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EFFector - Volume 19, Issue 15 - EFF Stands Up for Online Journalists' Rights in Apple v. Does

EFFector       Vol. 19, No. 15       April 20, 2006

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 376th Issue of EFFector:


EFF Stands Up for Online Journalists' Rights in Apple v. Does

Case Has Broad Implications for Journalists and Confidentiality of Sources

The Electronic Frontier Foundation (EFF) told a San Jose, California appeals court Thursday that denying protections for confidential sources would deliver a dangerous blow to online journalism and independent media.

Apple Computer is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product to online news sites PowerPage and AppleInsider. As part of its investigation, Apple subpoenaed Nfox -- PowerPage's email service provider -- for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A trial court upheld the subpoena.

In arguments before the 6th Appellate District of the California Court of Appeal, EFF Staff Attorney Kurt Opsahl told a panel of three judges that a subpoena to Nfox violated the federal Stored Communications Act, which requires direct subpoenas of account holders. Opsahl also argued that O'Grady and other online journalists are entitled to protect their confidential source information under both the California constitution and the U.S. Constitution.

In addition to the parties in the case, attorneys for conservative blogging group The Bear Flag League and Intel Corp. spoke to the court, with Intel arguing in support of Apple.

EFF worked with co-counsel Thomas Moore III and Richard Wiebe in this case. A ruling should be announced within 90 days.


Calling For Sunshine at the Smithsonian

As we mentioned in EFFector two weeks ago, the Smithsonian Institution and Showtime Networks, Inc., have entered into a deal with troubling implications for the public domain. According to a report from the Washington Post, filmmakers wishing to use Smithsonian archives will "first have to offer the idea to Smithsonian/Showtime. Otherwise, the archives could not be used outside the realm of news programs ... in most cases." And if the proposed WIPO Broadcasting Treaty comes into force, filmmakers wishing to use the material might even be prevented from extracting public domain material from a Showtime broadcast.

A Freedom of Information Act (FOIA) request was recently sent to the Smithsonian seeking public disclosure of the terms of the deal. (EFF is representing the Center for American Progress in connection with the request.) Now 215 citizens have signed an open letter to the Smithsonian, demanding that the terms of the deal be made public. Signatories include technology luminaries (Vint Cerf, Mitch Kapor, David Farber), filmmakers (Michael Moore, Ken Burns), academics (Larry Lessig, Pam Samuelson), and public interest groups (Public Knowledge, Future of Music Coalition, Ass'n of Research Libraries).

Kudos to Carl Malamud at the Center for American Progress for spearheading the sunshine effort.

For the FOIA request:
http://www.americanprogress.org/atf/cf/%7BE9245FE4-9A2B-43C7-A521-5D6FF2E06E03%7D/SUNSHINE_FOIA.PDF

For the open letter: http://www.americanprogress.org/site/pp.asp?c=biJRJ8OVF&b=1554385

For more on the Showtime/Smithsonian deal:
http://www.eff.org/deeplinks/archives/004531.php


Digital Copyright Law Hurts Consumers, Scientists, and Competition

EFF Report Highlights More Unintended Consequences in Seven Years of DMCA

San Francisco - In the seven years since Congress enacted the Digital Millennium Copyright Act (DMCA), examples of the law's impact on legitimate consumers, scientists, and competitors continue to mount. A new report released this week from the Electronic Frontier Foundation (EFF), "Unintended Consequences: Seven Years Under the DMCA," collects reports of the misuses of the DMCA -- chilling free expression and scientific research, jeopardizing fair use, impeding competition and innovation, and interfering with other laws on the books. The report updates a previous version issued by EFF in 2003.

The report tells the story of the delay of the disclosure of the Sony BMG "rootkit" vulnerabilities on millions of music CDs. The dangerous software flaws were initially discovered by Princeton graduate student J. Alex Halderman. But Halderman delayed sounding the alarm about the security problems for several weeks so he could consult with lawyers about potential violations of the DMCA. The report also details the DMCA's role in impeding RealNetworks from selling digital music to Apple iPod owners, along with other unintended consequences from the DMCA.

