District) and give us feedback on the experience. The more people we have helping at this stage, the better the product will be for the general public.

Here's when we'd need you:

  • Monday, June 9 at 1pm, 3pm, or 5pm
  • Tuesday, June 10 at 11am, 1pm, 3pm, or 5pm

Each volunteer who successfully completes the testing will get a vintage EFF T-shirt. Please send your first, second and third preference for a time slot so that we can make sure to accommodate everyone that would like to participate. If you really would like to volunteer but can't make these times, we may be able to arrange something else. Thanks in advance for your help!

Please contact Devin to make arrangements.

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Deep Links

Deep Links features noteworthy news items, victories, and threats from around the Internet.

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Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please visit our online calendar.

  • Sunday, June 8: Brewster Kahle and Will Doherty at Planetwork Conference on the "Digital Liberty" panel (9:00 - 11:00 AM):
  • Wednesday, June 11: Cory Doctorow at Silicon Valley WebGuild, San Jose, CA, "Civil Liberties and the Web." (6:00 PM - 8:00 PM):
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EFFector is published by:

The Electronic Frontier Foundation
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Ren Bucholz, Activist

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