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EFFector - Volume 17, Issue 43 - Court Blocks Movie Studios' Bulldozer Legal Strategy


EFFector - Volume 17, Issue 43 - Court Blocks Movie Studios' Bulldozer Legal Strategy

EFFector       Vol. 17, No. 42       November 19, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 314th Issue of EFFector:

Court Blocks Movie Studios' Bulldozer Legal Strategy

Northern California - A federal judge in California has put a roadblock in front of the movie studios' lawsuits targeting filesharers.

Last week, members of the Motion Picture Association of America (MPAA) filed 11 lawsuits against hundreds of people they accused of using file-sharing networks to share infringing copies of movies. They sued groups of "Does" identified by numerical IP address and requested discovery of names from the users' Internet Service Providers (ISPs). A Northern District of California judge found this bulldozer approach improper, ordering that the case for Does 1-12 should be put on hold for all but one of the defendants.

Judge William Alsup ruled that because claims against the 12 defendants were unrelated, yoking the defendants together into one big case was improper. "Such joinder may be an attempt to circumvent the filing fees by grouping defendants into arbitrarily-joined actions but it could nonetheless appear improper under Rule 20," the order states. The Electronic Frontier Foundation has filed friend-of-the-court briefs objecting to similar misjoinder in many of the cases filed by the Recording Industry Association of America (RIAA) against alleged infringers.

"This decision helps to give due process rights to the Internet users accused of infringement," said EFF Staff Attorney Wendy Seltzer. "Lumping them together makes it more difficult for everyone to defend against these claims." EFF is also concerned about the movie studios' failure to produce evidence of infringement against even Doe #1 in this case.

For this release:

Court order in Twentieth Century Fox Film Corp. v. Does 1-12:

EFF Announces New Advisory Board

Legal, Technical Experts to Assist with Long-Term Organizational Strategies

San Francisco - EFF is proud to announce the formation of its first Advisory Board, a group of legal and technical experts who will assist in shaping long-term strategies and goals for the civil liberties organization. The Advisory Board will meet regularly with EFF staff and Executive Board members to offer guidance and outside perspectives.

"EFF is thrilled to have such wonderful thinkers, activists, and community leaders joining us," said EFF Executive Director Shari Steele. "We look forward to working with them and benefiting from their wisdom."

Added EFF Executive Board Chairman Brad Templeton, "This is an exciting time in EFF's history. We're bigger than we've ever been, and we're able to take on many new cases and issues. I welcome the Advisory Board's help in shaping what EFF will become as we move forward."

The Advisory Board brings together a broad range of backgrounds and points of view:

  • Edward Felten is a professor of computer science at Princeton University and author of the highly respected tech policy blog, "Freedom to Tinker" (

  • Michael Froomkin is a professor of law at Miami Law School and an expert in Internet law and constitutional law.

  • Paul Grewal is a partner at Day Casebeer and an expert in high tech law. He is admitted to practice before various federal courts, as well as before the US Patent and Trademark Office.

  • Jim Griffin is the CEO of Cherry Lane Digital, a company dedicated to the future of music and entertainment delivery. Griffin also founded the Pho list, where thousands of members meet to discuss digital media.

  • David Hayes is a partner in the Intellectual Property Group at Fenwick and West LLP and is an expert on copyright law and digital media. He has served as counsel for a number of precedent-setting software copyright infringement cases, including Apple v. Microsoft and the Napster case.

  • Mitch Kapor is one of EFF's founders, as well as the founder of the Lotus Development Corporation. He is also founder and chair of the Open Source Applications Foundation (OSAF).

  • Mark Lemley is a professor at Stanford Law School and is director of the Stanford Center for Law, Science and Technology. He is the author of several books and has testified before Congress and the FTC on patent, antitrust, and constitutional law matters.

  • Eben Moglen is Professor of Law at Columbia University, and pro bono General Counsel of the Free Software Foundation. He was a law clerk to Justice Thurgood Marshall of the US Supreme Court, holds a PhD in legal history, and is the author of many articles and essays about the free software and free culture movements.

  • Deirdre Mulligan is an Acting Clinical Professor of Law at the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley. She focuses on the interplay between politics and the Internet and was previously on staff at the Center for Democracy and Technology.

  • Michael Page is a Partner at Keker & Van Nest LLP, where he focuses on intellectual property litigation. He has represented numerous high-profile clients and recently won a California Attorney of the Year award.

  • Michael Traynor is a partner at Cooley Godward LLP, where he specializes in intellectual property, business, and First Amendment litigation. He is president of the American Law Institute and has argued before the US Supreme Court.

  • Jim Tyre is an attorney and EFF fellow who has represented free speech interests for more than 20 years. He is a founder of The Censorware Project, which provides the public with information about censorware products.

For this release:

Nominate a Pioneer for EFF's 2005 Pioneer Awards

EFF established the Pioneer Awards to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. This is your opportunity to nominate a deserving individual or group to receive a Pioneer Award for 2005.

The Pioneer Awards nominations are open to individuals and organizations from any country.

All nominations are reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

This year's award ceremony will be held in Seattle in conjunction with the Computers, Freedom and Privacy conference (CFP), which takes place in mid-April.

How to Nominate Someone for a 2005 Pioneer Award:

You may send as many nominations as you wish, but please use one email per nomination. Please submit your entries via email to

We will accept nominations until February 1, 2005.

Simply tell us:

  • the name of the nominee,
  • the phone number or email address at which the nominee can be reached, and, most importantly,
  • why you feel the nominee deserves the award.

