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EFFector - Volume 17, Issue 6 - Tell MEPs to Reserve Tough New IP Enforcement Tools for Real Criminals


EFFector - Volume 17, Issue 6 - Tell MEPs to Reserve Tough New IP Enforcement Tools for Real Criminals

EFFector       Vol. 17, No. 6       February 25, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 281st Issue of EFFector:

Action Alert: Tell MEPs to Reserve Tough New IP Enforcement Tools for Real Criminals

The European Parliament is poised to adopt a controversial directive on Intellectual Property Rights Enforcement that would give rights-holders incredibly powerful tools in the fight against intellectual property infringers. While this might sound like a good idea at first, a closer look reveals that the directive doesn't distinguish between unintentional, non-commercial infringers and for-profit, criminal counterfeiting organizations. If this directive is adopted, a person who unwittingly infringes copyright - even if it has no effect on the market - could potentially have her assets seized, bank accounts frozen and home invaded. Don't let these tactics become the latest weapon in intellectual property rights-holders' destructive war on "piracy."

EFF encourages its European supporters to write to their Members of the European Parliament (MEPs) to urge them to limit these harsh enforcement measures to cases in which infringement is undertaken intentionally and for commercial purposes.


EFF Releases File Sharing Recommendations

Suggests Voluntary Collective Licensing at Future of Music Event

San Francisco, CA - EFF has announced the release of a report outlining its favored solution to the music file-sharing controversy. The EFF white paper recommends that the music industry adopt a model similar to that used by radio stations today, known as voluntary collective licensing. The proposal suggests a way that artists and copyright holders can get paid and music fans can share music freely at a reasonable cost.

"Voluntary collective licensing aligns the interests of the music industry with music fans," said EFF Senior Intellectual Property Attorney Fred von Lohmann, "The more people share music, the more artists and copyright holders should receive compensation for their creations."

The report, entitled "A Better Way Forward: Voluntary Collective Licensing of Music File Sharing," is part of the organization's "Let the Music Play" campaign.

Mr. von Lohmann is presenting the paper today at the Future of Music Coalition's Music Law Summit West.


Court Endorses Ban on DVD Copy Technology

EFF Urges Digital Copyright Law Reform

San Francisco, CA - Consumers suffered a setback to their digital rights last week when a California federal court sided with the major motion picture studios in ruling that a company creating tools people can use to make backup copies of their DVDs is liable under copyright law. Citing the Digital Millennium Copyright Act (DMCA), the court ordered 321 Studios, creator of DVD backup tools, to stop selling its DVD Copy Plus and DVD-X COPY products within seven days. 321 Studios plans to appeal the ruling.

"In passing the DMCA, Congress certainly did not intend to eliminate all consumer copying," said EFF Legal Director Cindy Cohn. "This court's reading of the statute in the 321 Studios case allows a ban on any tool that enables consumers to copy their DVDs."

"The great popularity of 321 Studios' products demonstrates a legitimate consumer desire to use DVDs with the same rights they have had with earlier technologies," added EFF Senior Intellectual Property Attorney Fred von Lohmann. "The court decision in the 321 Studios case underscores the need for DMCA reform as proposed in the Boucher-Doolittle and Lofgren bills."


Trademark Law Shouldn't Prejudice Internet Ads

1-800 Contacts Can't See the Big Picture

New York, NY - EFF on Thursday asked a federal appeals court to reverse a lower court decision involving the right to provide online advertisements during web browsing.

Online contact lens distributor 1-800 Contacts, Inc., won an initial trademark violation lawsuit against, Inc., in October 2002, claiming that's SaveNow software confused potential customers by generating ads related to the words and web addresses people enter into online search engines and web browsers. appealed the lower court's ruling in December 2003 explaining that its ads - known as pop-ups, pop-unders, and other types - are all generated in a manner that does not confuse web users.

