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EFFector - Volume 19, Issue 37 - NSA Wiretapping Bills Stalled, For Now


EFFector - Volume 19, Issue 37 - NSA Wiretapping Bills Stalled, For Now

EFFector Vol. 19, No. 37  October 3, 2006

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 398th Issue of EFFector:

 * NSA Wiretapping Bills Stalled, For Now
 * Action Alert - Don't Let Cable Companies Ratchet Up Restrictions!
 * Who Killed TiVoToGo?
 * More Updates from Congress, WIPO, and CA State Legislature 
 * MGM v. Grokster: More Bad News for Innovators
 * Calling Sony BMG's Bluff: Canadian Rootkit Settlement Improved 
 * miniLinks (9): US Cripples Online Poker and Gaming Industry
 * Administrivia

For more information on EFF activities & alerts:

Make a donation and become an EFF member today!

Tell a friend about EFF:

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

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* NSA Wiretapping Bills Stalled, For Now

For the past few months, we've been urging you to tell 
Congress to stop legislation related to the illegal NSA 
spying program. These bills threaten vigorous judicial 
oversight of the program, including EFF's case against AT&T, 
and they could let the government off the hook for breaking 
the law. Thanks to your tireless efforts, Congress adjourned 
on Saturday without passing any of these dangerous bills.

Stalling the surveillance bills is quite an accomplishment, 
but this is no time to rest on our laurels. In five short 
weeks, Congress will be back, and so will this legislation. 
The November election gives you a chance to rebuke those who 
have supported illegal spying, and you can keep the pressure 
on your representatives by visiting our Action Center:

To learn more about EFF's case against AT&T for its role in 
the spying program:

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* Action Alert - Don't Let Cable Companies Ratchet Up 

Thanks to Hollywood and your cable provider, you'll face 
"digital rights management" (DRM) restrictions on your TiVo 
and other devices in the brave new world of high definition 
(HD) and digital cable. That's bad enough, but the 
restrictions could get even worse if cable companies can 
evade certain pro-competitive policies. Take action now to 
stop them.

In 1996, Congress directed the FCC to clear the way for 
useful, competitive alternatives to cable companies' 
proprietary set-top boxes, which haves annoyed customers and 
held up innovation for far too long. In the digital world, 
those boxes help the cable companies and Hollywood ratchet 
up limits on legitimate uses, like moving recorded content 
to portable video devices.

But cable companies have been dragging their feet on 
CableCARD, the credit-card size gadget meant to help create 
set-top alternatives. Their latest trick: asking the FCC to 
waive a rule that in effect requires their own set-top boxes 
to use CableCard to unscramble digital cable signals. This 
rule (known as the "integration ban") creates a more level 
playing field for CableCard devices. Without it, cable 
companies would be able to continue pushing their own 
proprietary set-top boxes on customers, treating CableCard 
devices (such as TiVo Series 3 HD) like second-class 

The CableCARD standard also prescribes awful restrictions, 
but if the cable companies succeed in killing it off, their 
set-top boxes won't face competition, and the DRM will get 
much worse. Competition from the CableCARD helps keep the 
cable providers' DRM in check -- after all, trying to put 
tighter restraints on customers is a good way to lose them 
to competitors.

Follow this link to tell the FCC that you support 
competition in cable-compatible devices:

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* Who Killed TiVoToGo?

Digital Cable and Satellite DRM Harms TV Fans and Innovators

San Francisco - Digital Video Recorders (DVRs) have changed 
the way millions of people watch television. But the new 
TiVo Series 3 for HD lacks a feature that past versions have 
had -- TiVoToGo, which allows users to move recorded shows 
to a computer or other device.

In a report released today, "Who Killed TiVoToGo?", EFF gets 
to the bottom of this digital murder mystery. The plot 
includes Hollywood, the Federal Communications Commission 
(FCC), and digital rights management (DRM) -- and it's an 
ominous tale for television fans looking forward to the 
widespread adoption of high-definition (HD) television.

