EFFector Vol. 17, No. 41 November 11, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 312th Issue of EFFector:
- E-voting Forensics: What They Can - And Can't - Tell Us
- EFF, Nonprofits Challenge Secret Government Blacklists
- StreamCast and Grokster File Supreme Court Brief
- EFF Appeals Anti-Competitive BnetD Ruling
- Op-ed - Dumb and Dumber: Why the Movie Industry Shouldn't Do as the Recording Industry Has Done
- EFF Seeks Webmaster Who Wants to Make a Difference
- MiniLinks (20): Suing 12-Year-Olds Is *So* 2003
E-voting Forensics: What They Can - And Can't - Tell Us
The media are buzzing about whether the electronic voting systems used in this election really worked as "smoothly" as they appeared to work. Is it possible that some machines malfunctioned in ways that skewed results? Could problems like the 4,530 votes lost in North Carolina due to a data storage error be only the tip of the e-voting iceberg?
The good news first: From what we can tell, it is unlikely that the problems with touchscreen machines changed the outcome of the presidential race. But that doesn't make it impossible, and EFF is still looking into some problems in Ohio and elsewhere that could be very important.
The bad news: Let's suppose for a moment that the picture of the presidential race stays unchanged. Does this mean, as some vendors are claiming, that the machines "passed the test"? In a word, no. If the election had been closer in such key states as Florida, Pennsylvania, New Mexico, or even Ohio, the problems we saw could easily have thrown this election into chaos, and that chaos could have affected either candidate.
It will take some time to analyze the information collected in the Election Incident Reporting System (EIRS), but regardless of what we find, the current figures show that machine malfunctions were the third most common voting problem reported. And recent reports demonstrate that not all problems were obvious. EFF is therefore moving to examine the machines that exhibit the most troubling malfunctions, with the goal of determining whether what we've seen indicates even more serious or widespread problems.
Which brings us to the ugly news: There's one story about this election that we'll never know - what happened inside the machines that do not have a paper trail. It's somewhat reassuring that, in most instances at least, final exit polls and other external systems give us roughly the same picture that the election results do. But suppose that wasn't the case? This is what audit trails are for. The figures in cooked books often look perfectly fine; so would a cooked vote tally. In this election, we are forced to take it on faith that our votes were recorded in the way that we intended. But as the late former President Ronald Reagan noted long ago, when important issues are at stake, we need to both "trust" and "verify." That's why the battle continues to persuade election officials nationwide to adopt systems that are 1.) verified by the voter, and 2.) can be audited after the fact.
To learn more about the e-voting problems that have been
reported so far and EFF's concerns, check out the links
below, including the audio recording of the joint EFF
and Verified Voting Foundation (VVF) press tele-conference
held on Election Day.
For the original version of this piece online:
They Said/We Said: EFF E-voting Conference on MP3:
The Nation: "A Stolen Election?"
EFF, Nonprofits Challenge Secret Government Blacklists
Funding for Charities Should Not Be Tied to Screening
Washington, DC - EFF this week joined the American Civil Liberties Union (ACLU) and close to a dozen other nonprofit organizations in filing for an injunction from the US District Court in Washington, DC, to stop the federal government from requiring charities to use blacklists in order to receive payroll donations from federal employees. The groups argue that the new requirement, which was implemented without any notice or public comment period, is not authorized by statute and violates the First and Fifth Amendments.
The Combined Federal Campaign (CFC) enables federal employees to contribute easily to their favorite nonprofit organizations through automatic payroll deductions. In 2003 alone, this program brought over $248 million to thousands of charities. Earlier this year, the government for the first time began requiring all organizations participating in the CFC to certify that they have screened every employee and expenditure against a series of blacklists created by the government on the basis of secret information. Charities that refuse to sign the certification cannot participate in the CFC, even if they meet all other requirements.
"The government can't force charities to become its 'anti-terrorism enforcers' simply because federal employees donate to those charities," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "EFF refuses to violate the privacy of its clients and employees by screening them against secretly compiled blacklists. It was wrong during the McCarthy era, and it's wrong now."
EFF participated in the CFC program for two years prior to the blacklist certification requirement but withdrew from the program earlier this year in protest.
For this release:
StreamCast and Grokster File Supreme Court Brief
Judicial Restraint Urged at High Court
Washington, DC - Peer-to-peer (P2P) software companies StreamCast Networks and Grokster Ltd. this week filed a joint brief urging the US Supreme Court to leave undisturbed the landmark MGM v. Grokster ruling handed down by the Ninth Circuit Court of Appeals earlier this year.
