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EFFector - Volume 16, Issue 24 - Senator Brownback Introduces Digital Rights Bill

EFFector       Vol. 16, No. 24       September 19, 2003

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 263rd Issue of EFFector:

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Action Alert: Voice Your Concerns Over Airline "Security" Plan

The Transportation Security Administration (TSA) is offering the public a raw deal: fewer rights today for an illusory promise of security tomorrow. The Computer Assisted Passenger Pre-Screening System (CAPPS II) will allow travel authorities to access the personal information about each passenger available in both government and commercial databases. Using this potentially faulty data, authorities will then "tag" individuals according to how much of a security risk that they appear to pose - sacrificing the privacy and civil liberties of every traveler without any logical connection to how it will make us safer. Worse, it's possible that this sensitive data could then be used for other purposes. If this plan concerns you, send a letter to the Department of Homeland Security (DHS) to make your voice heard. There is a formal public comment period open until the end of September - take action now to urge balance between safety and civil liberties.

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IEEE Members & Security Professionals: Make Your Voice Heard on E-Voting Machines

EFF is urging IEEE members and others to write to IEEE to express concern about their draft electronic voting machine standard.

In the aftermath of the Florida election debacle, the IEEE took up the question of standards for voting equipment. It created a working group, called Project P1583, overseen by a Standards Coordinating Committee known as SCC 38. After passage by IEEE, this standard will go to ANSI for final validation. The substantive work is in its final stages, and the draft standard is currently out to ballot.

This particular vote is extremely important, because the IEEE sits on an advisory committee to the forthcoming Election Assistance Commission established by the Help America Vote Act (HAVA). This means that this standard could ultimately be adopted broadly throughout the United States. In a very real sense, the future of democratic systems in the U.S. and around the world are implicated by this standard -- the stakes couldn't be higher.

Unfortunately, instead of using this opportunity to create a performance standard, setting benchmarks for e-voting machines to meet with regards to testing the security, reliability, accessibility and accuracy of these machines, P1583 created a design standard, describing how electronic voting machines should be configured (and following the basic plans of most current electronic voting machines). Even more problematic, the standard fails to require or even recommend that voting machines be truly voter verified or verifiable, a security measure that has broad support within the computer security community.

To make matters worse, EFF has received reports of serious procedural problems with the P1538 and SCC 38 Committee processes, including shifting roadblocks placed in front of those who wish to participate and vote, and failure to follow basic procedural requirements.We've heard claims that the working group and committee leadership is largely controlled by representatives of the electronic voting machine vendor companies and others with vested interests.

EFF supports the IEEE in taking on the issue of setting standards for electronic voting machines. We also support the idea of modernizing our election processes using digital technology, as long as we maintain, or better yet, increase the trustworthiness of the election processes along the way. But this standard does not do this, and it must be reworked.

Please write to IEEE today to voice your concerns. A sample letter is available at the link below. The more personalized you can make it, the more effective it will be.

We also urge IEEE members and others to join P1583 and SCC 38, to make your concerns part of the formal process. IEEE officially encourages participation from a wide range of individuals -- let's make sure that happens here.

Please email ieee@eff.org with questions or concerns.

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Senator Brownback Introduces Digital Rights Bill

Electronic Frontier Foundation Supports Measure

Washington, DC - Senator Sam Brownback (R-KS) on September 16 introduced the Consumers, Schools, and Libraries Digital Rights Management (DRM) Awareness Act of 2003. The Electronic Frontier Foundation (EFF) supports the bill as an important step toward balancing the rights of the public and the interests of entertainment industries in the age of digital commerce.

Senator Brownback's DRM Awareness Act safeguards the privacy of Internet users by preventing copyright holders from compelling an Internet service provider (ISP) to disclose the names or other identifying information of its subscribers prior to the filing of a civil lawsuit. The Recording Industry Association of America (RIAA) has used subpoenas, rubber-stamped by court clerks, to obtain the identities of more than 1,600 Internet users.

"The digital age does not change Americans' basic rights to privacy and anonymity," said EFF Staff Attorney Wendy Seltzer. "Senator Brownback's bill ensures adequate court oversight is in place before copyright holders can force ISPs to disclose the identities of Internet users, restoring the notion that you are 'innocent until proven guilty' on the Internet."