"If I'm walking to my neighborhood drugstore to purchase contact lenses and on the way I see a pharmacy with lenses at half the price, I should be able to stop by and take a look at the competition before making my purchase," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The lower court failed to consider common sense in making its decision to prevent WhenU from placing ads near other company's websites, and we believe the appeals court will recognize that competitive non-deceptive advertising online is not a violation of trademark law."


Let the Sun Set on PATRIOT - Section 206:

"Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978"

Welcome to part two of "Let the Sun Set on PATRIOT," an EFFector series on the battle to let some of the most troubling provisions in the USA PATRIOT Act expire, or "sunset." Each week, we profile one of the 13 provisions set to expire in December of 2005 and explain in plain language what's wrong with the provision and why Congress should allow it to sunset. This week we look at section 206, which allows the FBI to conduct "John Doe" roving surveillance.

What Section 206 Does

Imagine that the FBI could, with a single search warrant, raid every house or office that an individual suspect has visited over an entire year - every single place, whether or not the residents themselves are suspects. Suppose that the FBI could do this without ever having to identify the suspect in question. This is what Section 206 allows in the communications context.

Section 206 authorizes intelligence investigators to conduct "John Doe" roving surveillance - meaning that the FBI can wiretap every single phone line, mobile communications device or Internet connection that a suspect might be using, without ever having to identify the suspect by name. This gives the FBI a "blank check" to violate the communications privacy of countless innocent Americans. What's worse, these blank-check wiretap orders can remain in effect for up to a year.

How Section 206 Changed the Law

Section 206 amended the Foreign Intelligence Surveillance Act (FISA) so that a wiretap order issued by the secret FISA court no longer has to specify what type of communications that the order applies to. This allows investigators to engage in "roving" surveillance, using a single wiretap order to listen in on any phone line or monitor any Internet account that a suspect may be using - whether or not other people who are not suspects also regularly use it.

Why Section 206 Should Sunset

Roving wiretaps are allowed in regular criminal investigations, so it might seem reasonable that the PATRIOT Act made them available to intelligence investigators. But FISA wiretaps lack many of the safeguards that prevent abuse of criminal wiretaps. For example, orders are issued using a lower legal standard than the "probable cause" used in criminal cases, are subject to substantially less judicial oversight and typically last at least three times longer than criminal wiretaps. Surveillance targets are never notified that they were spied on. Most important, and also unlike criminal wiretaps, the FISA court can issue "John Doe" wiretaps that don't even specify the surveillance target's name.

The bottom line: further relaxing controls on FISA surveillance by adding roving capability is a recipe for abuse and likely violates the Fourth Amendment's requirement that search warrants "particularly describ[e] the place to be searched, and the persons or things to be seized."


EFF strongly opposes renewal of Section 206, and urges you to do the same. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352), a PATRIOT reform bill that would, among other things, limit the damage done to privacy by Section 206 - it would allow the FBI to get roving wiretaps on identified suspects, and John Doe taps on specific phone lines and Internet accounts, but not John Doe roving taps. We encourage you to visit EFF's Action Center today to let your representatives know you support the bill.

Next Week

We'll look at Section 207, which extends the period of time that FISA wiretaps can last.

Deep Links

Deep Links features noteworthy news items from around the Internet.

Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please visit:

  • March 2 - Seth Schoen speaks at OpenBSD Users Group
    San Francisco, CA
    7:00 p.m.-8:00 p.m.
  • March 3 - Fred von Lohmann speaks at Digital Piracy Dilemma Panel,
    London, UK
    9:00 a.m.-10:00 a.m.
  • March 4 - Gwen Hinze speaks at Digital Divide: New Currents in Digital Downloading,
    U.C. Davis School of Law
    6:00 p.m. - 9:00 p.m.

    Kevin Bankston speaks at the Southeast Cybercrime Summit,
    Kennesaw, GA
    1:00 p.m. - 4:30 p.m. "PATRIOT Act: Friend or Foe?"
  • March 5 - Wendy Seltzer speaks at National Education Association conference
    Seattle, Washington
    9:00 a.m. - 10:30 a.m. "Reclaiming the Internet"


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