"When you upgrade to HD TV, you will lose some of your 
favorite features on other digital devices," said EFF 
Activist Derek Slater, the report's author. "DRM 
restrictions won't stop 'Internet piracy,' but they will 
hamper your ability to watch recorded TV content wherever 
and whenever you choose."

Both digital cable and satellite providers must transmit 
their programming with DRM to satisfy Hollywood's demands -- 
and because of the Digital Millennium Copyright Act's (DMCA) 
restrictions on unlocking DRM even for lawful uses, 
innovators like TiVo have to get permission from Hollywood 
and the TV providers before creating compatible devices.  

TiVo Series 3 HD is one of many new devices that replace 
your typical cable set-top box by taking advantage of 
CableCARD technology. Because TiVo could not get permission 
to include the TiVoToGo feature in conjunction with 
CableCARD, the feature was removed.

"Had Hollywood and the TV providers obtained this kind of 
veto power years ago, the original TiVo might never have 
been created," said Slater. "Remember, Hollywood tried to 
stamp out DVRs when they first started to become widespread, 
suing DVR-maker ReplayTV into bankruptcy and comparing 
commercial-skipping to 'stealing.' TiVoToGo is the latest 
casualty in Hollywood's crusade against new technologies."

For the full report "Who Killed TiVoToGo?":

Learn more about cable and satellite DRM:

For this release:

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* More Updates from Congress, WIPO, and CA State Legislature

As mentioned above, Congress went into its pre-election 
recess on Saturday. Along with stalling the NSA wiretapping 
bills, your phone calls and letters to Congress helped stop 
tech mandates like the broadcast flag, the fair use-crushing 
Section 115 Reform Act, and the speech-chilling Deleting 
Online Predators Act. Your efforts truly made a difference:

Meanwhile, two huge victories for the public interest are 
within reach at the World Intellectual Property Organization 
(WIPO). The WIPO Broadcasting Treaty will get further 
scrutiny at two future meetings, and the Treaty's overbroad 
scope might be significantly narrowed. Member countries will 
also continue dialogue on the WIPO Development Agenda. 

Learn more about the most recent WIPO meetings here:

Learn more about the Broadcasting Treaty and Development 

In local news, California's state legislature recently 
passed a bipartisan, groundbreaking new law that would 
institute tough privacy safeguards for Radio Frequency 
Identification RFID chips embedded in state identification 
cards. Unfortunately, over the weekend Governor Arnold 
Schwarzenegger vetoed the Identity Information Protection 
Act and prevented Californians from gaining control over the 
personal information that will be broadcast by RFID-equipped 
drivers' licenses, library cards, and other important ID 
cards. While obviously disappointing, the fight's not over 
yet -- EFF and our partners will work hard to get this bill 
reintroduced and passed next year.

Read more about the veto:

Learn more about the bill, SB 768:

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* MGM v. Grokster: More Bad News for Innovators

The district court in the MGM v. Grokster case issued its 
ruling last week, granting summary judgment in favor of the 
entertainment industry plaintiffs against P2P software maker 
StreamCast Networks (the other defendants, Grokster and 
Sharman Networks, have settled). This comes 15 months after 
the Supreme Court ruling that sent the case back down for 
consideration under the newly-minted "inducement" theory.

EFF represented StreamCast from the beginning of the case 
through the Supreme Court proceedings. After the Supreme 
Court's ruling, we predicted that the new inducement theory 
would have a chilling effect on innovators. Yesterday's 
ruling bears out that fear.

In finding StreamCast liable for inducement, the court said:

"Thus, Plaintiffs need not prove that StreamCast undertook 
specific actions, beyond product distribution, that caused 
specific acts of infringement. Instead, Plaintiffs need 
prove only that StreamCast distributed the product with the 
intent to encourage infringement."

