EFFector Vol. 18, No. 38 November 4, 2005
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 354rd Issue of EFFector:
- Action Alert: Horror Triple Bill for Digital Technology
- File-Sharing Lawsuits Fail to Deter P2P Downloaders
- Justice Department Not Appealing Cell Phone Surveillance Cases
- Uproot Sony-BMG's Invasion of Your Privacy and Your Computer
- Report from Hearing on National Security Letters
- miniLinks (6): What Would Justice Do? Clues on Alito
- Staff Calendar
Action Alert: Horror Triple Bill for Digital Technology
This Thursday, the heads of the MPAA and RIAA presented to the House Subcommittee on the Courts, the Internet, and Intellectual Property their plans for the future of digital technology. They gave the House drafts of three bills they would like passed: the Analog Content Protection Act, the HD Radio Content Protection Act, and the Broadcast Flag Authorization Act. These proposed laws are truly a horror triple bill.
For high-definition television (HDTV), the MPAA demands every receiver must have, and obey, their broadcast flag. For new radio technologies, the RIAA will restrict you to recording radio shows for a minimum of 30 minutes, for a maximum of 50 hours. And all analog to digital video conversions will be forced to watch for, and obey, a concealed signal, refusing to digitize any image that contains a key watermark.
If any one of these provisions passes, it would be disaster for you and for innovation.
Visit our Action Center, and warn your representative of what Hollywood's horror bills would do to the digital future!
EFF Analysis: Halloween on the Hill
The MPAA's Analog Hole Bill:
The RIAA's HD Radio Bill:
The Broadcast Flag Bill:
File-Sharing Lawsuits Fail to Deter P2P Downloaders
RIAA v. The People: Two Years Later
Chicago - It's been two years since the Recording Industry Association of America (RIAA) started suing music fans who share songs online. Thousands of Americans have been hit by lawsuits, but both peer-to-peer (P2P) file sharing and the litigation continue unabated.
In a report released Thursday, "RIAA v. The People: Two Years Later," the Electronic Frontier Foundation (EFF) argues that the lawsuits are singling out only a select few fans for retribution, and many of them can't afford either to settle the case or defend themselves. EFF's report cites the case of a single mother in Minnesota who faces $500,000 in penalties for her daughter's alleged downloading, as well as the case of a disabled veteran who was targeted for downloading songs she already owned.
"Out of the millions of people who download music from P2P systems every day, the RIAA arbitrarily picks a few hundred to sue every month," said EFF Senior Staff Attorney Fred von Lohmann. "Many of those families suffer severe financial hardship. But despite all the publicity, studies show that P2P usage is increasing instead of decreasing."
"RIAA v. The People" was released in conjunction with the first annual P2P Litigation Summit in Chicago on Thursday, which brings together defense attorneys, clients, advocates, and academics to discuss the latest developments in the lawsuits.
Three other reports released Thursday were aimed at helping lawyers representing music fans sued by the RIAA. "Typical Claims and Counter Claims in Peer to Peer Litigation" is a general discussion of the lawsuits, while "Parental Liability for Copyright Infringement by Minor Children" and "Copyright Judgments in Personal Bankruptcy" both tackle important issues arising in defending families from devastating judgments.
"After two years of lawsuits, there's only one conclusion to draw," said von Lohmann. "Suing music fans is no answer to the P2P dilemma."
For "RIAA v. The People: Two Years Later":
For "Typical Claims and Counter Claims in Peer to Peer
For "Parental Liability for Copyright Infringement":
For "Copyright Judgments in Personal Bankruptcy":
For more on the P2P Litigation Summit:
Justice Department Not Appealing Cell Phone Surveillance Cases
DOJ's Decision Denies Courts Guidance on When to Authorize Tracking
San Francisco - The US Department of Justice (DOJ) has told the Electronic Frontier Foundation (EFF) that it will not appeal a New York decision that forcefully rejected its request to track a cell phone user without first showing probable cause of a crime. It also appears that DOJ will not appeal a similar opinion recently issued in Texas.
Last week in the Eastern District of New York, Federal Magistrate Judge James Orenstein, in a scathing opinion, rejected DOJ's request to track a cell phone without a warrant, agreeing with a brief EFF filed in the case. Describing the government's justifications for the tracking request as "unsupported," "misleading," and "contrived," Orenstein ruled that tracking cell phone users in real time required a showing of probable cause that a crime is being committed. Earlier this month, another federal magistrate judge in the Southern District of Texas published his own opinion denying another government application for a cell phone tracking order. DOJ has failed to file timely objections with the District Court in that case, too. Although DOJ may still decide to appeal that case to the Fifth Circuit, its choice not to appeal the nearly identical opinion in the New York case makes that seem unlikely.
"The government's decision not to appeal either of these cases is disappointing," explained EFF staff attorney Kevin Bankston. "The magistrate judge in New York explicitly encouraged the government to appeal the decision so that he and his fellow judges around the country could get some guidance from the higher courts. The very important question of when the government can track your cell phone remains an open question that should be argued openly in the appeals court, not litigated piece-meal in lower-court proceedings where the government is secretly presenting cell phone tracking requests."