The bill includes these provisions:

  • Requires conspicuous labeling of CDs, DVDs, and software that limits consumer uses with "digital rights management" (DRM) restrictions
  • Imposes strict limits on the Federal Communication Commission's ability to impose federal regulations (i.e., "tech mandates") on digital television innovators
  • Preserves the right to donate digital media products to libraries and schools

In addition, the bill helps protect the public's customary and fair use rights with respect to digital media.

"At a time when the entertainment industry is releasing unmarked copy- protected CDs into stores and asking the FCC to hobble innovators with federal regulations, Senator Brownback's bill recognizes that the federal government must act to protect the rights of law-abiding consumers and innovators," said EFF Legal Director Cindy Cohn. "We strongly support the Brownback bill."

Senator Brownback's bill joins a number of other bills introduced this year to protect the public's interest in a balanced copyright system, including those of Senator Ron Wyden (D-OR), Representative Zoe Lofgren (D-CA), and Representative Rick Boucher (D-VA).

EFF attempted to deliver to Congress a petition with over 37,000 signatures, gathered in less than a week, expressing public support for balance in copyright law, and requesting an invitation for EFF to participate in upcoming hearings. Due to hurricane Isabel, delivery was delayed. Senator Norm Coleman (R-MN) has begun investigations into the RIAA's subpoena tactics through the Senate Permanent Subcommittee on Investigations.

EFF is continuing to collect signatures on the petition and will deliver updates to Congress if the RIAA's lawsuit crusade continues.

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Morpheus Fights Entertainment Industry Appeal

Freedom to Innovate at Stake in MGM v. Grokster Case

San Francisco - On September 17, StreamCast Networks, Inc., developer of the Morpheus peer-to-peer (P2P) software, filed its brief in a closely watched appeal that may determine how much control copyright owners will have over development and use of new technologies.

In April 2003, StreamCast and fellow P2P software maker Grokster won a landmark victory against 28 entertainment companies. A federal court declared that the entertainment companies could not shut down P2P software makers for the copyright infringements of P2P software users when the software has significant legitimate uses. Examples of legitimate uses include sharing the music of artists like Janis Ian and the many others who permit sharing of live music, the works of Shakespeare, NASA photographs, films in the Prelinger archive, and other public domain materials.

The court ruled that the Morpheus software was no different from a VCR or photocopier, relying on a 1984 Supreme Court decision determining that Sony could not be held responsible for copyright infringement by users of the Betamax VCR.

The entertainment companies have appealed the case to the federal Ninth Circuit Court of Appeals in San Francisco.

"MGM v. Grokster is about whether copyright owners have the right to veto new technologies and stifle innovation," said Electronic Frontier Foundation (EFF) Senior Staff Attorney Fred von Lohmann. "All innovators have a great deal at stake in the conflict over P2P software."

EFF, along with co-counsel Charles Baker of the Austin, TX firm of Munsch, Hardt, Kopf & Harr, and StreamCast in-house General Counsel Matthew A. Neco, represent StreamCast in the MGM v. Grokster case.

The court has not yet scheduled oral argument on the case.

Links:

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EFF Is Looking for Attorneys to Represent RIAA Targets

EFF is looking for pro bono and low-cost attorneys who are willing to help the targets of the recording industry's file-sharing lawsuits. If you're interested, please send us a note with your contact information and the states to which you are admitted to practice. If you have been sued by the RIAA, we will try to find you counsel. Please direct all offers and requests to Henry Schwan: owlswan@eff.org

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Op-Ed: 'Amnesty' for Music File Sharing Is a Sham

By Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation.

(Note: this op-ed appeared in the September 10 issue of the LA Times)

No one can hold a candle to the music industry when it comes to squandering an opportunity. Having gotten everyone's attention by threatening to sue 60 million American file-sharers, flooding Internet service providers with more than 1,500 subpoenas and on Monday suing hundreds of individual file-sharers (or their parents) in federal court, the Recording Industry Assn. of America has blown it again.

Here's what the RIAA has proposed as its "solution" to file-sharing: an "amnesty" for file-sharers. Just delete the MP3s you've downloaded, shred those CD-R copies, confess your guilt and, in return, the most change- resistant companies in the nation will give you nothing. Oh, the RIAA promises not to assist copyright owners in suing you. But its major-label members reserve the right to go after you, as do thousands of music publishers and artists like Metallica.

