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EFFector - Volume 18, Issue 10 - Alert: Stop the Trademark Act from Diluting Free Speech! Part 2


EFFector - Volume 18, Issue 10 - Alert: Stop the Trademark Act from Diluting Free Speech! Part 2

EFFector       Vol. 18, No. 10       March 25, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 326th Issue of EFFector:

Alert: Stop the Trademark Act from Diluting Free Speech!

Residents of 56 Nations and Members of Hundreds of NGOs Sign Petition to Open Meetings on Intellectual Property and the Developing World

Geneva - When the World Intellectual Property Organization (WIPO) earlier this month shut out many public interest groups from two April meetings about the impact of patent, copyright, and related regimes on the developing world, many civil society groups greeted the news with concern.

Most of the groups barred from the meetings, which will focus on whether WIPO should adopt a "Development Agenda," are public interest organizations with special expertise on issues of economic development. Without the input of these groups, the meetings can do little to further WIPO's understanding of how patents, copyright, and related rights affect developing nations.

Seeking a more balanced discussion of the Development Agenda, two Brazilian activists, Pedro de Paranagua Moniz and Pedro AD Rezende, as well as EFF's European Affairs Coordinator, Cory Doctorow, took action: they produced an open letter to WIPO on this issue and solicited comments on the public Internet.

As a result, this week more than 800 individuals and groups, including EFF, signed an open letter to WIPO urging it to allow more groups to participate in these historic meetings. Residents of 56 different nations signed on, along with members of non-government organizations (NGOs) ranging from a Brazilian AIDS health group to Yale University. The letter, called the "WIPO Manifesto for Transparency, Participation, Balance, and Access," asks that public interest NGOs be allowed to participate in the Development Agenda meetings as ad hoc observers and calls on WIPO to provide assistance in creating a global regime that facilitates access to knowledge.

"WIPO is undertaking a long-overdue and halting journey from a place where industrial interests meet to safeguard their marketplace advantages, to a place where the UN's humanitarian values hold center stage," said EFF's Doctorow. "This letter is the latest step in the important campaign to refocus WIPO on providing effective technical assistance that meets the real needs of its developing country members."

The open letter was delivered to Dr. Kamil Idris, Director General of WIPO, on March 23, 2005, with more than 800 signatories, and it is still open for signature.

For this release:

WIPO open letter:

More about the WIPO open letter:

The Development Agenda and why you should care about it:

EFF Appeals Ruling in Apple Case

Asks Court to Reaffirm Freedom of the Press

San Jose, CA - EFF this week filed an appeal in a case that has broad implications for the rights of reporters to protect the confidentiality of their sources.

Last week, a California Superior Court judge ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to Apple Computer, Inc. The court rejected EFF's request for an order to protect the identities of sources for the online news sites AppleInsider and PowerPage.

In its request for appeal, EFF argues that the First Amendment cannot be so easily waived. Many important news leaks, such as those revealing the dangers of cigarette smoking, can be claimed to be trade secrets by the companies seeking to stop them. Apple must also demonstrate that it has done an exhaustive search elsewhere for the information it seeks before targeting journalists with court orders. There is no evidence that Apple has done such an exhaustive search.

"The Superior Court's ruling exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporter's privilege may be overcome, and ignored the Stored Communications Act altogether," said Kevin Bankston, EFF staff attorney and Bruce J. Ennis Fellow. "There are strong protections for email privacy under federal law, especially when that mail is held by an ISP. Every email service provider should be concerned about correcting this dangerous precedent."

"The California courts have a long history of supporting and protecting the freedom of the press," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeal will now get the opportunity to correct a ruling that endangers all journalists."

The case is the result of Apple suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple subpoenaed Nfox, the ISP for publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid."

For the full release:

EFF's request for appeal: (PDF)

Apple v. Does FAQ:

More about Apple v. Does:

Leading Nonprofits Take Stand Against Business Method Patents

EFF Joins Fight to Promote Technology Access for Charitable Groups

Washington, DC - EFF this week joined the United Way of America, Network for Good, and the American Diabetes Association in endorsing the goals of the Nonprofit Innovation Alliance (NIA), a new organization formed to fight the growing threat that business-method patents pose to nonprofits that use the Internet for fundraising and advocacy.

Viewed by many to be a scourge in the for-profit world, business method patents would be even more so for the nonprofit sector. Instead of protecting a real technology invention, these patents typically cover a process of doing business on the Internet. Such patents, prone to abuse, could result in nonprofits spending much more out of every dollar raised on license fees to use the Internet for fundraising, communicating with constituents, advocating for public policies, and managing events. Alternatively, to avoid the impact of royalty payments to business method patent holders or the threat of being sued, nonprofits may be forced to choose sub-optimal technology solutions.

EFF supports the NIA because we believe nonprofits are best served if technology vendors and service providers work together to make the nonprofit industry a "business method patent-free zone." The NIA is a group of leading technology and consulting companies that provide products, services, and/or consulting to help nonprofits optimize their use of the Internet. Alliance members agree to cross-license any current and future business method patents on a royalty-free basis for the benefit of their nonprofit customers.

