Skip to main content
Podcast Episode: Fighting Enshittification

EFFector - Volume 18, Issue 11 - Supreme Court Justices Grill Both Sides at Copyright Hearing


EFFector - Volume 18, Issue 11 - Supreme Court Justices Grill Both Sides at Copyright Hearing

EFFector       Vol. 18, No. 11       March 31, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 327th Issue of EFFector:

Supreme Court Justices Grill Both Sides at Copyright Hearing

MGM v. Grokster Raises Questions About Innovation and Litigation

Washington, DC - EFF was heartened to hear the Justices of the United States Supreme Court engage in a lively debate Tuesday about whether technology manufacturers should be held liable for the infringing activities of consumers. At stake is nothing less than the future of innovation in the United States. If vendors are held responsible for what people do with their products, even tech giants like Intel say they'd have to fire engineers and hire lawyers.

MGM and nearly a dozen other entertainment companies argued that peer-to-peer software makers Grokster and StreamCast had built their businesses by distributing "infringing machines." But counsel for the entertainment industry, Donald Verrilli Jr. of the law firm Jenner & Block, scarcely finished his opening statements before the Justices interrupted with pointed questions about how his arguments would impact technological innovation. Justice Antonin Scalia asked how the industry would protect nascent technologies from "out-of-the-box lawsuits," and Justice Stephen Breyer pushed him to explain why MGM's argument wouldn't also apply to the iPod, Xerox machines, and even Gutenberg's printing press.

Richard Taranto of the law firm Farr & Taranto, who represented respondents Grokster, Ltd., and StreamCast Networks, Inc., replied that it was crucial for the Court to reaffirm its 20-year-old Betamax ruling, which held that companies should not be barred from selling products that may be used for copyright infringement if there is a potential for significant legal uses. Taranto also pointed out some of the many noninfringing uses for peer-to-peer software, including genomics research, archiving works in the public domain, and distributing new media whose creators use open copyright or Creative Commons licenses.

"The Justices asked all the right questions," said EFF Senior Staff Attorney Fred von Lohmann, lead attorney for StreamCast. "They were clearly worried about how this ruling would affect the future of technological invention. As Justice David Souter said, we shouldn't hang a sword of Damocles over the heads of America's innovators."

The Court will likely issue a decision in late June or early July.

For this release:

More about MGM v. Grokster:

Deep Links: "Justices Ask the Right Questions in MGM v. Grokster":

New US Passports Will Serve as Terrorist Beacons

The US State Department is pushing for what may be the most misguided and dangerous travel "security" plan ever proposed: putting insecure radio-frequency identification (RFID) chips in all new US passports. These chips would broadcast your name, date of birth, nationality, unique passport number, and any other personal information contained in the passport to anyone with a compatible RFID reader. That's right - anyone, not just passport control.

"The upshot of this is that travelers carrying around RFID passports are broadcasting their identity," observes security expert Bruce Schneier. "It means that anyone with a reader can learn that information, without the passport holder's knowledge or consent. It means that pickpockets, kidnappers, and terrorists can easily - and surreptitiously - pick Americans or nationals of other participating countries out of a crowd."

Astonishingly, the State Department proposal abandons even the most fundamental security protections. Why broadcast passport data at all? With machine-readable travel documents that require physical contact between passport and reader, you can rest assured that your passport will only be read when you intend to show it, eliminating any risk of surreptitious reading. But the State Department isn't only endorsing contactless RFID technology for passports - it wants to broadcast your personal information *in the clear.* In other words, it wants to use digital signatures for authentication, but doesn't want to encrypt or otherwise protect passport data, claiming that the information isn't worth protecting and that encryption would interfere with "global interoperability."

This is especially disturbing in light of the fact that safer options are readily available; the government already uses a line-of-sight LaserCard optical memory card that can't be read from your wallet or purse for multiple-entry visa Border Control Cards ("LaserVisas").