For more details on previous award winners and critera, see our Pioneer Awards website:

Let the Sun Set on PATRIOT - Section 223: "Civil Liability for Certain Unauthorized Disclosures"

Apologists justified the broad, civil-liberties corroding powers granted to the government under the USA PATRIOT Act by arguing that they would be used to put terrorists behind bars. Yet several provisions can be used against Americans in a wide range of investigations that have nothing to do with terrorism. Others are too vague, jeopardizing legitimate activities protected under the First Amendment. Worse, the Department of Justice has worked to expand and/or extend a number of these provisions - despite the fact that they were sold to the public as "temporary" measures and are scheduled to expire, or "sunset," in December of 2005.

In our "Let the Sun Set on PATRIOT" series, we profile these provisions with the goal of explaining how they harm your rights and should therfore be allowed to expire. But Section 223 is an exception to the rule. It bucks the trend of PATRIOT provisions by actually *adding* new checks and balances on government surveillance rather than removing them.

For this reason, EFF supports its renewal.

How Section 223 Changed the Law

There are multiple statutes under which the government can conduct communications surveillance, including the Wiretap Act, the Electronic Communications Privacy Act (ECPA), and the Foreign Intelligence Surveillance Act (FISA) - all of which were expanded by PATRIOT. But PATRIOT Section 223 added significant new checks on the government’s surveillance powers under those statutes.

Specifically, it:

  • made clear that the same civil penalties that apply to unauthorized spying under the Wiretap Act and ECPA also apply to the unauthorized disclosure of communications that were legally obtained;
  • confirmed the authority of agency heads to discipline federal officers who willfully or intentionally violate the Wiretap Act or ECPA; and
  • created a new civil cause of action against the United States - now, victims of unlawful surveillance have a clear way to sue the government if it violates the Wiretap Act, ECPA, or FISA.

Why Section 223 Should NOT Sunset

The government's broad authority to conduct electronic surveillance requires equally powerful checks and balances to increase accountability and prevent abuse, especially since PATRIOT in many cases reduced court oversight and lowered the legal standards necessary for engaging in such surveillance. The new protections added by Section 223 certainly don't balance out the damage done to privacy by the rest of PATRIOT, but they are nevertheless valuable tools and should certainly be renewed.

For this analysis:

For previous analyses in the series:


miniLinks features noteworthy news items from around the Internet.

A Kinder, Gentler Copyright Bill?
Wired on the once-threatening omnibus copyright bill that's now a significantly less threatening minibus:,1283,65796,00.html

US Webcasting Proposal Canned
A plan that would have allocated a slew of new rights to webcasters while stripping a number from the public was shelved due to lack of support from other countries:
(The Age)

Statisticians Suspicious About Nov. 2nd Vote
A team of UC Berkeley researchers believes that voting machines in Florida may have improperly awarded President Bush up to 260,000 votes:,2645,65757,00.html
EFF petition for independent testing of e-voting machines:

Laser Printers Leave (Another) Paper Trail
Some color laser prints now have tiny, hidden dots to identify their printer of origin. These codes aren't visible to the naked eye, but the government uses them to track evil-doers:

God Squad Finds Loophole in CAN-SPAM
Religious spam is on the rise, and it's not illegal:

Weed to P2P: Let Your Garden Grow
The new service combines artist promotion, DRM-downloads, and public P2P nets to build buzz around artists:,1412,65774,00.html

Labels Try New Low-Plastic Business Model
Several majors are now trying out digital-only albums:
(Registration unfortunately required.)

Perfect 10 Claims Google Gives It Away
The porn dogs/litigation hounds at Perfect 10 are suing Google for linking to sites that allegedly infringe their copyrights. They failed in a similar effort to push the bounds of liability in a case against Visa and Mastercard earlier this month:
(Red Herring)
(John Palfrey blog)

Rabid SciFi Fans Asked to Not Download "Galactica"
The new "Battlestar Galactica" is being launched in the UK months before it hits North American airwaves, and many fans are downloading that which is not yet available to them (but necessary - oh, so necessary). The producers don't like it, believing it will hurt ratings:

If IP Policy Is Broken, Don't Adopt It
So advises law prof James Boyle in an excellent column about how intellectual property policy should be judged by whether or not it actually does its job - that is, provides an incentive for creation. A must-read:
(Financial Times)

Does Every Download = a Lost Sale?
That's the question asked - and partially answered - in this New York Times piece:
(Registration unfortunately required.)

Head of TechNet on the Hot Seat
Rick White leads the association of tech-sector executives, and he recently took questions about the next four years in tech policy:
(Washington Post)

Did Ashcroft Let Freedom Soar? Er, Not So Much
And he couldn't get security off the ground either. This article looks at how Ashcroft paid for a few safety improvements with a lot of our civil liberties:
(Salon; registration or silly ad-view required.)

Material from Internet Archive Deemed Admissible in Court
The Internet Archive is a big, free, semi-permanent record of what's been published on the Internet, and now it's being used as evidence - to both incriminate and exonerate - in court:

TSA's Hands-on Approach to Security
Some passengers complain that the Transportation Security Adminstration's physical searches are unnecessarily insensitive:
(Registration unfortunately required.)

Staff Calendar

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

December 2 -
Fred von Lohmann speaks at CATO City Seminar on "Liberty, Technology, and Prosperity"
Palo Alto, CA
10:30 a.m. - 2:30 p.m.


EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)

Donna Wentworth, Web Writer/Activist

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Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements & articles may be reproduced individually at will.

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