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
- EFF Releases File Sharing Recommendations: Suggests Voluntary Collective Licensing at Future of Music Event
- Court Endorses Ban on DVD Copy Technology
- Trademark Law Shouldn't Prejudice Internet Ads
- Let the Sun Set on PATRIOT - Section 206
- Deep Links (13): Critics Hail, EMI Targets DJ Danger Mouse's "Grey Album"
- Staff Calendar: 03.02.04 - Seth Schoen speaks at OpenBSD Users Group, San Francisco, CA; 03.03.04 - Fred von Lohmann speaks at Digital Piracy Dilemma Panel, London, UK; 03.04.04 - Gwen Hinze speaks at Digital Divide: New Currents in Digital Downloading, Davis, CA
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.
- For the full media advisory
- EFF white paper: "A Better Way Forward: Voluntary Collective Licensing of Music File Sharing"
- EFF "Let the Music Play" campaign
- 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."
- For the full media release
- MGM v. 321 Studios case archive
- EFF Action Alert on Boucher-Doolittle bill
- EFF Action Alert on Lofrgren bill
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 WhenU.com, Inc., in October 2002, claiming that WhenU.com'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. WhenU.com 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."
- For the full media advisory
- ZDNet article on the amicus filing
- For the EFF amicus brief and more information on 1-800 Contacts v. WhenU and other trademark cases
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.
We'll look at Section 207, which extends the period of time that FISA wiretaps can last.
Deep Links features noteworthy news items from around the Internet.
- Supercomputer Barn-Raising in San Francisco
(Registration unfortunately required.)
A graduate class at USF hopes to build one of the world's fastest computers - flashmob-style.
- The Call of Music
(Registration unfortunately required.)
The cell phone call, that is. Sales of ringtones - those tinny, hyper-Muzak ditties that chirp out of mobile phones - generated over $3.5 billion last year, nearly all of which is pure gravy for the record labels.
- This Machine Kills Fascists
The first column in a new series by Siva Vaidhyanathan is a humane, thought-provoking essay on civil liberties during the war on terror.
- Anonymity and Accountability
(Dan Gillmor's eJournal)
Dan Gillmor examines anonymous speech in online conversations.
- DRM, E-Books and Why the Public Dislikes Both
Would you buy a book that disappeared after one reading? Neither would most folks. Publishers, however, don't appear to be on the same page.
- Youth to RIAA: You're Not the Boss of Me
(Registration unfortunately required.)
According to the LA Times, students are still using P2P, sarcasm.
- DirectTV Tangles Innocents in its Web
DirectTV has filed more than 20,000 lawsuits against purchasers of smart card technology:
East Bay Express (Registration unfortunately required.)
St. Petersburg Times
- Surveillance Down Under
The Aussie government is considering a bill that would dramatically increase the scope of communication surveillance for the world's smallest continent.
- Whoa, Cowboy - Let's See Some Papers
Nevada cowboy Dudley Hiibel was arrested after he refused to show a policeman his papers for simply standing by the side of the road. Now he's headed for a Supreme Court showdown: EFF amicus brief supporting Mr. Hiibel.
- Critics Hail,
EMI Targets DJ Danger Mouse's "Grey Album"
This mix of unauthorized samples from Jay Z's "Black Album" and The Beatles' "White Album" has both club-goers and music industry lawyers on their feet: http://www.greytuesday.org/
- U.S. High-Tech Spy Agency Has Low Profile
The Advanced Research and Development Activity (ARDA), which works for the government to research and develop tools for electronic surveillance, isn't listed in federal directories. It does, however, have a website.
- TIA Programs Scatter Like Roaches
(Newsday; registration unfortunately required.)
Congress killed the controversial super-surveillance program last year, so why are its individual parts still alive and kicking?
- TSA Flags One of Its Own
(Dallas Observer; registration unfortunately required.)
The same agency that forces you take off your shoes to prove you're not a terrorist mistakenly identified one of its own employees as a sex offender.
- DHS Reports on
JetBlue Scandal, House to Hold Hearings
(PDF; Department of Homeland Security)
The report isn't as penetrating as we'd like, but the hearings may be a first step toward government accountability for protecting our travel privacy: http://www.house.gov/transportation/aviation/schedule.html
Senator Susan Collins (R-Maine), meanwhile, has vowed publicly to dig deeper: "I obviously expect action to be taken, and I'm obviously going to follow up": http://www.govexec.com/dailyfed/0204/022304tdpm1.htm
For a complete listing of EFF speaking engagements (with locations and times), please visit: http://www.eff.org/calendar/
- 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,
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,
1:00 p.m. - 4:30 p.m. "PATRIOT Act: Friend or Foe?"
- March 5 -
Wendy Seltzer speaks at National Education Association conference
9:00 a.m. - 10:30 a.m. "Reclaiming the Internet"
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