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EFFector - Volume 19, Issue 19 - EFF Can Use Critical AT&T Documents in Surveillance Lawsuit


EFFector - Volume 19, Issue 19 - EFF Can Use Critical AT&T Documents in Surveillance Lawsuit

EFFector Vol. 19, No. 19 May, 2006

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 380th Issue of EFFector:

effector: n, Computer Sci. A device for producing a desired change.

EFF Can Use Critical AT&T Documents in Surveillance Lawsuit

Evidence For Illegal Spying Case Will Remain Under Seal for Now

San Francisco - A federal judge in San Francisco ruled last week that the Electronic Frontier Foundation (EFF) can use critical evidence in its class-action lawsuit against AT&T. However, U.S. District Judge Vaughn Walker said the evidence -- three documents that AT&T alleges are proprietary and contain the company's trade secrets -- will be kept under seal for now.

EFF's suit accuses AT&T of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). The evidence at issue was filed as support for EFF's motion for a preliminary injunction against AT&T, seeking to stop the company's ongoing violations of the law and the privacy of its customers.

AT&T had requested that the evidence be returned to AT&T and not used in the case. Last Wednesday, Judge Walker denied that request. Although the allegedly proprietary documents will remain under seal, Judge Walker instructed AT&T to work with EFF to narrowly redact any confidential material from EFF's brief and supporting declarations so that they can be made public as soon as possible.

"We're very pleased that the court refused AT&T's unreasonable demand that this critical evidence be returned to AT&T and struck from the record. And, although the evidence itself will stay under seal, the court has asked AT&T to work with us in providing public versions of our legal papers," said EFF Staff Attorney Kevin Bankston. "Taken together with the court's refusal to close the courtroom as AT&T had requested, we think today was a real victory for the public's right to know, and for our ability to litigate this case."

The next hearing in this case -- about AT&T and the U.S. government's motions to dismiss the lawsuit -- is set for June 23.

For more on the AT&T lawsuit:

For this release:

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Internet Test-Taking Patent Draws Official Suspicion

EFF Wins Second Reexamination from Patent Office

San Francisco - At the request of the Electronic Frontier Foundation (EFF), the U.S. Patent and Trademark Office (PTO) will reexamine a controversial patent for online test- taking from The reexamination order is the second granted in just two months after petitions from EFF's Patent Busting Project.

EFF filed the reexamination request because the extremely broad patent claims to cover almost all methods of online testing. has used this patent to demand payments from universities with distance education programs that give tests online. But EFF, in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, showed that was not the first to come up with this testing method -- IntraLearn Software Corporation had been marketing an online test-taking system long before filed its patent request.

"Bogus patents like these are hurting innovation and education in America," said EFF Staff Attorney Jason Schultz, who heads up the project. "This is a perfect example of how the patent system is broken and what needs to be fixed." now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine.

The successful reexamination request for the patent is the latest big victory for EFF's Patent Busting Project, which combats the chilling effects bad patents have on the public interest and innovation. The first reexamination request was granted in April and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Earlier last week, the U.S. Supreme Court weighed in on the eBay patent case, signaling how important patent issues are in today's economy. In a unanimous decision, justices overturned a dangerous injunction rule that threatened free speech and consumers' rights -- following the reasoning outlined in an amicus brief from EFF. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

For the full reexamination order:

For more information about the patent reexamination:

For more on the Patent Busting Project:

For this release:

Supreme Court Reverses Dangerous Injunction Rule in eBay Patent Case

Four Justices Question Patent Trolls and Business Methods Patents in Concurring Opinion

San Francisco - The United States Supreme Court reversed a lower court decision in the controversial eBay v. MercExchange patent case last Monday, invalidating a dangerous precedent that threatened free speech and consumers' rights. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

In last Monday's decision, the court unanimously held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. This follows the reasoning outlined in a friend-of-the-court brief filed by the Electronic Frontier Foundation (EFF), which urged the justices to overrule the lower court and protect the public interest in free speech, innovation, and education.