Privacy advocate Bill Scannell calls RFID-embedded passports "terrorist beacons" - and that's precisely what they'll become if we allow the State Department to move ahead with this plan. The Department is soliciting the public's input on the new passports, and the time to act is now - the deadline for submitting comments is this coming Monday, April 4. Follow the links below to learn more and submit your comments today:

US State Department Notice of Proposed Rule Making: (Federal Register; please note that all comments must include the Regulatory Identification Number, RIN 1400-AB93, in the message subject line.)

Bruce Schneier: "RFID Passports":

Bill Scannell's website: "RFID Kills":

Edward Hasbrouck: "Deadlines Loom for RFID Tracking Chips in USA Passports":

It's Official: TSA Lied

Two government reports confirm what EFF and other privacy advocacy organizations have long known: the Transportation Security Administration (TSA) lied about its role in using airline passengers as guinea pigs for testing "Secure Flight" - the latest version of a fundamentally flawed passenger-profiling system for screening terrorists. And not only did TSA lie, it lied repeatedly, to everyone.

A Department of Homeland Security (DHS) report, released this past Friday, reveals that TSA misled individuals, the press, and Congress in 2003 and 2004. A General Accounting Office (GAO) report, released Monday, also shows that Secure Flight has failed to meet 9 out 10 conditions the GAO set for giving the program the go-ahead. These conditions include providing adequate protection for passengers' privacy and ensuring the accuracy of the data it would use to classify people as terrorist risks.

Passenger records contain detailed personal information, such as your name, address, phone number, travel itinerary -- even your credit card number. Yet the DHS report says TSA shared passenger information with outside contractors while neglecting to "inquire whether the data used by the vendors had been returned or destroyed."

"This is worse than ChoicePoint," says EFF Senior Privacy Attorney Lee Tien. "It reflects an attitude toward the privacy of Americans that falls well below what people are up in arms about in the commercial data industry. These people have a public trust and they're abusing it."

[Note: This report was corrected to distinguish between two separate reports on Secure Flight.]

The DHS report:

The GAO report:

Bruce Schneier: "GAO's Report on Secure Flight":

Background on TSA's attempts to cover up its collection and use of private travel information:


miniLinks features noteworthy news items from around the Internet.

Justices Like the Look of Brand X?
According to this report, the Supreme Court appeared open to the idea that cable monopolies shouldn't close their networks to independent Internet service providers:

FCC Leaving No Monopoly Behind
Only days before the Supreme Court reviewed the FCC's position vis-a-vis cable monopolies, the Commission blocked several states from requiring that telephone companies allow competition on DSL lines:

A Few Notes From the Grokster Argument
DC appellate attorney/Harvard LLM student Timothy Armstrong's detailed notes and reflections on the day's arguments:

Who's That Guy?
Linda Greenhouse reports on the oral arguments for The New York Times, highlighting the Court's concern for the future innovator - or as Justice David Souter called him, the "guy sitting in his garage inventing the iPod": (Registration unfortunately required.)

Supreme Court Campout
This article has some great pictures of people camping out on the Supreme Court's steps before the oral arguments in the Grokster case:,1412,67060,00.html

California's Civil War
The LA Times with a great editorial that captures the rift between Hollywood and Silicon Valley over the issues in the Grokster case: (Registration unfortunately required.)

FL Election Officials Battling Over Machines
Choice quote: "People in Leon County would rather vote on paper than on vapor":

Brazil Opens Up
Great NYT piece about the role open-source software plays in Brazil's effort to connect millions of its citizens: (Registration unfortunately required.)

Who Are You Calling a Journalist?
David Shaw of the LA Times makes an incoherent argument about why bloggers shouldn't get the same protections as traditional journalists; Slate's Jack Shafer offers a rebuttal: (LA Times; reg. unfortunately req.)

Alleged Spammer Goes Belly-Up, a Colorado company that sends 15 million email messages a day, has been forced into bankruptcy:,1413,36~32540~2786931,00.htm

Banks Forced to Come Clean on Privacy Gaffes
Federal finance agencies have issued new rules that force banks to notify customers when their private information has been exposed. That seems obvious - right, TSA?


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

Membership & donation queries:

General EFF, legal, policy, or online resources queries:

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.

Current and back issues of EFFector are available via the Web at:

Back to top

JavaScript license information