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Podcast Episode: Antitrust/Pro-Internet

EFFector - Volume 17, Issue 30 - EFF Scores Landmark Win for P2P


EFFector - Volume 17, Issue 30 - EFF Scores Landmark Win for P2P

EFFector       Vol. 17, No. 30       August 19, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 302nd Issue of EFFector:

EFF Scores Landmark Win for P2P

Ninth Circuit Declares Grokster, Morpheus Not Liable for Infringement

Pasedena, CA - Today the Ninth Circuit Court of Appeals made a crucial decision in support of technology innovators by declaring that distributors of the peer-to-peer software Grokster and Morpheus cannot be held liable for the infringing activities of their users. The Electronic Frontier Foundation argued on behalf of Streamcast, the creators of the Morpheus software, in a case that pitted dozens of entertainment conglomerates against two small software companies.

The Ninth Circuit decision is based in part on the fact that P2P networks have significant non-infringing uses, and that they can help artists earn money. The ruling is similar to the Supreme Court's decision in the 1984 Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

"Today's ruling will ultimately be viewed as a victory for copyright owners. As the court recognized today, the entertainment industry has been fighting new technologies for a century, only to learn again and again that these new technologies create new markets and opportunities," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "There is no reason to think that file sharing will be any different."

The court's decision was unanimous.

"This is a victory for innovators of all stripes," added von Lohmann. "The court's ruling makes it clear that innovators need not beg permission from record labels and Hollywood before they deploy exciting new technologies."

It is likely that the entertainment companies will appeal the Ninth Circuit's decision to the Supreme Court.


For this release:

Hypocrite, Thy Name Is Real

By Fred von Lohmann
EFF Senior Intellectual Property Attorney

In the latest development in the ongoing spat between RealNetworks and Apple over the iPod, RealNetworks has launched its "Freedom of Music Choice" campaign. "Consumers are getting a raw deal with the status quo in digital music, which limits healthy, open competition that drives down prices and encourages innovation," trumpets the campaign website.

Lovely sentiment. We couldn't agree more. But it's not as if Real is doing anything to change that status quo. After all, Real keeps its customers in DRM shackles that look pretty similar to Apple's FairPlay. In fact, Real's beef with Apple is really about keeping those shackles on its customers when they move songs to the iPod.

If Real actually cared about "Freedom of Music Choice," it would be telling its customers to burn the downloaded music they purchase to CD, then rip to any DRM-free format they like (including MP3, WAV, or AAC, all of which play just fine on the iPod). That's a much better option than being dragged into a feud between Apple and Real.

Meanwhile, Real's record for promoting the "healthy, open competition" made possible by reverse engineering for interoperability is less than inspiring. Consider, for example:

  • In the RealNetworks v. Streambox case, Real was among the first litigants to invoke the DMCA to squash a competitor trying to interoperate with Real's proprietary streaming software.
  • Real's own end-user licenses expressly forbid reverse engineering, even where that activity would be lawful as a fair use.
  • Real has been conspicuously silent when it comes to legislative reforms, like H.R. 107, that have been introduced to reform the DMCA to permit legitimate reverse engineering.

"RealNetworks has launched the 'Freedom of Music Choice' campaign to help consumers break the chains that tie their music devices to proprietary music downloads."

Yeah, right.

For this piece online, including links to relevant articles and documents:

Texas Secretary of State Backs Down, Agrees to Postpone Closed E-voting Meeting

Austin, TX - The Texas Secretary of State on Friday agreed to postpone indefinitely a closed meeting of the state's voting examiners after the ACLU of Texas and a Texas voter filed a lawsuit challenging the meeting's secrecy. The lawsuit, in which EFF is serving as co-counsel, charges that the practice of holding closed voting examiner meetings violates the state's Open Meetings Act.

"We are pleased that the voting examiners decided not to hold the closed meeting," said Adina Levin of ACLU-Texas. "However, we need to ensure that this will become a permanent solution instead of just a temporary one. We will proceed with this lawsuit until the public is guaranteed that the certification process of voting technology will be an open and transparent one."

For the full press release:

Previous release: "Sunshine Sought for Texas Election Systems Examiners":

Texas Safe Voting:

EFF Releases "Best Practices" Guide for Online Service Providers

As an intermediary, an Online Service Provider (OSP) is in a position to collect and store detailed information about its users and their online activities - details that may be of great interest to third parties, including attorneys pursuing cases, industry groups, and state and federal law enforcement. Under the USA PATRIOT Act, the government has greatly expanded powers to request this kind of information, and OSPs must respond to law enforcement requests to hand over private user data and logs. Yet complying with these demands threatens the OSP's goal of providing users with reliable, secure network services.

