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EFFector - Volume 18, Issue 3 - Supreme Court Date Set for Grokster


EFFector - Volume 18, Issue 3 - Supreme Court Date Set for Grokster

EFFector       Vol. 18, No. 03       January 27, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 319th Issue of EFFector:

Supreme Court Date Set for Grokster

Washington, DC - The US Supreme Court set the date for oral argument in MGM v. Grokster for March 29, 2005. EFF is defending StreamCast Networks, the company behind the Morpheus peer-to-peer (P2P) software, against 28 of the world's largest entertainment companies.

The companies first brought this lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products in 2001, hoping to obtain a legal precedent that would hold technology makers responsible for the infringements committed by the users of their products. The entertainment companies lost in District Court, then lost again on appeal to the Ninth Circuit Court of Appeals.

The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

A final ruling is expected by the end of July 2005.

For this media alert:

MGM v. Grokster case archive:

EFF Announces "Endangered Gizmos" List

Project Demonstrates How Bad Law Ruins the Environment for Innovation

San Francisco - EFF this week announced a new project that highlights the way misguided laws and lawsuits can pollute the environment for technological innovation. "Endangered Gizmos" is a natural history of technologies from the Betamax VCR to filesharing software that have been threatened or extinguished through ruthless litigation. The "Endangered Gizmos" List gives readers the vital statistics on a host of gadgets, along with steps they can take to save those that haven't yet been killed off.

The list also includes devices that have been saved by good laws. The VCR, for example, was rescued from extinction by the Supreme Court's 1984 landmark ruling in Universal v. Sony, which shielded the Sony Betamax VCR from being declared unlawful simply because people could use it to infringe copyright.

"Endangered Gizmos" debuted the same day that the opening briefs were filed in MGM v. Grokster, a Supreme Court case the outcome of which could render extinct several currently legal technologies. The public-awareness campaign complements EFF's work defending StreamCast Networks in the case.

"This isn't about saving one or two geeky gadgets. It's about fostering technological development by letting products be designed by technologists, rather than Congress and the courts," said EFF Staff Attorney Wendy Seltzer. "Lawsuits are destroying future technological progress by killing off today's best innovations."

***EXTRA: EFF will hold a BayFF event to talk about/demo Endangered Gizmos on February 22 at 111 Minna in downtown San Francisco. Save the date - more details to follow!

For the full press release:

Endangered Gizmos:

San Jose Mercury News article: "Supreme Court to Hear Grokster Case"

Texas Court Orders Voting Examiners' Meetings Opened to Public

Requires "Sunshine" in Process of Choosing E-voting Machines

Texas - A Texas court ruled today that state voting examiners may no longer bar the public from their meetings. In the case, ACLU of Texas v. Connor, the plaintiffs argued that the Texas Open Meetings Act should apply to meetings of the voting examiners. These meetings are used to decide what kinds of electronic voting machines will be used in upcoming elections. EFF was co-counsel in the case.

"The court rightly rejected Texas' policy of shutting the public out of the processes for selecting voting technologies. The need for public trust in our election systems cannot be overstated, and this is a terrific step forward for the voters of Texas," said EFF Staff Attorney Matt Zimmerman.

Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold Election Systems, that suggest a lack of rigor and failure to address proper security and certification compliance issues.

"This ruling allows specialists in areas including computer security, accessibility, and minority rights to offer their own skills to complement the state's official election examiners," said Dan Wallach, an assistant professor in the Department of Computer Science at Rice University and outspoken critic of poorly designed electronic voting systems.

For the ruling:

For the full release:

Op-ed: "Rethinking Recounts"

By Cindy Cohn EFF Legal Director

When Congress passed the Help America Vote Act (HAVA) after the Florida recount debacle, most of us imagined that new electronic voting machines would make the voting process easier. What we didn't anticipate was that some voting machine vendors would make it "easier" by removing the ability to do an accurate recount - the design equivalent of a CEO making an audit "easier" by eliminating the accounting department.

With the dust settling on the majority of the close elections nationwide, we can see more clearly than ever the most disturbing problem caused by using these rush-to-market touchscreen voting machines: the recounts were, to put it bluntly, a charade.

Let's start with the basics. The goal of a recount is to ensure that the voters' intentions were properly recorded and the right person won. That's why we pull out the punch cards and review them for hanging chads, or check optically scanned ballots for stray marks.

Nothing remotely that sensible took place in Washington State, Ohio, or anywhere else that voters used paperless touchscreen machines. Instead, we saw what can only be described as a "reprint." Voting officials either fed the same vote data through the same system a second time, or recounted the machine data by hand or with a spreadsheet - always reaching the same or roughly the same results. It doesn't take a computer genius to recognize that this method of "recounting" is simply a means of replicating any error in vote data that may have existed the first time the votes were tallied. It says absolutely nothing about whether the voters' intentions were correctly recorded in the first place.