"More and more people are using the Internet to exercise free speech and other individual rights," said Staff Attorney Jason Schultz, one of the authors of the EFF brief. "The court's ruling will allow judges to protect those rights in patent cases."

The lower court's ruling stemmed in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress. Additionally, the concurrence written by Justice Anthony Kennedy and joined by Justices David Souter, John Paul Stevens, and Stephen Breyer noted that the current patent system may be suffering ill effects from business method patents and so-called "patent troll" companies.

"An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees," Justice Kennedy wrote. "In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods ... the potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test."

As a result of the Supreme Court's opinion, the case will now return to the trial court to reconsider its decision on the injunction.

For the full Supreme Court opinion:

For Justice Kennedy's concurring opinion:

For EFF's amicus brief:

For EFF's patent-busting project:

For this release:

Judge Grants Final Approval for Sony BMG CD Settlement

Customers Will Get Compensation for Flawed Copy-Protection

New York - A U.S. District Court judge in New York gave final approval Monday to a settlement for music fans who purchased Sony BMG music CDs containing flawed copy protection programs.

"This settlement gets music fans what they thought they were buying in the first place: music that will play on all their electronic devices without installing sneaky software," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn.

The claim process actually began back in February and provides anyone who purchased Sony BMG CDs that included First4Internet XCP and SunnComm MediaMax software with the same music without digital rights management (DRM). Some people are also eligible for additional downloads or a small cash settlement. Anyone who bought one of the affected CDs should start the claims process at .

"Participating in the settlement is a way to show Sony BMG - - and the entire entertainment industry -- how important this issue is to you," said Cohn. "If you take the time to claim the product you deserve, maybe other music labels will think twice before wrapping songs in DRM."

The problems with the Sony BMG CDs surfaced last year when security researchers discovered that XCP and MediaMax installed undisclosed -- and in some cases, hidden -- files on users' Windows computers, potentially exposing music fans to malicious attacks by third parties. The infected CDs also communicated back to Sony BMG about customers' computer use without proper notification.

In addition to compensating consumers, Sony BMG was forced to stop manufacturing CDs with both First4Internet XCP and SunnComm MediaMax software. The settlement also waives several restrictive end user license agreement (EULA) terms and commits Sony BMG to a detailed security review process prior to including any DRM on future CDs.

EFF and its co-counsel -- Green Welling LLP; Lerach, Coughlin, Stoia, Geller, Ruchman and Robbins; and the Law Offices of Lawrence E. Feldman and Associates -- along with a coalition of other plaintiffs' class action counsel, reached the settlement after negotiations with Sony BMG in December of 2005.

For more on the Sony BMG settlement:

For this release:

Record Labels Sue XM Radio

As has been widely reported, the four major record labels have filed a copyright infringement suit against XM Radio, based on the recording capabilities included in certain recently-introduced XM receivers, such as the Pioneer Inno and Samsung Helix.

The complaint makes it clear that the RIAA companies are gunning not just for XM, but for all innovators. Here are a few of the larger issues touched on by this lawsuit:

* An attack on home taping: In the RIAA's view, home taping is illegal, at least when done with today's digital tools. So much for fair use. So much for the Audio Home Recording Act (AHRA).

* Forgetting the AHRA: As XM has made clear in its public statements, its new receivers have been designed to follow the rules set out in the AHRA, which expressly legalized digital audio recorders, made device manufacturers pay a royalty, and gave music fans the right to engage in home taping. In the lawsuit against XM, however, the RIAA companies never even mention the AHRA.

* Transmission + Recording = Distribution: The RIAA has been trying to expand the scope of the "distribution" right on the backs of individual P2P file-sharing defendants in cases like Elektra v. Barker. The goal? To force broadcasters (and others who thought all they were doing was publicly performing music) to pay a second time for distribution licenses. If the RIAA wins on this score, then radio stations and webcasters are all in hot water, too.