As an example of a business method patent that would threaten nonprofits, the following is a claimed invention described in a patent application filed with the US Patent and Trademark Office:

"A method for conducting a fundraising campaign by an organization or person over a wide-area network, comprising the steps of: hosting a website including a plurality of linked web pages, the website providing information about the fundraising campaign and soliciting potential donors to make a charitable contribution to the fundraising campaign; registering on the website; contacting third parties via email messages soliciting charitable donations; and providing one or more reports, on the website, including information on the status of the fundraising campaign." (Patent application entitled: "Method and system for an efficient fundraising campaign over a wide area network" application number 764787.)

"This application describes widely used practices for online fundraising, taking dead aim at the nonprofit sector," observed NIA Acting Secretary Shabir Safdar. "It is easy to see why a patent covering these types of claims is neither unique, novel, nor in the best interests of nonprofit organizations."

For the full press release:

More about the NIA:

EFF's Patent Busting Project:

CopyNight Reminder: Mashups & Martinis, March 29

This is a reminder that there will be CopyNight parties on Tuesday, March 29 - the night of the Supreme Court arguments in MGM v. Grokster. Join us in a toast to innovation in these five lovely cities (or add your own at the bottom):

Austin, TX

  • Club De Ville
  • 900 Red River (between 9th & 10th)
  • 6:30 p.m. onward
  • Hosted by Clay Bridges, austin(at)

New York, NY

  • Bar Nine
  • 807 9th Ave (between 53rd and 54th Sts), in the back room
  • 7:00 p.m. onward
  • Hosted by David Alpert, nyc(at)

San Francisco, CA

  • 21st Amendment Brewery & Cafe
  • 563 2nd St (between Bryant and Brannan)
  • 7:00 p.m. onward
  • Hosted by Ren Bucholz, sf(at)

Santa Monica, CA

  • The Mor
  • 2941 Main Street
  • 7:00 p.m. onward
  • Hosted by Michael Hart, santamonica(at)

Washington, DC

  • Timberlake's
  • 1726 Connecticut Ave NW
  • Metro: Dupont Circle
  • 6:00-9:00 p.m.
  • Hosted by Cory Smith, dc(at)

For more information and to sign up for email updates, check out

See you there!


miniLinks features noteworthy news items from around the Internet.

Canada Gears Up for Copyright Reform
Although the proposed legislation has been framed as Canada's "DMCA," Canadian copyright law expert Michael Geist suggests there's reason to hope it will be more balanced than expected:

Music Sales Rise in US
Even as P2P use blossoms. Who'd a thunk it?:

New Indian Patent Law Threatens Human Health
As a condition of joining the World Trade Organization, the country changed its patent laws in a way that will, among other things, reduce the availability of affordable pharmaceuticals, such as AIDS drugs, in poor countries that desperately need them: (NYT; registration unfortunately required.)

Napster Head Calls for Blanket Licensing
This interview at Engadget has the scoop:

Hatch Heads Copyright Panel
Senator Orrin "Induce Act" Hatch will continue to exert his influence in the copyright wars despite the fact that his time is up as chair of the Senate Judiciary Committee: (Washington Post)

Free Speech Goes Dutch in Scientology Case
Dutch Attorney General argues that copyright shouldn't trump political discussion:

Copyright Claim in Prisoner Abuse Scandal
Citing copyright law, several Navy SEALs have sued the Associated Press for publishing photos of the men in compromising positions with hooded & bloodied Iraqi prisoners: (Subscription or ad-view nonsense required.)

French News Agency Sues Google
The lawsuit casts a shadow over Internet search engines and fair use, the legal doctrine on which they rely: (AP)

Remixing the News
A new study from the Columbia University says of blogs and traditional news media: "In effect, Americans are shifting from being consumers of news to proactive partners in creating their own personalized news account each day, and traditional journalism is only part of that mix":

Consumer Group Study Supports P2P
A new study from the Consumer Federation of America documents the benefits of file-sharing software and sets the stage for a grassroots push against Big Content:

VoIP Lets Strangers Pick Up the Phone
Low- or no-cost Internet phone calls are letting people reach out and touch someone in other countries, even if they've never met. (NYT; registration unfortunately required.)

SF Chronicle Slams Apple
Opines the editors: "The decision plows dangerous new ground and should be overturned on appeal":

BusinessWeek Slams Apple
A bit of sage business advice: "Going after the Websites or forcing them to divulge their sources will put the company in the middle of a freedom-of-speech firestorm that will be a costly distraction for management, and could tarnish the Apple brand":

The Guardian Slams Apple
I'm sensing a trend: "It remains a mystery as to why Apple should so actively seek to alienate the people who are its fans and customers. ...Suddenly this company is asking to be loathed and subverted - which doesn't seem to make much business sense":

CNET Slams Apple
And in covering the court's decision to help Apple hunt journalists, CNET Executive Editor Charles Cooper sums up the sentiment of journalists everywhere: "With today's ruling, Jobs is in danger of leaving a big black blot on an otherwise remarkable legacy":

Google Love for Open Source
The Benevolent Giant has launched "Google Code," which provides code for many Google products and discussion forums for open-source developers: (Computerworld)

SCO's Silver Lining
Stuart Cohen argues that the suit has forced open-source developers to be more diligent, which would strengthen the movement in the long term:


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