The case pits the world's largest music and movie studio companies against StreamCast and Grokster, two small start-up companies responsible for the Morpheus and Grokster P2P file-sharing software products. The entertainment companies have been seeking to hold StreamCast and Grokster liable for copyright infringements committed by the users of their software. In April 2003, a federal district court in Los Angeles rejected that claim, reasoning that the Morpheus and Grokster software products had many noninfringing uses, much like photocopiers and VCRs. That ruling was upheld by a unanimous 3-judge panel of the Ninth Circuit Court of Appeals in August 2004. But in October, the entertainment industry asked the Supreme Court to overturn the lower court rulings.
"The Ninth Circuit got it right and applied the Supreme Court's own precedent in the Sony Betamax case," said Fred von Lohman, senior EFF staff attorney. "There is no reason to revisit the unanimous ruling of the Ninth Circuit and have judges second-guessing innovators."
The case is Metro-Goldwyn-Mayer v. Grokster, Supreme Court Docket No. 04-480. The Court is expected to decide whether it will take the case before the end of the year.
For the full press release:
StreamCast and Grokster brief:
EFF Appeals Anti-Competitive BnetD Ruling
EULAs, DMCA Should Not Trump Right to Reverse Engineer
St. Louis, MO - EFF has appealed a District Court decision in St. Louis that held that programmers are not allowed to create free software designed to work with commercial products.
The 8th Circuit Court of Appeals will determine whether three software programmers who created the open source BnetD game server - which interoperates with Blizzard video games online - were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF, co-counsel for the defendants, will argue that programming and distributing BnetD is a fair use and therefore violates neither Blizzard's EULA nor the DMCA's prohibitions.
As it stands, the lower court's decision makes it unlawful in most cases to reverse engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own. EFF considers this situation unacceptable and will use the appeal to explain why EULAs and the DMCA should not be allowed to trump fair use forms of reverse engineering when undertaken to create new products.
"This is a case of critical importance for the software industry," said EFF Staff Attorney Jason Schultz. "Allowing companies like Blizzard to lock out competition and complementary innovation will destroy future generations of products and services. The Internet itself is simply a collection of complementary software programs, and this ruling threatens the existence of all of them."
Fortunately, two recent courts have already recognized that it's unfair to outlaw competition under the DMCA. EFF hopes that the judges in the 8th Circuit will follow in the path of the Lexmark and Skylink cases, which held that the DMCA cannot be used to limit the aftermarket sales of printer cartridges and garage door openers.
For this release:
Op-ed: Dumb and Dumber
Why the Movie Industry Shouldn't Do as the Recording Industry
By Donna Wentworth
Hollywood is on a roll. Last year, the major American movie studios raked in a record-smashing $41.6 billion in revenues. Box office totals were the second-largest ever in the history of the movie business. And it looks like 2004 will be even more profitable: When the third Harry Potter movie was released in June, domestic box office totals for the month broke the $1 billion mark - beating the previous monthly record of June 2003 by 14 percent.
But you wouldn't guess any of that from the recent headlines. Claiming that rampant file sharing is poised to destroy the movie business, the Motion Picture Association of America has joined the recording industry in what can only be described as a politically driven, anti-consumer maneuver: launching a litigation campaign against the tens of millions of people who use peer-to-peer technology.
Not that this tactic works. Just ask the recording industry. After more than 6,000 lawsuits, the file-sharing numbers are as high, or higher, than they've ever been. The MPAA's "preemptive strike" agenda will likewise fail to dampen the hunger for peer-to-peer satisfaction. More importantly, however, these lawsuits aren't here to pay actors, directors, or other filmmakers. They are here as part of a PR effort, legally destroying individuals chosen at random to maximize "shock-and-awe" in the press.
Say goodbye to Mr. Nice Guy. There's a billion-dollar business at stake.
The irony, of course, is that Hollywood's billions come from the very people and technologies it has targeted.
Consider the success story of the video rental market. Hollywood spent eight fruitless years trying to ban the VCR, insisting to Congress and the courts that home video recorders would strangle the movie business. But after the Supreme Court ruled in 1984 that VCRs were legal, Hollywood opened another door and found a business model to take advantage of that reality. Today, the market for pre-recorded media exceeds the box office take, making video rental and sale the most vital piece of the studios' bottom line.
Do people still use VCRs to make and sell illegal bootleg copies of movies? Sure. But that hasn't done a single thing to stop the vast majority of people from renting videos or going out to the movies. In fact, most of us do both - repeatedly.