"Rather than being used to stop 'piracy,' the DMCA has predominantly been used to threaten and sue legitimate consumers, scientists, publishers, and competitors," said EFF senior staff attorney Fred von Lohmann. "This law is not being used as Congress intended, and a review of the past seven years makes it clear that reform is needed."

For "Unintended Consequences: Seven Years Under the DMCA":
http://www.eff.org/IP/DMCA/?f=unintended_consequences.html

For more on EFF and the DMCA:
http://www.eff.org/IP/DMCA/

For this release:
http://www.eff.org/news/archives/2006_04.php#004554


Visit EFF at the Maker Faire Dunk Tank and MySQL Users Conference

If you're going to O'Reilly's Maker Faire on April 22-23 in San Mateo, California, be sure to stop by the Dunk The Makers stand. Maker Bruce Gee has constructed a fine DIY dunk tank, and you'll get an opportunity to see the great and the good of hardware hacking doused for the benefit of cleanliness, godliness -- and $20 to EFF per bucket.

If you'd like to volunteer for victimhood (or are bringing an unsuspecting friend who you'll volunteer by proxy), send mail to danny@eff.org marked "H2O" with names. Ponchos and warm towels will be available.

EFF will have a booth at the Faire on April 22. Come by and grab some EFF swag.

Maker Faire:
http://www.makezine.com/faire/

We'll also have a booth at the MySQL Users Conference on April 24-26. Danny O'Brien will be speaking at the conference on database design and privacy issues.

MySQL Users Conference:
http://www.mysqluc.com/



miniLinks

miniLinks features noteworthy news items from around the Internet.

HDCP: Broken by Design
The design of a key digital video output restriction is broken, says Ed Felten, and considers why.
http://www.freedom-to-tinker.com/?p=1006

Data Retention Comes to the USA
As always: Europe passes compulsory collection of ISP data, so now the US government wants it, too.
http://news.com.com/ISP+snooping+gaining+support/2100-1028_3-6061187.html

When the DMCA Attacks its Own
Copyright maximalist Tom Giovanetti loses a season of data on his DVR. But encrypted drives and forbidden devices are not to blame, he insists!
http://www.techliberation.com/archives/038068.php

Problems De-duping Democracy
Database inconsistencies may cause thousands of California voters to be struck from the rolls.
http://www.acm.org/usacm/weblog/index.php?p=361

Ken Burns Gives Voice to Filmmakers' Concerns
The documentary maker pans the Smithsonian's plans to sell first-refusal access to their works.
http://www.washingtonpost.com/wp-dyn/content/article/2006/04/18/AR2006041801882.html

Au Revoir, YouTube; Auf Wiedersehen Vlogs
The effect of proposed EU broadcasting regulations, if extended to the Net.
http://463.blogs.com/the_463/2006/04/au_revoir_youtu.html

Fast Forward Denied
Phillips patents a system that would make you pay to skip ads on TV.
http://blogs.siliconvalley.com/gmsv/2006/04/sadly_a_cathete.html

Commissioner Tate Will Use FCC "Bully Pulpit" To Promote DRM
Supports DRM, even when courts have restricted FCC's power in that arena.
http://www.techliberation.com/archives/038231.php


Staff Calendar

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

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

April 21-23 -
Derek Slater speaking at FreeCulture.org National Summit, Swarthmore College, PA. http://freeculture.org/summit2006/

April 22 -
EFF at the Maker Faire, San Mateo, CA. http://www.makezine.com/faire/

April 23 -
Ren Bucholz speaking at Flash in the Can, Toronto, Canada. http://www.fitc.ca/presentation_detail.cfm?festival_id=5&presentation_id=319

April 24-27 -
Danny O'Brien and other EFFers at MySQL Users Conference, Santa Clara, CA. http://www.mysqluc.com/

April 24 -
Fred von Lohmann speaking at Worldwide Piracy Prevention conference, Los Angeles, CA. http://www.americanconference.com/piracyprev/

April 27 -
Cindy Cohn speaking at JFK University School of Law, Pleasant Hill, CA.

April 28 -
Ren Bucholz speaking at NetLaw, Toronto, Canada. http://www.canadianinstitute.com/Telecommunications___Technology/Netlaw_2006.htm


Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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Editor:
Derek Slater, Activist
derek@eff.org

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