To help OSPs respond to these increasing legal pressures, EFF is producing a series of white papers outlining best data practices for OSPs. The first paper provides suggestions, both technical and legal, for balancing the needs of OSPs with protection for users' privacy and civil liberties.

EFF: Best Practices for Online Service Providers

EFF Weighs in on Plan to Improve Public Access to Government Documents

The US Environmental Protection Agency is developing a new online system that will eventually contain records of all regulatory proceedings undertaken by all federal agencies, as well as provide the public with the means to submit comments online. Access to government documents is key to a functioning democracy, and EFF has been participating in the EPA proceeding to determine the system's design (EPA Docket No. OEI-2004-0002). After attending public hearings, we submitted comments on Monday to supplement the record. We propose that the EPA enable bulk data retrieval and use modern technologies such as web services interfaces and RSS feeds.

"We're glad that EPA is involving the public in the design of the docket management system. As advocates, we'll make extensive use of this system ourselves," said EFF Staff Technologist Seth Schoen. "The right technology choices here would help make the regulatory process much more transparent for the public."

EFF comments in EPA proceeding:

EFF Welcomes Four New Hires

Organization Grows with Addition of Attorneys, Technical, and Membership Staff

San Francisco, CA - EFF is pleased to announce the addition of four new staff members. Kurt Opsahl and Matt Zimmerman join the legal team as staff attorneys, while systems administrator Matt Peterson brings expertise to the technical team and membership coordinator Kyle Pedersen takes the helm of EFF membership development.

Kurt Opsahl graduated from the Boalt School of Law at UC Berkeley and comes to EFF from law firm Perkins Coie, where he was an associate. There he represented technology clients on intellectual property, privacy, defamation, and other online liability matters, including working on Kelly v. Arribasoft, MGM v. Grokster, and CoStar v. LoopNet. Opsahl is proud to have been called a "rabid dog" by the Department of Justice For his work responding to government subpoenas. As staff attorney at EFF, he will work on privacy, surveillance, and other constitutional issues.

Matt Zimmerman earned his J.D. from Columbia University. Prior to joining EFF, he worked as the Privacy Fellow at the public interest law firm The First Amendment Project, where he specialized in privacy and open government issues; previously, he worked at law firm Morrison & Foerster, where he focused on commercial litigation matters including patent and technology licensing disputes. At EFF, Zimmerman will be the first staff attorney to dedicate himself entirely to electronic voting issues.

Matt Peterson, EFF's systems administrator, comes to us from Surf and Sip, a wireless networking company. He is one of the founders of the Bay Area Wireless User Group (BAWUG), and has spent several years working with nonprofit organizations in Asia to set up wireless networks for regions with little or no Internet access.

New membership coordinator Kyle Pedersen comes to EFF from the Urban Justice Center in New York, where he worked as an activist on mental health issues. He has also been active in tenant's rights causes. At EFF, he will be in charge of serving our existing members and inspiring others to join us.

"EFF continues to attract some amazing talent," said EFF Executive Director Shari Steele. "Kurt and Matt are both experienced attorneys who are already up to speed on our issues. And Matt and Kyle are both young and enthusiastic, as well as well-suited to serve in their current roles."

With these new hires, EFF brings its lawyer total up to nine, an unprecedented number for the organization. "We have found that our legal expertise is needed on so many fronts," added Steele. "We're ready to continue to make a difference as law develops in the digital world."

For this release:


miniLinks features noteworthy news items from around the Internet.

E-voting Mistake Caught on Paper
A demo of a Sequoia e-voting machine demonstrated more than was originally intended - it showed that a voter-verifiable paper printout is an effective way to catch the machine's errors:,2645,64569,00.html

Blacklisted Lately?
The ACLU's Anthony Romero points out that his name appears on a government terrorist watchlist - and that yours could, too:
(Registration unfortunately required.)

CBO: Copyright Issues in Digital Media
A recent report by the Congressional Budget Office argues that "revisions to copyright law should be made without regard to the vested interests of particular business and consumer groups":

NYT on the Induce Act
The New York Times praises the CBO report for its even-handedness and criticizes Congress for kowtowing to the recording industry on the Induce Act:
(Registration unfortunately required.)

Teaching Kids About Copyright
The American Library Association is launching an education campaign that balances the copyright-maximalist propaganda pushed by Hollywood:,1412,64543,00.html

iPod vs. the Cassette
A tongue-in-cheek look at the relative merits of the cassette tape and the iPod. We can't believe they failed to mention that you can make unlimited noncommercial copies of music onto analog media without fear of copyright infringement lawsuits, per the Audio Home Recording Act of 1992!

DVD Jon Forces Apple to Play with Others
"DVD Jon" Johansen has figured out how to make Apple's AirportExpress play music from non-Apple devices. In order to make it work, he had *added* encryption to the streams of the other devices:
(San Jose Mercury News)


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