Ah, you ask, but isn't "digital" piracy different? Well, let's take a look at another success story: the DVD. Thanks to the pre-existing legitimate videotape rental market, it was perfectly legal and convenient from the get-go for anyone to rent or purchase a DVD down at the local Blockbuster. This has been, and remains, hugely profitable for the studios. Meanwhile, there's no credible evidence to suggest that file sharing has cut into either home rental or box office sales, and limits on bandwidth will throttle convenient downloading for many years to come. So what problem is it exactly that the lawsuits will fix? They won't help movie sales and rentals, and they won't help the studios develop a successful Internet market.
If the cliche problem is a company that can't learn from its mistakes, Hollywood suffers from the opposite problem: It can't seem to learn from its own success. Rather than turn to new business models, the studios are asking us to use our courts and our cops to bust our neighbors, imposing harsher penalties than the ones they'd suffer if they actually held up a video store at gunpoint and robbed it empty. Not only is this unfair, it's a dead end. And we shouldn't have to pay for their losing strategy.
EFF Seeks Webmaster Who Wants to Make a Difference
To apply, send a cover letter and your resume with links to some samples of your work to firstname.lastname@example.org We request that you send these materials in a non-proprietary format, such as an ASCII text file. No phone calls please!
miniLinksminiLinks features noteworthy news items from around the Internet.
Suing 12-Year-Olds Is *So* 2003
After all, the 2004 version of the War on File Sharing sues 10-year-olds:
The Postal Service to Promote the Postal Service:
In what has to be among the most bizarre-yet-cool trademark infringement settlements ever, The Postal Service, the pop sensation whose song is covered on the excellent "Garden State" soundtrack, will be granted free license to use the name "The Postal Service" in exchange for promoting the use of good old-fashioned snail mail:
(NYT; registration unfortunately required.)
While Garbage Service Sits and Rots:
At the same time, a San Francisco garbage collection company called "Sunset Scavenger" used a trademark complaint to force Wide Hive Records to change the title and cover of the DJ Zeph CD, "Sunset Scavenger." Because that's a much better deal for everyone:
Salon on the Indymedia Whodunnit
The servers were seized; the servers were returned. Salon speculates about what happened in between:
(Subscription or ad-view nonsense required.)
Canadians Try to Stop US Data-Mining at the Border
Our friends at the Canadian Internet Policy and Public Interest Clinic filed a protest against Abika, a US company that assembles and sells dossiers on Canadian citizens:
Iran Continues Net Crackdown
More journalists have been jailed and sites have been blocked in the government's ongoing campaign to squelch free speech and pro-democracy propaganda:
(NYT; registration unfortunately required.)
E-voting Tally: Supersize Me!
One Ohio precinct gave President Bush 4,258 votes to John Kerry's 260. The trouble is that only 638 people voted in that precinct on election day:
(The Columbus Dispatch)
Post-Election Pondering About E-voting
Some lost votes and others seemed to pull them out of the air, but this article focuses on the fact that the machines didn't spontaneously combust:
E-voting Machine Loses 4,500 Votes
Good thing that mandate wasn't hanging on the outcome in North Carolina!
A Third of Net Traffic Devoted to BitTorrent
So says a new study:
Privacy Tips for ISPs
Internet News with a story on EFF's recently published white paper on how ISPs can protect their subscribers' privacy:
UK Artists Protest "Swindle" of the Public Domain
As UK Rocker Cliff Richard puts it, "Many artists rely on one hit record as their sole source of income, but now they will earn nothing. I feel a responsibility to speak out for them." So in other words, if a single hit supports some artists for *five decades,* the public really ought to sign up to subsidize them for another two. Wow:
Mexico Takes Lead in Global Copyright Extension Contest
The country's Congress has extended the term of copyright to life + 100 years:
(World Copyright Law Report)
iTunes "Update" Breaks Other Apps
The new version disables iPod Download, an application that lets people - *gasp* - take music off of their iPods (very useful if your computer crashes or you simply want to keep your songs on the 'Pod):
Japan "Updates" Copyright Law
"Update" is our new favorite word! Here, it means "dial back personal rights and criminalize common practices like importing legitimate - but cheaper - music from other countries":
Sony BMG Inhales
The company has arranged a deal with Grokster to offer free and paid music via the P2P company's network:
Homeland Security Targets Sales of Fake Rubik's Cube
You know that terrorists are on the run when DHS can send agents to investigate knock-off toys:
(OregonLive.com; registration unfortunately required.)
"Gone With the Wind" Heirs Target Project Gutenberg
Margaret Mitchell's estate continues its long, sad fight to keep the classic "safe" from the public domain and innovative uses:
Bush Campaign Site Blocks Foreigners
Back when elections were all the rage, the Bush campaign blocked non-US IP ranges from accessing its site. Now everyone is free to surf again. We still don't get it:
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