* Inducement isn't just for pirates: In the wake of the Supreme Court's ruling in MGM v. Grokster, EFF warned that the newly minted "inducement" weapon would not be reserved for "bad actors." Sure enough, the complaint accuses XM of inducement based on the following statements in promotional materials: "Hear It, Click It, Save It!" "[XM] delivers new music to you everyday and lets you choose tracks to create your own custom playlists," "Record with the touch of a button," and "Store up to 50 hours of XM." Not exactly a pirates' "Ahoy," is it?

* Holding design against innovators. The RIAA claims that XM should be held liable for both inducement and vicarious liability because it could have designed its technology differently, an argument familiar from the MGM v. Grokster battle. Of course, in that case, even the Department of Justice (see fn.3) rejected the RIAA "you could have designed it differently" argument as baseless. If the RIAA succeeds this time, innovators could face liability whenever a court decides they didn't do "enough" to prevent infringement. The value of "enough," of course, will not be revealed to you until after you spend millions in legal fees and risk losing your company to ruinous statutory damages.

* Statutory damages as innovation's enemy: A big part of the chilling effect on innovation created by copyright law stems from the thermonuclear effect that statutory damages have in cases involving recording devices. Assuming 20% of XM's broadcasted songs each month are different from the last, that works out to roughly 500,000 different songs each year. Assuming Inno users are tuned in to at least half of those songs, the RIAA's complaint could result in statutory damages of $37.5 billion! This number obviously bears no relationship to the harm suffered by the recording industry (whose entire gross US revenues are less than $13 billion).

For more on this lawsuit:

For more on the RIAA's attacks on digital radio:

Support EFF By Donating a Printer

We are looking for donations of new, high-quality printers. EFF, like all legal firms, has to work with large quantities of paper documents. Can you help by donating a printer of the following minimum specifications?

B/W laser printer, like the HP 4350dtn, with:
* Ethernet
* Duplexer (to print both sides of the page)
* Minimum 1000 sheet input capacity
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* Ethernet
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* 11x17 paper size capacity

We are only interested in printers that are new. If you can help us, please contact

We'll provide you with a receipt of your donation for tax purposes and our extreme gratitude.


miniLinks features noteworthy news items from around the Internet.

Another Way to Register Gun Owners?
Another take on the risks of NSA data-mining.

Future of Music Policy Summit This October
Musicians, fans, technologists, advocates meet this fall in Montreal.

Keylogging the Coworkers
Eighteen percent of companies use a keylogger (or "hacking tool") on their own staff.

What Does Embedded TV Copy Restriction Look Like?
The future of (broadcast flag) law enforcement: how CGMS-A looks when it's turned on.

Baltimore Sun: NSA Had a Privacy-Preserving Alternative
NSA reportedly has a system that would have data-mined while better preserving citizen's privacy. They just didn't use it.,0,5970724.story?page=1&coll=bal-home-headlines

The NSA Answers Your Questions
All of them.

Worst. AT&T. Campaign. Ever.
We're beginning to think there's a mole in their ad agency.

Real's Glazer Blames DRM Lock-in for Music Industry's Woes
Of course, he'd prefer if they'd lock-in to his DRM instead.,,1771605,00.html

"I Don't Believe These Evil Elections People Exist," Says
Diebold E-voting spokesperson describes company's slightly overly optimistic threat model.

Senator Sununu Questions NSA Program
Conservative figures grow more skeptical of extent of the Administration's domestic surveillance program.

Why Discriminate?
Public Knowledge points out that even if the telcos think they need QoS, Internet2 developers found more bandwidth cures all ills.

Alaska Stands Against REAL-ID
REAL ID compliance bill killed by state legislators.

NSA Sweep "Waste of Time"
Worth it for the second image linking Al Qaeda to Kevin Bacon.

What's Wrong With ICANN's XXX Decision
Susan Crawford gives her insider's view on the latest ICANN process.

Senate Judiciary Panel Wants a Hook Into Telecom Reform
Bill That means committee fights in both House and Senate.

Journalists' Telephone Records Are Fair Game
No such thing as a private source when you use the public telephone system.

EFF Lawyer Explains to Newsweek Why Phone Records Matter
Kurt Opsahl answers the frequently asked questions about the case -- the ones that we can answer, that is.


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