So how do we perform a legitimate recount using touchscreen machines? The first and most obvious answer is to add paper. With a voter-verified paper ballot, a basic "audit" is part of the process. The voter can see on paper whether the machine has correctly recorded his or her vote, and election officials can check the machine count against the voter-checked paper count.

That's the solution mandated by the "Holt bill" - popular, bipartisan-supported federal legislation that Representative Rush Holt (D-NJ) will reintroduce this congressional term. It's already the law in California, New Hampshire, and Alaska. And after the embarrassing, agonizingly protracted battle over the recount in Ohio, Secretary of State Kenneth Blackwell has prudently chosen to require the safest, most auditable system available: precinct-counted optical-scan machines.

But suppose your state or county can't see the writing on the wall and chooses to stick with paperless machines. There are still steps that voting officials can take to help verify an election, including counting from the redundant memory banks, examining the audit logs, and conducting simple screen-calibration tests. E-voting machine vendors themselves repeatedly cite the presence of redundant memories as proof that touchscreen machines are auditable. Yet in this election, many officials flatly refused to look at them - leaving voters without even the most bare-minimum safeguards against machine error and vote-tampering.

It doesn't have to be this way. The Election Assistance Commission (EAC) has just begun to formulate its work plan for 2005. It could step forward to develop clear and sensible guidelines for what constitutes a true recount using touchscreen machines. Let's hope it moves swiftly - before we lose any more elections to substandard machines, needless confusion, and doubt.

For the original version of this piece online:

Last Call for EFF Pioneer Award Nominees!

There's still time to tell us who you think deserves an EFF Pioneer Award this year. The nominee can be a group or individual from anywhere in the world. We will continue to accept nominations until February 1, 2005.

For details on criteria, past award-winners, and instructions on how to nominate a Pioneer, check out the Pioneer Awards website:

EFF Seeks Summer Interns

EFF invites outstanding law students to apply for summer internship positions at our high-energy office in San Francisco, where you can work with EFF's legal team to litigate cutting-edge issues surrounding new technologies.

Interns assist in all aspects of litigation, including legal research, factual investigation, and drafting of memoranda and briefs, while also helping with policy research, client counseling, and the development of public education materials.

Summer interships are unpaid and last for 10-12 weeks. Applications are due by February 25, 2005.

For details and an application, see:


miniLinks features noteworthy news items from around the Internet.

Felten Takes a Red Pen to Supreme Court Briefs
Two of the amicus briefs filed in support of the content industry demonstrate flawed thinking about technology:

A New Kind of Civil Disobedience
"Eyes on the Prize" is one of the most renowned civil rights documentaries of all time, but no one can see it because it's tied up too tightly in copyright's red tape. In protest, Downhill Battle is launching a campaign urging mass screenings on February 8 all across the country:

Wired article:,1412,66410,00.html

Won't Someone Please Think of the Children?
The US Copyright Office is investigating whether it needs a system to clear the way for people who want to use "orphaned" copyrighted works that have no visible parent (rightsholder). If you'd like to use old, abandoned software, books, photos, etc., follow the link below to file your comments:
(Federal Register)

Lasica Burns the Broadcast Flag
J.D. Lasica has a scorching article in Reason criticizing Michael Powell's "invisible legacy" - the nightmare of Hollywood-dictated, government-enforced technology mandates:

Keep Thanking Poland
The EU Patent Directive was stalled again this week when Poland raised more concerns about the controversial, ill-conceived proposal:

China Bans 50 Video Games for "Corrupting the Youth"
"FIFA Soccer" was on the list, as was a Microsoft game that allows players to act out Greek mythology. No word yet on whether "Grand Theft: Xizang" made the cut:

Aussie Nat'l ID Comes Under Fire
The proposed card would include - you guessed it - biometric identifiers: (Australian IT)

Learn Copyright - the Creepy Way
Baruch College has produced an engaging - if conservative and a little creepy - site to help teachers negotiate copyright's muddy waters:

Introducing the Next Evolution in Filesharing
It's called Exeem, and it marries BitTorrent's speed and KaZaA's search capabilities:

"None of This Makes Us Feel Wonderful"
So says a music exec about suing thousands of customers. FYI: It makes us pretty sick, too:

2005: The Year of Filesharing Legally
EFF's own Ren Bucholz predicts that 2005 will be the year that the major players start to understand the wisdom of letting the music pay:

Forbes Joins Call for Blanket Licenses on P2P
Speaking of which, the most sensible approach to solving the "P2P problem" just got another endorsement:

IBM/SCO Peek-A-Boo Continues
A judge has ordered IBM to show more code in the coyest patent fight ever:

Anti-Spyware Bill Rises Again
Procedural hurdles kept the bill from clearing the last Congress, but backers are preparing for another run:

In Copyright, the Little Things Mean a Lot
EFF and the Brennan Center for Justice at NYU Law School recently submitted a brief in opposition to a court ruling that eliminated the "de minimis" exception to copyright law. The exception, a long-standing component of copyright law, allows creators to take an extremely small portion of another work to create something new:


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