In other words, once you have come forward, you are more vulnerable to a lawsuit, not less. This is more "sham-nesty" than "amnesty." What a waste.

Rather than trying to sue Americans into submission, imagine a real solution for the problem. What if the labels legitimized music swapping by offering a real amnesty for all file-sharing, past, present and future, in exchange for say, $5 a month from each person who steps forward?

The average American household spends less than $100 on prerecorded music annually. Assuming that many people will continue buying at least some CDs (a recent survey by Forrester Research found that half of all file-sharers continue to buy as many or more CDs as they did before catching the downloading bug), $60 per year for file sharing seems reasonable.

And such a plan would surely be more popular than the use-restricted and limited-inventory "authorized" alternatives. After all, the explosive growth of file-sharing is the strongest demand signal the record business has ever seen. The industry should embrace the opportunity instead of continuing to thrash around like dinosaurs sinking in hot tar.

Rather than asking music fans to brand themselves as thieves, the music industry could be welcoming them back into the fold as customers. Five bucks a month doesn't sound like much, but it would be pure profit for the labels. No CDs to ship, no online retailers to cut in on the deal, no payola to radio conglomerates, no percentage to KaZaA or anyone else.

Best of all, it's an evergreen revenue stream - money that would just keep coming during good times and bad.

It has been done before. This is essentially how songwriters brought broadcast radio in from the copyright cold. Radio stations step up, pay blanket fees and in return get to play whatever music they like. Today, the performing-rights societies like ASCAP and BMI collect the money and pay out millions annually to their artists.

It's easy to predict the industry's excuses: "We don't have all the rights." "Antitrust law prevents us from acting together." "What about my cut of the CD?"

Puh-leeze. You tell us your industry's on the brink of extinction: It's time to do something daring, not suicidal.

The labels can create a new business model that will serve as an example to other copyright owners. After all, it's no more radical than their threatening millions of Americans - customers - with ruinous litigation. What court or regulator is going to get in the way of a new approach that turns fans back into customers? Especially if the labels decide to offer a piece of the pie to artists - the only group with a credible claim to victimhood, even if most of their victimization has come at the labels' hands.

There are only two possible outcomes here: Either the music companies stop whining and woo the 60 million potential customers who have voted with their PCs for file-sharing, or some new companies will. There's no place in the world for companies that are bent on holding back the future.

Let's see a real amnesty, one that displays respect instead of spite for customers.

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EFF Seeks Experienced Development Director

The Electronic Frontier Foundation (EFF), a nonprofit civil liberties organization based in San Francisco, is seeking an energetic, enthusiastic, experienced, top-notch development director to head up its fundraising efforts. The ideal candidate will have at least five years of experience in a cause-based or political fundraising position. We're looking for someone who has a proven track record doing prospect development and stewardship, as well as identifying and applying for appropriate grant funding. You must have experience with setting up and managing endowments, planned giving campaigns, special events and membership campaigns. Excellent interpersonal, written, oral and organizational skills are also required. This is a fulltime, hands- on position working with a dedicated staff in a friendly work environment.

The development director reports to the Executive Director and has two direct reports--the membership coordinator and an executive assistant.

EFF is a 501(c)(3) organization, and we offer a competitive salary and compensation package.

To apply, please send a cover letter and your resume to devdir@eff.org. No phone calls please.

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EFF T-Shirt Contest!

EFF is holding a contest for the production of our next generation of member t-shirts. The shirt is going to be black, and it must convey the general EFF message (as opposed to focusing on any specific issues we're involved in). Other than that - the sky is the limit! Send us all of your funky ideas. The winner gets a free t-shirt and all the glory she can handle!

Send all t-shirt ideas to: kevin@eff.org Please send files under 100k to Kevin - we'll take larger submissions once we've gone through the first round of entrants. The contest ends on 9/30/03.

Thanks!

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Deep Links

Deep Links features noteworthy news items 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.
  • September 23 - Fred von Lohmann and Ren Bucholz will be at the University of California, Berkeley, for "File-Sharing 411"
    - 12:30 - 1:30 p.m.: File-Sharing 411 (166 Barrows, pizza provided)
    - 4:45 - 5:45 p.m.: File Sharing and Peer-to-Peer: Legal Issues and Alternatives (115 Boalt)
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Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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Editor:
Donna Wentworth, Web Writer/Activist
  donna@eff.org

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