This is a remarkably broad statement, and it is at odds with 
the Supreme Court's view that an intent to encourage 
infringement must be accompanied by "clear expression or 
other affirmative steps" beyond the mere distribution of a 

Here's the nightmare scenario for innovators: if you 
distribute a product that can be used for infringement, 
copyright owners sue and seek to comb through every document 
in your company (emails, customer support records, 
engineering notes, etc.) looking for anything that looks 
like evidence of bad intent. If the lawyers find anything 
(how well-trained is your customer support staff? did your 
engineers have copyright debates in email? how did they test 
the product?), they will argue that intent + distribution = 
inducement -- even if you never advertised or publicly 
encouraged infringing uses.

And don't forget, this process is expensive. It cost 
SonicBlue three million dollars per quarter in legal fees in 
a lawsuit brought by Hollywood over the ReplayTV DVR.

The district court's ruling is one more reason to suspect 
that secondary liability rules in copyright are out of 
balance and chilling innovation.

For this post and related links:

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* Calling Sony BMG's Bluff: Canadian Rootkit Settlement 

Thanks to the quick action of the Canadian Internet Policy 
and Public Interest Clinic (CIPPIC), Canadian music fans are 
getting a better deal from Sony BMG.

As EFF and others reported, the proposed Canadian Sony BMG 
rootkit settlement lacks several important consumer 
protection provisions (e.g. disclosure and testing 
requirements) that were included in the U.S. settlement. 
Recently, CIPPIC filed an objection to the proposed 
settlement, challenging this glaring omission and the 
woefully inadequate and misleading "explanation" that Sony 
BMG offered for it. EFF submitted an affidavit in support of 
the objection, setting the record straight on the context 
and details of the U.S. settlement.

Taking note of the objection at a hearing on the settlement, 
the Canadian court required Sony BMG to give effective prior 
notice to Class Counsel and CIPPIC if it decides to use any 
DRM in Canada that has not already been independently vetted 
for security problems, as required by the U.S. Settlement. 
Thus, CIPPIC will be able to intervene to protect Canadians 
from becoming guinea pigs for DRM.

What's more, the settlement is not the end of Sony BMG's 
legal woes in Canada: it may now face investigations from 
Canadian regulators as well.

One of Sony BMG's lame excuses for the absence of stronger 
consumer protections in the Canadian settlement was that it 
only agreed to those provisions in the U.S. in response to 
pressure from U.S. government entities. Since the Canadian 
government wasn't leaning on Sony BMG as well, the label 
figured it didn't have to do the right thing.

Sony BMG's effort to rewrite history backfired. Taking up 
Sony BMG's implicit dare, CIPPIC filed complaints with five 
government agencies, calling for investigations into Sony 
BMG's conduct.

Now it's time for Canadian regulators to pick up where the 
civil litigators left off, and make sure Canadian customers 
-- and their computers -- get the protection they deserve.

For this post and related links:

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* miniLinks
The week's noteworthy news, compressed.

~ US Cripples Online Poker and Gaming Industry
Ordinary Americans lose access to favorite hobby as 
companies' stocks tumble.

~ AOL Sued for Search Data Debacle
Class action alleges violation of privacy laws.,,1882473,00.html

~ YouTube Strikes Deal With Warner Music
Deal will allow music videos to be distributed on site.,1759,2017138,00.asp

~ News Aggregation and Copyright
Google continues fighting with Belgian court...

~ Robots.txt, We Hardly Knew You publishers try to make their sites harder to 

~ Macarthur Grant for Social Entrepreneur and Human Rights 
Benetech Initiative provides computer security for 

~ Lime Wire Strikes Back at RIAA
P2P company counters copyright claims with accusations of 
innovation-stifling antitrust violations

~ United States Snooping Tramples European Privacy 
Belgium says data protection laws were violated.

~ First E-Passport Readers Installed
Brace for identity theft.

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)	

Derek Slater, Activist	

Membership & donation queries:

General EFF, legal, policy, or online resources queries:

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