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EFFector - Volume 18, Issue 35 - A Trio of Victories at WIPO

EFFector       Vol. 18, No. 35       Oct 14, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 351st Issue of EFFector:


A Trio of Victories at WIPO

Geneva - Our latest trip to the World Intellectual Property Organization (WIPO) ended last week, and we registered victories on all three of the issues we've been following.

First, the Development Agenda -- which looks at WIPO's impact on developing nations -- will continue to be a central part of the organization's work in 2006. Even as developed countries like the U.S., Japan, and most European states tried to shunt these proceedings into a committee that hadn't met for two years, developing countries from around the globe fought to keep their future on the front burner. A compromise was reached, and the Development Agenda will proceed in a provisional body specifically tasked with producing concrete recommendations for next year's General Assembly Meeting.

The forces of radical protectionism were also stymied in their push on the Broadcasting Treaty, a proposed text that would have granted broadcasters and webcasters copyright-like rights over the content they transmit. Its supporters wanted a "diplomatic conference" -- the last step before a treaty is ready for signatures -- in the first quarter of 2006. But they were denied, and the treaty will be dissected in at least two more meetings before a diplomatic conference is discussed again.

Finally, we're happy to report that a host of new allies (and a few new adversaries) will join us in future WIPO battles. WIPO approved the pending memberships of all non-govermental organizations (NGOs) with outstanding applications, ending the year-long fight to include a broader representation of civil society. This help is most welcome as we embark on the next round in the fight for balanced information policy at WIPO.


Adult Website Lawsuit Threatens Google Image Search

Injunction Could Shut Down Popular Service

Los Angeles - EFF filed a brief Wednesday in support of Google Image Search, arguing that a federal district court should reject a request for a preliminary injunction that could shut the service down.

In its lawsuit, adult entertainment website Perfect 10 claims that Google violates its copyrights by making and delivering thumbnail images of its photos as Internet search results. In its friend-of-the-court brief, EFF shows that these copies are a well-established fair use of digital images, and they help people find and use the works for informational and educational endeavors.

"Google Image Search helps millions of people locate and learn about information on the web every day," said Jason Schultz, EFF staff attorney. "We're concerned that the public will lose out if Perfect 10 succeeds in shutting it down."

Perfect 10 argues that a preliminary injunction is justified because Google is violating its right to reproduce, distribute, and display its copyrighted work. But there is a long tradition in fair use that certain kinds of copies are socially useful, even without permission of the author. Courts have held that copies are a legal intermediate step to making non-infringing uses of the copyrighted work -- for example in teaching, education, and news reporting.

Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information -- much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.

While the images provided by Perfect 10 may have limited academic application, the ramifications of its lawsuit could have a huge impact on educational research.

"Without the right to make legal copies, Google Image Search wouldn't be able to help you find a picture of Martin Luther King, Jr., at the Lincoln Memorial, for example," said Schultz.

A hearing in this case is set for November 7, 2005.

For the full text of the brief:
http://www.eff.org/legal/cases/Perfect10_v_Google/EFF_amicus_brief.pdf

For the full release:
http://www.eff.org/news/archives/2005_10.php#004058


New Government Excuses for Cell Phone Surveillance

In the Government's response to EFF's amicus brief opposing the use of your cell phone to track your location, it supplies a new argument for the court's authority to force your wireless carrier to turn over this information: the All Writs Act.

The All Writs Act is a federal law that empowers federal courts to issue the writs (court orders) that are "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." It's a sort of catch-all law, allowing a court to get assistance from a third party to execute a prior order of the court, so long as the assistance required is not overly burdensome and does not violate the Constitution.

We strongly dispute the Government's view of the breadth and strength of the All Writs Act as a cell phone surveillance tool, especially where, as here, Congress has specifically limited the use of cell site information to track location. The U.S. Supreme Court has explained, "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling."

But the most interesting part of the Government's response is what it reveals about the DOJ's expansive use of the All Writs Act in other cases. Without citation to any cases supporting the invasive surveillance of credit cards without probable cause, the Government notes:

Currently, the government routinely applies for and upon a showing of relevance to an ongoing investigation receives "hotwatch" orders issued pursuant to the All Writs Act. Such orders direct a credit card issuer to disclose to law enforcement each subsequent credit card transaction effected by a subject of investigation immediately after the issuer records that transaction.