An October 28 story in the Washington Post reported that, when questioned about the court decisions, "Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause."
"The Justice Department has been arguing for warrantless cell phone tracking in secret proceedings with magistrate judges across the country, probably for years," said Bankston. "My biggest fear is that DOJ intends to continue these illegal surveillance orders in secret, while avoiding scrutiny from higher courts."
To read the full text of Judge Orenstein's opinion,
and the similar Texas opinion:
For this release:
Uproot Sony-BMG's Invasion of Your Privacy and Your Computer
For years now, copy-restriction software has been a looming threat to those who purchase music and want to make fair uses, such as space-shifting it from one device or computer to another. Fortunately, early versions of the software were so cumbersome and easy to work around that consumers whole- heartedly rejected or bypassed them. Recently, however, at least one record label has stepped up the war for control of digital content by drawing from the playbook of spyware companies and virus-writers.
Using a program called a rootkit, inserting a Sony BMG music CD will now infect your computer with a nefarious program, burying it deeply and obscurely within your operating system. The program will monitor your computer activity in the name of preventing the so-called "epidemic of piracy" that results from people making extra copies of their music CDs or favorite songs. Worse yet, there is no "uninstall" feature on this program. It's like the roach motel—once Sony BMG's surveillance program checks in, you can't make it check out without completely wiping your entire system clean. Such practices have been widely condemned in the computer world, even by Microsoft's own research division.
Outrage from computer users and music fans has sparked Sony BMG into offering a program on its website that will show you if you have been infected with the rootkit. However, while you can see the program running, you still can't uninstall it, and some security experts believe installing the "update" may even infect your computer with more unwanted files.
While it is debatable whether copy-restriction software can even prevent serious illegal copying to begin with, there should be no question that invading our computers and infecting our systems should be off-limits. Unfortunately, the law is unclear on the exact rights users have to keep programs like Sony's rootkit off your computer when you purchase their CDs or click on a random "I Agree" button that might appear during an installation process. Until the law clarifies that We the Consumer actually hold the rights and keys to our computers, spyware companies, virus-makers, and now even entertainment conglomerates will be the ones dictating what we can and cannot do in the privacy of our own homes with the equipment and content we have lawfully purchased. Left unchecked, they will continue using our own computers against us to enforce their will and whims over our personal freedoms and behavior.
Entertainment companies often complain that computer users refuse to respect their intellectual property rights. Yet tools like Sony's rootkit refuse to respect our own personal property and privacy rights. Such hypocrisy should not stand.
Note: According to Princeton University CS Prof. Ed Felten, if you're using a recent version of Windows, you can protect yourself against this type of software, and some other security risks, by disabling autorun.
More on the Sony rootkit:
More on the Sony response:
More on Ed Felten's suggestions:
Report from Hearing on National Security Letters
Wednesday, the Second Circuit Court of Appeals heard argument in the case of Doe v. Gonzales, considering whether National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.
In addition, NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.
In a landmark decision, the federal district court in the Southern District of New York (SDNY) found NSLs unconstitutional, and the Second Circuit heard the government's appeal. The argument was consolidated with the hearing on the government's appeal of a second NSL case in Connecticut, which stuck down a gag order imposed on a library under the same statute.
The consolidated cases were heard before Judges Richard Cardamone, Joseph McLaughlin and Barrington Parker, Jr. The Department of Justice represented the government and the American Civil Liberties Union represented the unidentified "John Doe" plaintiffs.
The argument focused almost exclusively on the SDNY case, with the DOJ arguing that NSLs were constitutional because, while not specified in the statute, the law implicitly allows for judicial review and implicitly allows consultation with an attorney. Under questioning from the bench, the government took the position that the NSL statute allowed a company to communicate with "the correct people" inside the company and with outside attorneys.
The court was concerned about the unlimited time of the gag orders, to which the DOJ argued that the needs of national security mean that there is a continued need for secrecy. As a "fall-back" position, the DOJ also argued that this case should be examined "as applied" to the particular facts of the case in which the investigation is ongoing. One judge expressed concern about having a "great shroud of secrecy," noting that "we are an open society."
Read the full report from the hearing:
miniLinksminiLinks features noteworthy news items from around the Internet.
RFIDs to Be Placed in US Passports
The "Potential Hostage Radio Beacon" is planned for October 2006.
Why Software Patents Are Like Smoking
The CEO of MySQL tries to clear the air.
RIM vs NTP vs the Common Good
"The tail of inventor enrichment is currently wagging the dog of social benefit," says eWeek.
Utah Statesman on the Broadcast Flag
The campus section looks into student and faculty worries about broadcast flag legislation.
What Would Justice Do?
Donna Wentworth pulls together the clues on Alito's intellectual property stance.
Statewatch's Annotated Guide to EU Data Retention
Everything you might want to know collected in one place-- just like the proposal asks.
Fred von Lohmann speaking at the National Lawyers Convention in Washington, DC
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