This is a revelation, and a disturbing one at that, since these so-called "hotwatch" orders have not been previously mentioned in court cases, law review articles, or DOJ materials. While the cell phone tracking case is still ongoing, our litigation has unveiled yet another step taken towards the surveillance society.

The All Writs Act should not become the All Surveillance Act. As the Supreme Court has acknowledged, the Act was only intended to be a residual authority to issue writs that are not otherwise covered by statute, but the Act does not authorize courts to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. It's high time for courts to scale back this pernicious use of the All Writs Act and help carve out a future in which we would want to live.

EFF's Amicus Brief:
http://www.eff.org/legal/cases/USA_v_PenRegister/

The Government's Response:
http://www.eff.org/legal/cases/USA_v_PenRegister/celltracking_govt_reply.pdf

The All Writs Act:
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1651


First Annual P2P Litigation Summit, November 3

In September 2003, members of the Recording Industry Association of America (RIAA) filed the first wave of lawsuits against individual peer-to-peer (P2P) file-sharers. Two years and 14,000 lawsuits later, both P2P file-sharing and file-sharing litigation continue unabated, and members of the Motion Picture Association of America (MPAA) are now suing individual Internet users, as well. It's time to step back and consider where this litigation has been, where it's going, and whether there is a better way forward.

EFF is co-sponsoring the First Annual P2P Litigation Summit, to be held on Thursday, November 3, 2005, at Northwestern University School of Law in Chicago, Illinois.

The daylong conference brings together public and private defense attorneys, clients, investigators, advocates, and academics to discuss the latest developments in peer-to-peer litigation. How do the RIAA and MPAA go about identifying plaintiffs? What are the most effective legal strategies and tactics? Is it better to settle immediately or fight it out in the courts? How is this impacting the individuals sued? What is the role of ISPs in this quagmire? Should Congress step in and, if so, what legislation is needed? Are there other ways to compensate authors for their works?

More information, and to register:
http://www.signmeup.com/51363


Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please visit the full calendar:
http://www.eff.org/calendar/

October 15 Kurt Opsahl, Fred von Lohmann, and Kevin Bankston speaking on various panels at California Amendment Coalition assembly (Fullerton, CA) - (All day event) http://www.cfac.org/assembly_2005.htm


miniLinks

miniLinks features noteworthy news items from around the Internet. Your Right to Bare Arms
Thrown off an airplane for the message on your t-shirt? One clothing company will arrange free alternative travel.
http://www.tshirthell.com/traveloffer.htm

Spot the Terrorist
Wendy Grossman on why, when screening for terrorists, it's the "normal" people you need to keep an eye on.
http://www.newswireless.net/index.cfm/article/2447

The Window Vanishes
Is there a move to eliminate the gap between theatrical and DVD release dates?
http://www.ipdemocracy.com/archives/2005/10/12/index.php#a000591

Danish Justice Minister Says EuroMPs "not Adult Enough" to Invade Privacy
The European Parliament and Europe's ministers face off over data retention.
http://news.bbc.co.uk/1/hi/world/europe/4335058.stm

Fined for Typing Two URLs
Daniel Cuthbert, a British security consultant, is found guilty of computer misuse for checking that a site wasn't phishing.
http://www.samizdata.net/blog/archives/008118.html

Why Libertarians Don't Like the DMCA
Tim Lee responds to Patrick Ross' peculiar "free trade" defense of the DMCA.
http://www.techliberation.com/archives/026080.php

Hardest Job in the World
The Privacy Officer at the Department of Homeland Security steps down, after a brave but tough time.
http://www.washingtonpost.com/wp-dyn/content/article/2005/09/28/AR2005092802173_pf.html

User Modification Site Excluded From AOL Deal
The modding HackADay site is being excluded from the Time-Warner/Weblogs, Inc., deal, apparently for fear of being silenced.
http://calacanis.weblogsinc.com/entry/1234000810062890/

Europe's Creative Economy: a Meeting of Closed Minds
Copyfighters comment on a disappointing EU conference on intellectual property.
http://drn.okfn.org/node/37


Administrivia

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